21st Century Law—Cultural Resistance to Innovation
The legal system does not have an innovative orientation. In a time when technological innovations are transforming the marketplace, the absence of an innovative culture puts the legal profession and the ability to deliver quality legal services at risk. The 21st Century Practice Task Force was created to address that problem by developing a comprehensive set of changes, from the practical and immediately achievable to cutting edge initiatives. Staying ahead of externally driven changes to create the best possible future requires an ongoing, permanent commitment. The changes on the horizon are profound, particularly with the advent of artificial intelligence applications to legal processes. The rules and processes of the legal system will need to adapt at a much faster pace to take advantage of the new efficiencies while preserving quality. Jurisdictions that embrace the need for change and are most adept at adapting their rules and processes will not only be leaders in enhancing access to justice for their citizens but will also provide advantages to their business community and the jurisdiction's economic competitiveness.
Take advantage of the momentum for innovation already underway in Michigan, expanding the ongoing transformation of the court system through increased use of technology, triage, mediation, alternative dispute resolution, and the initiation of online dispute resolution. Accelerate changes in court rules and the rules of professional conduct to ensure continuous public protection and system improvement, taking advantage of service-enhancing technological developments. Establish Michigan as a leader in the ethical modernization of the delivery of legal services.
Basic Elements of the Plan
- Develop Justice Innovations Guidelines for adoption by the State Bar of Michigan and other interested stakeholders for use in identifying and promoting justice system efficiencies and innovations. The guidelines will help all stakeholders, including private vendors, communicate through a common vocabulary and shared goals, such as preserving fundamental rights, due process, procedural fairness, transparency, adequate oversight, and appropriate application of human judgment.
- Create a nonprofit Justice Innovations Center housed and staffed within the State Bar with an advisory board drawn from the State Bar, the Michigan State Bar Foundation, Michigan Legal Help, the disciplinary system, the legal aid community, law schools, practice management experts, relevant state executive branch agencies, and the business and academic communities. The advisory board's composition should include a legal futurist, and and an economist. The Center would help advance the Task Force recommendations beyond the First Steps, evaluate the most innovative ideas from other jurisdictions, develop ideas and applications for consideration by stakeholders, design pilots, identify redundancies and obsolescence in the court system and practice of law, and seek grant funding
- Monitor and evaluate other regulatory models on an ongoing basis, including entity and outcomes-based regulation and licensing/regulation of paraprofessionals, and advise on the desirability of adapting elements of those models to the regulation of legal services in Michigan.
- Evaluate the feasibility and desirability of adopting a rule-based definition of the practice of law in light of recent U.S. Supreme Court decisions.
- Create a taxonomy of legal services and delivery service models. Determine the practicality and value of creating standards for those services, and of regulating the individuals and entities that provide them (from simple registration to full licensing).
- Develop performance measures for delivery of legal services by lawyers and methods for self-evaluation.
- Develop standards for online dispute resolution.
- Develop a blueprint for an online dispute resolution system for migrating low-level, nonjail offense negotiation to an online process, and for small claims and low-level commercial cases provided there are no collateral consequences.
- Explore partnerships in the development and evaluation of ethics-based alternative business structure models.
- Research the feasibility of using nonjudicial officers to enter consent divorce decrees based on signed notarized forms.
Justice Innovations Guidelines
Justice Innovations Center
Thinking Through the Problem
Positive change requires persistence. The Justice Innovations Center can be the critical engine for persistent innovation.
Among the ideas generated by the Task Force are dozens that need further vetting, incubation, socializing, mapping, testing, refinement, or development before they are ready for the decision-makers. A prime example is the creation of a New Lawyer Institute. There are several models in operation today, with varying degrees of success and cost. The Justice Innovations Center would be the ideal place to evaluate the various models and how they fit into Michigan's needs and requirements and the Task Force's other recommendations.
The Task Force notably did not come to a definitive conclusion about a big question under intense debate in the legal community—is it necessary to loosen or lift the rule banning nonlawyer ownership of law in order to compete with the new legal market "disrupters" and promote desirable, ethical innovation in legal services? The evidence on the answer is mixed, but it is accumulating rapidly, particularly from Australia and the United Kingdom, and suggests that the answer must take into consideration the entire regulatory structure and support for access to justice. Meanwhile, market forces or legal challenges may quickly call the question. States whose regulators fail to carefully consider the pros and cons of this issue and develop a well thought out evidence-based ready-to-implement action plan risk missing opportunities for greater access to quality legal services, as well as potential competitive advantages to the state's business climate. The Justice Innovations Center can be an important resource for developing such a plan.
Listening to Voices of Change
Julio César Betancourt & Elina Zlatanska. Online dispute resolution (Dec 2015). (0:2:16)
Colin Rule. Online dispute resolution (July 2015). (0:6:00)
Uncontested divorce in Mecklenburg County (Dec 2014). (0:2:30)
What 21st Century Task Force & Committee Members Had to Say
"Change is coming to the legal profession. We can either embrace that change and attempt to harness it for the good of the profession and the public, or we can let it happen around us. The latter course will let nonprofessionals lead the charge--not a good idea! The Bar needs to quickly stake out a leadership position with regard to change."
Christopher G. Hastings, Access & Affordability Committee
"The public and our clients are getting savvier. If we had a definition of the practice of law we could help people evaluate better what they need and whether a lawyer or nonlawyer can adequately address the service they need. Let's help meet them where they are. I'm excited for our next steps—there is more change to come."
Jerome Crawford, Practice Committee
"The work of the Task Force is excellent, extraordinary and should be commended. The legal profession is not the only profession that is restructuring—the music industry, the taxi cab industry, and the hotel industry all have had their business models disruptively challenged by the Internet. We are not alone in our discomfort, and we should be the voice of perspective, hope, and support in a time of uncertainty and discomfort."
Victoria A. Vuletich, Regulatory Committee
"Law firms and the licensed legal industry must think like other businesses. My law practice identifies low and moderate income people as our target market. We have a statewide model and although the tradition of a local practice is a challenge, it is also an opportunity. We are the primary care attorneys and handle the whole case from the Detroit area. We use "litigation attorneys" in other areas for court representation. Serving the whole state allows us to get much more volume. A lawyer can go online to establish presence, use practice management solutions like Clio, Rocket Matter, and My Case, communicate online with clients, go paperless, scan everything in and avoid paper files for clients by using box.com or Dropbox to share with clients and your other attorneys."
Bert Whitehead IV, Practice Committee