Rebooting Justice: More Techonology, Fewer Lawyers, and the Future of Law
Rebooting Justice is a thought-provoking, potentially controversial, and intuitive analysis of the current state of our civil and criminal court systems. Benjamin H. Barton and Stephanos Bibas carefully explain the shortcomings of the criminal system, beginning with the promise of counsel to all accused as set forth in Gideon v. Wainwright. A promise that may have guaranteed too broadly without having the systemic capacity to deliver. Rebooting Justice also carefully considers the pro se crisis that is plaguing civil courts, because lower and middle class litigants are unwilling or unable to spend their limited financial resources on expensive legal representation.
But Barton and Bibas go a step further. Rather than merely pointing out the problems endemic to the criminal and civil court systems, they offer solutions. Those of you reading this who practice law aren’t going to like many of the suggestions. You will be inclined to raise your defensive and protectionist walls. I did. But then I lowered them, by hand, like in the old Honda hatchback that was my first car. Because I wanted to carefully consider whether the proposals being made in Rebooting Justice were in the best interests of those with limited or curtailed access to justice. And even then, I found myself not agreeing with all of the proposed solutions, but grateful that there are those who are considering solutions to what has clearly become a problem.
Problems in the Civil Justice System
To focus on the civil side (since that is my practice, as well as most readers here), civil courts around the country are wrought with pro se claimants and defendants. These pro se litigants are attempting, and largely failing, to navigate a complex judicial system. Often in these situations, one side is represented by counsel who understands the procedures and substantive law, while the other is pro se and languishing in ignorance. These problems are particularly prevalent in small claims and domestic courts.
The problem is not a lack of lawyers. In fact, there are a glut of lawyers in the marketplace, but they are unable to lower their rates to a place that would be affordable to the lower and middle classes. This is true for a variety of reasons: cost of legal education, overhead costs, and the costs of participating in litigation. Barton and Bibas describe the situation: “In short, ordinary American cannot afford to hire a lawyer even for very serious and complicated problems, the problem is growing worse, and the system is poorly equipped to handle the resulting flood of pro se litigants.” (p.54).
So what are the solutions to this and other system-wide problems?
The concise answer as proposed (and then thoroughly analyzed and explained) in Rebooting Justice is that “we need to simplify civil justice itself, using technology to build around pro se litigants rather than lawyers.” (p. 57). With this mission statement in place, the authors attack the issue on several fronts. For example, pre-suit mediation and online dispute resolution programs can be implemented as a strategy toward lessening the burden on the court systems and enabling the parties to craft settlements in an environment where no party is significantly disadvantaged by not having a lawyer.
The authors encourage court systems to increase electronic access to legal forms and train clerks to be more active in directing pro se litigants to the correct use of forms. A portion of this would involve redefining and narrowing the scope of laws construing the unauthorized practice of law. (Having dealt with any number of clerks’ offices, this seems like the least probable of all the proposed changes. The next helpful clerk I find will be the second – hat tip to you Crenshaw County Circuit Clerk!). The authors also propose a more inquisitorial and involved judiciary, who would guide the pro se litigants during in-court proceedings and help develop the evidence necessary for resolving disputes and better enabling the courts to make rulings. Rebooting Justice summarizes its mission as follows:
“The technology is already available to offer a much better experience [to pro se litigants]. That potential is stifled by unauthorized-practice-of-law rules, adherence to tradition, and the failure to combine human expertise, data collection, and computing power. If America could combine those changes with the increased use of technology and triage protocols in pro se courts, we would create something truly exceptional: a simple, transparent court system aimed at assisting litigants politely and efficiently.” (p. 157).
There’s more. Much more. And the civil side that I’ve discussed here is only half of the equation – the problems in the criminal system are equally perplexing with ramifications that are often more devastating. Rebooting Justice by Benjamin H. Barton and Stephanos Bibas is an intriguing read. I dog-eared more pages and scribbled more notes in this book than any I have read in some time. Some of my notes expressed agreement, while others exhibited dissenting opinions and counterpoints to the authors’ arguments. But the entirety of the experience was a thought exercise into a real-world problem that I hadn’t previously given much consideration.
If this review has enticed you to purchase Rebooting Justice, you can find it on Amazon (and by purchasing it through this affiliate link, support this blog at no additional cost to you).
Rating (out of 4 gavels):
Other non-fiction books I’ve discussed: