COVID Challenges and Opportunities

Thinking outside of the courthouse

COVID Challenges and Opportunities

♫ Big dreams becoming real tonight.
So, look at me and this opportunity.
You’re witnessing my moment, you see?... ♫

— Music and lyrics by W. Gluck, S. Furler, G. Kurstin, recorded by Sia.

What has COVID done to the justice system? For decades, if not centuries, the structure of the justice system has been largely unchallenged. COVID (and technology) upset the applecart and necessitated thinking in regard to how justice ends can be reached in new and different ways.

Let us examine the structure of the justice system:

  • Synchronous: All parties must attend the courthouse at the same time.
  • Serial: Each case follows the one before it in order to be heard by the presiding judge or court official.
  • Expensive: Each brick and mortar courthouse has to be built and staffed.
  • Geographically Tied: All parties must attend the court that is hearing the case.
  • Jurisdictionally Tied: For the most part, each case is heard according to the laws of the jurisdiction where it is filed.
  • Adversarial: Win/Lose not Win/Win.
  • Involves Transactional Costs: TC = hard costs + loss of opportunity costs. The longer the resolution, the greater the transactional costs.
  • Involves Delays: We all know the delays in the justice system. Justice delayed can result in justice denied.
  • Limited Availability: Courtesy of the internet, banks are open 24/7. Courts, however, are not.
  • Involves a Judge: For the most part, a case must be heard and determined by a judge. This means that a judge represents a bottleneck in the system.

Given COVID, the challenge is: How can you structure a justice system that tries to break down one or more of these constraints? What would that system look like? What advantages could flow to disputants and others that don’t currently exist in the present justice system? What about disadvantages?

We have seen “Innovation Sandboxes” arise in many jurisdictions, starting in Utah and now spreading outwards. For example, the Law Society of British Columba states:

“The objective of our Innovation Sandbox initiative is to improve access to justice by improving access to legal advice and assistance.

Through participation in the Law Society’s Innovation Sandbox, the Law Society of British Columba is committed to helping lawyers, law firms and others interested in providing legal services develop innovative ways to improve access to legal advice and assistance. The Innovation Sandbox is a “safe space” for those not currently authorized to provide legal services and for existing firms to test ideas in a controlled environment that are likely to benefit the public.”

This is a welcome step forward. But the innovations are limited to providing legal services. Here is the challenge: Can the justice sector take the next step and bring in a sandbox that seeks justice innovation solutions? What would that look like? BC is already known as a world-leader for its innovation in this area (per “The Civil Resolution Tribunal (CRT), in British Columbia, gets global coverage as the first operational online formal small claims jurisdiction.”

India, the UK, Singapore, and others are all looking at BC’s Civil Resolution Tribunal. COVID has presented us with both a challenge and an opportunity. We have demonstrated that BC can be a world leader in innovating in the justice sector.  Why stop now? We could be witnessing another BC big moment

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