'Problems on many fronts', the state of judicial reform: Issue 8
'Problems on many fronts', the state of judicial reform: Issue 8
What have 18 years of virtualisation and piecemeal attempts to reform brought us?
In this issue of the legal tech digest, I cover three stories with a common larger question: What is the state of reform in the legal services and justice industry, and are we indeed making progress in the right direction? These stories are in the “from the vanguard” section.
Next, in opportunities, there are a few course recommendations on legal / justice tech from UNESCO, A2J, and NYU respectively. Also, see a few job opportunities for legal tech roles in India.
Lastly, in the essential readings section, there are two recommendations.
The first is a lecture by Sir Geoffrey Vos, a British judge and Master of the Rolls who talks about dispute resolution mechanisms we may need by 2040 in light of upcoming technologies.
The second is a highly practical research paper addressed to General Counsels and in-house teams that argues why current digital transformation frameworks don’t work and suggests what to do about it.
If you are reading this issue on the website, you will find embedded PDFs, bookmarks, and other rich media on the webpage itself.
From the vanguard 🚀
“You have problems on many fronts”, SC tells Bar Council (but misses the point?)
A Supreme Court bench is hearing an appeal by the Bar Council of India against an order of the Gujarat High Court. This appeal was in the context of allowing enrolment as advocates without having to quit their previous employment (note that the current regulations prohibit enrolment of advocates while being employed in another job).
During the hearing, the Court raised concerns over the Bar Council’s ability to regulate the enrolment of lawyers and the standard of legal education in the country.
“Be it the Bar entrance exam or accountability of law colleges that have mushroomed in the country... you (BCI) have problems on many fronts. You need to maintain certain standards at every step.”
4 questions have been formulated and awaiting BCI’s response:
BCI rules currently prohibit anyone employed in another profession to be enrolled as an advocate in India. How can a balance be struck between the right to practice and ensuring ethics are maintained in the legal profession?
Lack of accountability from law colleges and absence of faculty, how to ensure that quality requirements are met by law schools not once but continually
The effectiveness of the current standard of the Bar exam, the need to test analytical skills and to reduce bad practices that encourage rote memorisation
Evolving a fair system for juniors to get placements
Opinion: From a reading of the order, it seems that after the formulation of the questions, the discussion has quickly gone into discussing ways in which these outstanding matters can be resolved, which the Bar Council is instructed to consider and revert with its replies. The concern here is that there seems to be a piecemeal approach to addressing individual components that are symptomatic of larger, deeper questions that involve a much more nuanced and careful look at the process of lawyer formation in India.
For instance, the question related to who can practise law in India continues to remain poorly formulated and ambiguous. Till recently, it may not have had wider implications. But in light of technological developments and the changing economics of legal services, the failure to resolve the ambiguity has much more serious consequences on innovation and entrepreneurship.
Legal services today are increasingly being provided by legal companies in addition to legal professionals, which the lawyer formation process in India does not account for. Cases such as these are an opportunity to review the fundamental problems from first principles and through the lens of the current reality, which regrettably, continues to be passed on.
Legal education is in a similar situation. Silo-ed questions (such as placements, bar exams) continue to get discussed out of context, without doing a holistic study of all the moving pieces in the area of legal education. For instance, despite market demands and grievances of law schools that courses on practice management and technology should be integrated, the rigid curriculum structure does not leave any wiggle room for law schools to update their curriculum in line with current socio-economic needs.
The Bar Council is expected to file its replies on 12 April, which I will track and report on (assuming there are any noteworthy developments).
“Ramshackle state of judicial infrastructure”: What have 18 years of eCourt project brought us?
An editorial titled “Too little, too less” takes an incisive look at how far (or not) we have come since the establishment of the e-Committee responsible for the virtualisation of the judicial infrastructure.
As the author reports, 10% of the courts reportedly don’t have access to the internet, 100+ court complexes don’t have a washroom for women, and 91.36% of funds allocated for infrastructure development remain unused.
Despite there being a number of initiatives, launches, and ribbon-cutting ceremonies, adoption rates remain low. Lack of a change management framework, improper utilisation of funds, and lack of a streamlined system for digital infrastructure for the judiciary continue to remain critical challenges.
Phase III of the eCourts project envisions a platform-based approach to judicial infrastructure to bring in more modularity in the integration of technological solutions. Raman Aggarwal of Jupitice has earlier explained to me in plain language why this is a promising improvement over the previous “cylindrical approach”.
Judicial pendency is a “hydra-headed monster”, all of us have contributed to this crisis
In a Bar & Bench editorial, the authors look at the problems plaguing the Indian judicial system and argue that we are focusing on the symptoms rather than the cure.
The authors caution that blaming the judiciary for the situation is short-sighted and incorrect, and that “all the stakeholders including the Bar, the litigants, and the government have contributed to this crisis”.
They cite examples of several initiatives that have been taken up in the name of judicial reform and have argued why they have not worked / couldn’t have worked.
The authors seem to echo a larger concern: that a piecemeal approach towards solving the larger crisis is deeply problematic, and we must take a holistic approach based on a “strategy of not just reducing existing pendency”, but also taking steps “to reduce the pipeline of cases so that expeditious dispensation of justice [...] becomes a reality”.
They propose a set of principle-based solutions, including a comprehensive strategy for data collection and analysis at all judicial and quasi-judicial levels, increasing access to information to the general public, and ramping up digitization and technological facilities.
Justice Chandrachud emphasises the role of smart contracts in arbitrations
Speaking at an arbitration conference in Dubai, Justice D.Y. Chandrachud has emphasised the role that smart contracts can play in commercial contracts. He explained how the terms of contracts can be encoded in smart contracts and how the breach of terms would automatically enforce the contract in accordance with its pre-coded rules.
For eg, if there is a clause in the contract which stipulates that the payment for rented articles must be made on the 7th of every month, then a non-payment of the rent within the stipulated time would automatically enforce the penalty clause.
One example of smart contracts in the insurance sector in providing travel insurance through a smart contract so that when the transport is delayed, the compensation for delay is automatically credited to the account of the insurer.
- Justice Chandrachud
There were also comments made on artificial intelligence, inherent bias in technological systems, and a review of global initiatives to this effect. For a more detailed account, read this LiveLaw report.
99% of lower courts in India are now connected via WAN, claims DoJ
According to the latest data from the Department of Justice (DoJ), 2961 out of 2992 court complexes now have WAN connectivity. The issue of connectivity has assumed significant relevance, especially after the Covid-19 pandemic, when courts faced great pressure to facilitate online hearings.
Whether the eCourt services now enabled are performing as intended is an issue that remains to be seen, as according to reports and user accounts, internet connectivity in many court complexes remains subpar.
The Wide Area Network (WAN) project is a part of the eCourts initiative created to ensure data connectivity and reasonable bandwidth speeds.
Opportunities in legal tech 🎓
UNESCO announces a global MOOC for judicial operators, over 4000 join
This initiative has been announced in response to a 2020 survey in which judicial operators across the globe were interviewed, an overwhelming 85% had expressed interest in formal training about the working of AI systems and how judicial operators should interact with AI systems.
The course, named “AI and the rule of law”, addresses two primary issues:
How judicial/administrative officers can use AI to improve access to justice;
How issues like bias and discrimination due to the role of AI should be dealt with.
The course is offered in 7 languages and features case studies and best practices from a number of countries including India, Brazil, Senegal, and Kenya.
Register here for free.
A computational model of facilitation in Online Dispute Resolution (event)
Despite the promise of ODR in improving access to justice in society, there remain significant challenges such as expense management and the availability of facilitators. To address these challenges, Dr Karl Branting the Chief Scientist at Machine Learning for Computational Law (MITRE) is doing an online talk on 8th April 2022.
Dr Karl proposes a model implemented in a decision-support system (DSS) that fulfils two objectives:
Intelligent case monitoring that can help detect situations needing immediate and urgent attention, and
Automated selection of standard text messages as applicable to the current state of the negotiations
The link to the event is here.
Open Justice from NYUx (course recommendation)
An introductory course aimed at teaching how technology, data, and innovation can improve our legal system.
The course explains the concept of open data and open justice, the mindsets behind open justice, case studies of real-world open justice projects, and guidance and strategies for implementing open justice projects.
The course is free (unless you want a certificate). More details here: Open Justice
Design no-code legal tech apps: Legal document automation with Afterpattern (course recommendation)
This course may be of interest to those interested in creating legal tech applications but don’t have a technical background or coding knowledge. It was available for free for 24 hours on March 18, 2022, and is now only available as a paid course.
Examples of use cases that the course should help you tackle:
Creating workflows for document assembly, auto-populating documents from form data or databases
Create information products, productized services in the legal domain.
Legal tech jobs 💼
VIDHI has various positions open, see their careers page. To those interested in legal technology and reform of the legal industry, the position of Research Fellow at JALDI may be relevant.
Quant LegalTech is looking for a VP of Engineering.
Clifford Chance is looking for a Project Analyst, a PMO analyst, and a Process Expert to work in its Delhi office.
Essential readings 📚
The future for dispute resolution: Horizontal scaling
Watch this lecture organised by the Society for Computers and Law, given by Sir Geoffrey Vos, a British judge and Master of the Rolls.
He reviews the state of affairs of our dispute resolution mechanisms as they stand today (note: this is in the British context, but much can be extrapolated and generalised for other jurisdictions).
He describes the current framework as a 3-step model of digital justice. That is the starting point of the discussion. Given the current state, what are additional variables that we need to keep in mind when developing justice infrastructure for the future?
While our legal infrastructure plays catch-up, how will we address technologies that are emerging today, and will shape much of our world in the coming 20 years?
The lecturer then looks 20 years out into the future and pre-empts the kind of dispute resolution system we will need to have to accommodate for the coming generations.
Watch the lecture here. To read the transcript of the lecture, click here.
Don't Let the Digital Tail Wag the Transformation Dog: A Digital Transformation Roadmap for Corporate Counsel
This scholarly paper written by Michele Destefano, Bjarne P. Tellmann, and Daniel Wu, addresses the current lack of scholarship on the specific issue of how General Counsels are approaching digital transformation, why a lot of isn’t working, and how they can approach DT instead.
The paper is based on interviews from various GCs and secondary research. It first formulates the current legal department process as a “Three-Phased Digital Maturity Framework”, and provides foundational reasons for its failure.
GCs are leaving the most difficult aspects of DT—the organizational and structural, behavioural, and cultural changes—for last. This post-hoc approach (that leaves client-centricity and change management last) is disruptive, adds unnecessary cost, and threatens the credibility, viability, and timing of the entire DT effort on a go-forward.
Instead, the paper proposes a 5 step model for how to approach digital transformation which focuses first on (1) the design of the service delivery model, (2) optimisation of processes (3) in alignment with the broader business context.
The paper may also be of relevance to law firms and other legal service providers who are looking to better serve “their digitally transforming client base”
That’s it for this issue, folks.
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Namit
Nice read.