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Virtual law post-COVID-19: Will justice thrive in a Zoom future? | Philip Holdsworth

Friday, June 12, 2020 @ 2:57 PM | By Philip Holdsworth

Philip Holdsworth %>
Philip Holdsworth
On May 4, Justice Frederick Myers made the Ontario Superior Court’s position on virtual appearances abundantly clear in just two words: “It’s 2020” (see Arconti v. Smith 2020 ONSC 2782). 

COVID-19 has shocked the judicial system into the digital age, forcing justice to be administered via digital platforms. Video hearings are only a part of this new era of virtual law and Zoom is just the first example of how our legal future will exist in the digital world.

The convergence of technology and process has always created opportunities to take a different approach to the design of legal systems, increasing access to justice in the process; however, the legal profession has struggled to take advantage of these opportunities. Courts are only just beginning to grapple with questions about the rights and interests engaged by videoconference hearings.

As Justice Myers wrote, “Technology is a tool, not an answer.” Our legal system needs a framework to evaluate it.

User Centered Legal Design (UCLD) offers a succinct framework through which to approach the complex questions about procedural and substantive rights and interests that will emerge as we transition into the fourth industrial revolution. If done right, the legal legacy of COVID-19 could see the most significant expansion in access to justice in decades.    

Why Zoom?

The zoom to Zoom, as the solution for court appearances, wouldn’t have been obvious even six months ago, despite existing video platforms that might have filled the gap created by the exponential growth in demand. For years the Ontario Ministry of Justice has tried to incentivize parties to use CourtCall to little success.

Zoom’s popularity stems from the company’s mission to make enterprise “video communications frictionless.” Its platform design facilitates functional videoconferencing in just a few clicks, without downloading a program or creating an account. It is perfect for communications that demand face-to-face interaction among people of varying technological competence.

Before COVID-19, Zoom produced features in response to the needs, preferences and behaviours of the businesses using the platform. Waiting rooms, break-out rooms, screen sharing and document sharing only begin to scratch the surface of the dynamic feature set available to hosts on Zoom.

The Rules of Civil Procedure, as a system of integrated process rules, is similarly designed to achieve substantive outcomes — it’s just written in a different semantic language. But it has taken a pandemic to properly emphasize how the absence of competitive markets for the provision of legal services has allowed the industry to lag behind other sectors in capitalizing on platform technology. One can only hope B.C.’s Civil Resolution Tribunal is the tip of the spear, in a digital revolution in legal systems innovation. 

The medium and the message

Into the COVID-19 breach steps Zoom, its functionality mapping with apparent seamlessness onto core aspects of the practice of law. But technology’s transformative capacity to solve procedural questions through automated solutions is both a strength and a liability.

It’s imperative that we don’t simply graft a digital layer onto the existing procedural systems currently designed to moderate and arbitrate competing legal rights and interests in society. We can build new rules with new digital tools.

Using technology to simplify procedural dynamics in a system still introduces an additional layer of complexity in the hierarchy of users’ competing interests and the pursuit of both procedural and substantive justice. With videoconferencing, the line between the medium and the message is blurred. The ability to encode and automate the enforcement of procedural rules with fidelity does not solve questions of procedural or substantive fairness.

When features scale, they can generate compounding negative externalities at a systemic level. It is too easy already to overfit rules from single cases when we apply them to systems as whole, without the compounding efficiency of digital technology.

User Centered Legal Design

UCLD asks whether the product/service provides useful, usable and engaging solutions, taking a holistic view from the perspective of the objectives of the user. UCLD applies this lens to users of the legal system. This holistic approach necessarily encompasses an appreciation for individual objectives within the context of the systemic objectives of the legal system as a whole.

Features of a digital built environment can help navigate the relationship between the individual user’s objectives and those of the system, while scaling drives down marginal costs. Parties can tailor a virtual venue’s procedural and communication features to their needs, within broader systemic principles of co-operation.

Technology may enable us to automate a forest of procedural complexity through virtual hearings, but it won’t solve the deeper question of whether a user’s substantive experience aligns with their objectives for engaging with the system in the first place.

Zoom’s “frictionless” experience also imposes trade-offs with users’ cybersecurity and privacy. Its data processing systems were sufficiently insecure that some governments and major corporations banned its use. (Editor’s note: In late April, Zoom CEO Eric Yuan announced the release of a new version of the app that contains more encryption features, part of the company’s 90-day security plan.)

There are smart resources, critiques and analyses to develop the digital literacy to use, and the vocabulary to explain, the trade-offs in rules-based systems mediated on digital platforms. We can learn from each other. Videoconferencing literacy has cratered the cost of information sharing, which may just be the superpower we need, together with public participation, to build this new vehicle of virtual law, while in motion.

There is no better time than now, when we are naive to the possibilities the transition to virtual law could facilitate and find innovative, empathic solutions in law. If we survived the transition to the fax machine, we can survive the transition to Zoom.

Philip Holdsworth is an associate at Robins Appleby LLP, specializing in civil and commercial litigation.

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