21st Century Law—Inefficient & Overly Complex Legal Processes
The legal profession has been reticent to modify litigation processes, court rules, and business practices in ways that may deliver more efficient and inexpensive solutions to legal problems. The organized bar and regulators have not taken up the challenge of creating, evaluating, testing, or implementing significant changes that utilize existing business process tools and technologies to create a more efficacious system.
Simplify unnecessarily complex legal processes and court procedures, adopt appropriate cost-saving technology, and apply business process analysis. Provide efficient, effective, customer service in an accessible technological environment that will ensure convenient, timely, appropriate access to courts and other legal processes and information. Engage in constant innovation and evaluation.
Basic Elements of the Plan
- Modify court rules to reduce the expense and burden of civil discovery.
- Research whether pretrial discovery and practice should be tailored on a case-by-case basis, taking into consideration the parties' financial resources and other relevant factors.
- Modify court rules and administrative procedures to better utilize mediation and alternative dispute resolution (ADR).
- Promote business process analysis, problem-solving court principles, and best practices to courts, law firms, legal aid programs, and other justice system entities.
- Make problem-solving courts and specially trained judges available to all litigants through statewide venue provisions and flexible case assignments. Apply problem-solving principles and best practices to conventional legal processes.
- Streamline probate and the entry of consent divorce cases; identify types of cases that may be successfully removed from the judicial process.
- Standardize and simplify all court forms and practices, while preserving the ability for lawyers to provide supplemental information as needed to address the needs of particular clients.
- Develop a strategy to promote an expectation and culture of routine business process analysis for ongoing improvements in legal services delivery and court processes.
- Create a State Bar of Michigan special committee to make recommendations on pretrial practice innovations and to identify types of cases that may be removed from the judicial process.
- Establish a special committee to develop comprehensive amendments to court rules concerning mediation and ADR. Promote the use of properly trained mediators or special masters to expedite the discovery process.
- Educate State Bar members regarding new and proven innovative law practice business models, such as primary care, sliding scale, and not-for-profit law firm models to improve the economic viability of solo and small firm practices, while expanding service to underserved geographic areas and populations.
Culture of routine business process analysis for ongoing improvement in legal services delivery and court processes
Civil process innovations, focusing on pretrial reform and removing appropriate types of cases from the judicial process
Online dispute resolution pilot programs
Statewide venue specialty courts
Tech-assisted remote legal services delivery
Thinking Through the Problem
Technology offers intriguing opportunities to make the justice system and legal services less costly, more convenient, less mystifying, and more accessible. However, technology alone does not guarantee improvement and can complicate service delivery and increase costs. Without thoughtful process analysis, automation can be the equivalent of paving a cow path rather than building an efficient superhighway.
Michigan is well-positioned to realize the vision of a more efficient, accessible, and affordable justice system through the smart application of technology, standardization, and business process analysis. With the strong support of the State Bar, Michigan's judiciary is already taking innovative, data-driven steps to make the court system more accountable and effective Thoughtful implementation of technology increases efficiency and convenience, improves access, reduces costs, streamlines operations, and utilizes scarce resources more effectively. The Michigan Supreme Court, working with the State Bar and Michigan Legal Help, has simplified and standardized a wide variety of court forms. These changes have begun to pay dividends. Every Michigan court now uniformly and regularly surveys public satisfaction with the legal process. In the 2015 survey, 87 percent of respondents said they were able to get their business done in a reasonable amount of time, 93 percent said they were treated with courtesy and respect by court staff, and 83 percent said the way the case was handled was fair.
Problem-solving courts have dramatically improved outcomes in many Michigan courts and should be replicated throughout the judicial system as expeditiously as possible. Business process and project management analysis are used to provide value to individual clients and included in the law school curriculum. The State Bar can play a role in facilitating better understanding and dissemination of these successful techniques. [insert story here of successful business process analysis office turnaround in Michigan?]
Continued and expanded collaboration among all components of the legal system will establish a culture of continuous improvement based on business process analysis, reliable data, and creative innovation. The 21st Century Practice Task Force process is an example of the needed collaboration. The three Task Force committees identified several specific areas that are ripe for reform based on business process analysis and court rule amendment: pretrial processes, civil discovery, mediation, ADR, probate procedures, and uncontested domestic relations matters.
Listening to Voices of Change
Daniel W. Linna Jr. Law practice analysis. (0:2:15)
Hon. Cynthia D. Stephens. Speciality courts. (0:1:40)
Daniel W. Linna Jr. Court business process. (0:1:24)
Daniel W. Linna Jr. Improving access to legal services through education, RnD, & innovation (Aug 2015). (0:15:50)
What 21st Century Task Force & Committee Members Had to Say
"Everything we do as lawyers takes too long. Huge inefficiencies are built into the timetables for court and administrative procedures, including the discipline system for our lawyers. People outside the profession cannot grasp why legal procedures take so long. The obvious conclusion they draw is that the timetable is designed to benefit lawyers, not the public. That is becoming the fatal flaw in our legal profession."
Carl E. Ver Beek, Regulatory Committee
"I'm hoping the Task Force recommendations will help increase the use of alternative dispute resolution, and explore online dispute resolution more seriously. These are highly effective but underutilized problem solving tools."
Antoinette R. Raheem, Access & Affordability Committee
"There's been a lot of talk about technology but I think we should talk about process first, and ask where we as practitioners can improve legal services. The public does not understand what lawyers do to add value. We lawyers have done a poor job of delivering value and communicating how we deliver value. We need to work to develop best practices and standards so that we can improve the value and quality of legal services. We must embrace process improvement disciplines like lean continuous improvement. We must create systems that are simpler, better, faster, and less expensive. We must first improve how we deliver legal services and then leverage technology to better serve everyone."
Daniel W. Linna Jr., Access & Affordability Committee
"I am so pleased that the State Bar provided an opportunity to have this conversation. In 2016 every profession and industry is looking at the world around us. Similarly, the Task Force considered the bigger picture in making its recommendation. There are nonlawyers practicing law every day, and legal consumers are uninformed and unsuspecting, so the potential for harm is great. This is why I am such a proponent of alternative legal services models, such as multidisciplinary business practice, which offer one stop shopping to consumers to fully serve their legal and nonlegal professional needs in an ethically regulated environment."
Jeffrey F. Paulsen, Practice Committee
"From my statewide work, I hear about court processes that are extremely inefficient and frustrating to clients and lawyers. Even small changes, like staggering the starting time for motion dockets, would help. Technological solutions are available too, though it's stunning to me to talk with attorneys around the state who don't have email addresses, or say their secretary takes care of that. This is 2016. E-mail and low-cost scanners are very efficient ways for business to get done."
Marla R. McCowan, Practice Committee
"My work with the Task Force caused me to envision a 21st Century justice system with many more paths to legal problem solving, dispute resolution, and decision making than our current system allows. We should move ahead swiftly to establish justice innovation guidelines to protect fundamental rights, find new efficiencies, and create a more sensible system."
Deborah J. Hughes, Access & Affordability Committee