♫ If not today
If not tomorrow
Maybe in a week
No matter how far I push it
It needs to find me
Lyrics and Music by Booker T. Jones, James Edward JR Olliges, recorded by Booker T. Jones.
Sometimes change happens so slowly, you don’t notice it. Sometimes change happens so quickly, it doesn’t notice you (Ashley Brilliant)
Oct. 28, 2019 was a day in Canada unlike most others. You may not have noticed anything different, even if you were in the legal community. On that day, Provincial Court of BC’s Chief Judge Melissa Gillespie hosted the province’s Chief Justice, Robert Bauman, and Jennifer Muller, a former self-represented litigant (SRL), in a live Twitter Town Hall. For two hours, the group engaged in twitter discussions with their Twitter audience from not only in BC, but across Canada and the world.
A good review of the proceedings, parties participating and topics discussed can be found here: https://www.provincialcourt.bc.ca/enews/enews-19-11-2019.
Since the proceedings have been covered in depth in the noted article, I wanted to discuss what I find momentous about this event and possibly, comment on its future implications.
Without deviation from the norm, progress is not possible (Frank Zappa)
There is no denying that we have an access to justice issue in the courts and society, not only in BC or Canada, but world-wide. Different approaches are being tried in many locations with the best of intentions, aiming to improve access to justice. However, if these approaches fall into the category of ‘more of the same’, then one is left with the distinct impression that these efforts are little more than flogging a dead horse. Or as Albert Einstein famously said: “Problems cannot be solved with the same mind set that created them.”
One thing that happens when you reach out to the world. You receive information about approaches that have been developed elsewhere and then enter into a meaningful discussion as to their applicability here. For example, there was the tweet:
“Domestic Violence courts are really amazing! Toronto’s integrated domestic violence court pilot (criminal and family under one judge) was a huge success. When will we see something like it in BC?”
Ron Usher noted in another tweet:
“The use of technology in B.C. Securities Commission hearings is impressive, well worth taking the time to sit in on a hearing.”
These tweets and others like them lubricate the pump of thinking outside of the box. Studies and research articles were mentioned and noted and helped raise the level of awareness of the current thinking of the subject of access to justice world wide.
In fact this Town Hall not only generated thought inside of the Province, it reached far beyond. Chief Justice Michael Wood in Nova Scotia had a question that was asked via video clip embedded in a Tweet. His question (here I have paraphrased) was, given BC’s huge geographic distances, whether BC courts have found ways to make meaningful use of technologies to assist in outreach out to remote communities without losing the personal touch that they have found in Nova Scotia to be so important.
The Justice Education Society replied that they were working to assist judges in BC reaching out through the use of live streaming technology.
Change always means no longer doing things in the ways that you have always done them. Or to quote Christopher Robin, I always get to where I am going by walking away from where I have been.
Think, then Think Differently
In the Town Hall Discussion, there was inherently a recognition that the solutions lay in ideas that are outside of the traditional ‘way of business”.
For example, this tweet from Jennifer Muller:
“^JM: #A2JChatBC For there to be real change in the ways users of the system can access justice, justice stakeholders need to decide to act on A2J and do it differently – collaboratively and experimentally – putting users at the centre.”
The problem, in part, is due to the fact that the justice system has a long history and tradition. Change, in other words, comes slowly. Consider that the Air India Trial started in April 2003 in Courtroom 20 in the Vancouver Law Courts. That courtroom, along with being a high-security courtroom, facilitated a long high-tech criminal trial using an array of technologies. Yet in the 16 years since, there have only been a handful of cases using similar technologies, despite all the evidence that these technologies not only sped up the trial but facilitated many aspects of the work of the lawyers, of the judge and of court administration.
When it comes to technology, one could be faulted for saying that the justice system does not seem to turn to technology for solutions.
Accordingly it is refreshing then, to see Chief Judge Melissa Gillespie and Chief Justice Robert Bauman turning to Twitter to conduct their Town Hall with the world.
Jennifer Muller stated:
“We need to do things differently and try things that haven’t been tried. Collaborative approaches vs. adversarial should be the default, let’s start with small things: improve court scheduling with tech to save users time and money.”
Change, like justice, must be seen and not just heard …aka…don’t just talk the talk, walk the walk.
Technology is only a tool. Yet it is a very powerful and societal changing tool. The application of technology has been responsible for bringing into being the next phase of human progress, namely the Information Age. Yet the changes wrought by information technology in the legal sphere in general and the justice system in particular, have been relatively minor compared to the disruption that has occurred in other professions and industries. Judges, court administrators, lawyers and of course, the public have called up all participants to address the access to justice problem. Questions are many; answers are few. The justice system must not only be seen to be actively calling for and supportive of solutions to address access to justice; it must also be seen to moving towards changing itself to be part of any real efforts to seek change. In this regard it must demonstrate that it is open to technological change or be subject to criticism that it itself is part of the problem.
Certainly the courtroom of today must be prepared to handle the move to paperless trials and video evidence. Court processes can benefit from full or partial automation in much the same way that law firms have done. Conferences that focus on emerging systems aiding court processes inform judges and court administration worldwide and help bring about knowledge, alignment of systems and with it, change. Furthermore the movement world-wide to online dispute resolution (such as our Civil Resolution Tribunal in BC) completely depends on the use of internet and communication technologies. Moreover, judges, as the pinnacle of the system, must not only support the call for change, they must be seen to be active change agents within it.
The Twitter Town Hall could not have taken place without The Internet and enabling technologies. A different social media platform could have been chosen with differing results. Twitter allowed a diverse audience from all points on the compass to join in, see the questions, read the answers and in turn, ask and have their questions answered. Ask yourself where, on or off the Internet, is it possible to engage in a discussion such as the one that occurred on Twitter, with judges and others? Possibly in a conference where judges are invited to speak and take questions, but those events would be limited to those who could attend in the same physical location at the same time. In the Twitter Town Hall, the conversations were asymmetric, meaning that one speaker did not have to wait in line at a microphone to ask his/her question one after another. Furthermore the record of the tweets, asked and answered, is fully available now to anyone by going to Twitter and searching under the hashtag #a2JChatBC. The record clearly shows the level of engagement that took place.
No machine is above the law
How do you judge (pardon the pun) that the Twitter Town Hall was a success? What are the criteria?
For one, it is rare for any member of the legal profession, much less the public, to be able to ask questions of a judge. Even in courtroom engagements, it is the judge that is able to ask questions of counsel and at times, witnesses. No dialogue such as an open discussion takes place in court and rarely outside of it. Public social events involving judges are, not surprisingly, limited. The sheer ability to “talk” to a judge on Twitter, in public, and ask questions and receive answers, in particular, is practically unprecedented.
This engagement was recognized in this tweet by the Chief Justice of BC:
“^CJBC Communication between the judiciary and the public it serves is critical to maintaining trust and confidence in our judicial institutions. And importantly it is the judiciary’s duty to pursue these opportunities. #A2JChatBC”
In an article entitled “The Qualities of a Good Judge” by Judge Steven L. Platt, who presided over one of Maryland’s trial courts for nearly three decades (Orphan’s Court, 1978-1986; District Court, 1986-1990; Circuit Court, 1990-2007), it is set forth:
“Chief Judge Robert M. Bell [of the Maryland Court of Appeals] has emphasized the need for judges to communicate not just in the courtroom but also in the communities in which they serve and to the other branches of government.”
While judges giving talks or speeches in communities are vital, this method of communication is rather one-sided. The ability to ask questions by the public is usually limited and often there is no opportunity for a discussion to take place. The Twitter Town Hall was a major step forward in allowing a multi-party, diverse and wide-ranging engagement to take place.
If you think you are too small to be effective, you have never been in the dark with a mosquito (Betty Reese).
There were many suggestions and approaches outlined to address access to justice. Benchers, The Law Society, PovNet, BC’s Office of the Ombudsman, Legal Aid BC, the CBABC, the Courthouse Library, TLABC, Mediate BC, the BC Utilities Commission, the BC Law Institute, the BC Family Innovations Lab, Access to Justice BC, The Society of Notaries, lawyers, notaries, and many others joined in the wide-ranging discussions.
Like a pebble dropped in a still pool of water, the ripples of the Twitter Town Hall have spread far and wide. Initiatives such as these help push the access to justice boulder a little higher up the hill.
Indeed, inherent in the discussions was the recognition that Access to Justice solutions may actually, in part, lie outside of the courtroom.
MediateBC posted this tweet:
“Shameless plug: Mediation and other collaborative dispute resolution processes are critical to #A2J (i.e. more affordable, removes strain on the courts, etc.). There could probably be a bit more in the media about that. #A2JChatBC ^WB”
Progress lies not in enhancing what is, but in advancing toward what will be (Khalil Gibran).
The Hardest thing to open is a closed mind (Graham Andrews)
What of the people who weren’t there, who didn’t participate, who are part of the justice system but turn a blind eye to change and in particular, enhancing access to justice? The ones who, due to indifference, adherence to the past or dislike of change, seek to stand in the road and obstruct progress.
Margaret Mead stated that:
“Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”
or reaching back in time:
Never discourage anyone who continually makes progress, no matter how slow (Plato).
If not today, maybe tomorrow. If not tomorrow, maybe in a week. No matter how far we push it, it needs to find us. Progress.
(concurrently published in slaw.ca)