Bonus Episode: ODR Yesterday, Today and Tomorrow Diagnosing: the Heart Problems of Justice

Brad Smith:

Hello, everyone. Thanks for joining me today, my name is Brad Smith, your host for today’s podcast. Recently, I had the pleasure of chatting with our friends, Paul Embley and Di Graski from the National Center for State Courts. During our virtual sit-down, Paul and Di tackled questions surrounding ODR. One topic artificial intelligence was not included in part three of our ODR series as I wanted to share their conversation on AI as a bonus episode.
Let’s listen in as I resumed my conversation with Paul and Diana.
Hey, Paul and Diane, I just want to shift gears here just a little bit and get your thoughts on the pros and cons of AI in the courts today and in the future.

Paul Embley:

So, so Brad, one of the things that I loved, you know, there, there was this phrase that somebody came up with and they said that they prefer to interpret AI as automate insights. And why wouldn’t we want to give Judges or participants or whatever, the insights that could be helpful to them in either presenting their case or in figuring out the merits of a case or anything.
There once again, there is a paper at JTC paper on AI. I would strongly encourage people to read that, but the paper does a really good job of kind of breaking down the different categories of AI.  It also focuses in on the, the, the concept of, in the loop, under the loop and out of the loop.
And so, so you have these three categories of, you know, how much human intervention, how much human interaction is there in AI. And, you know, I would pause here, and I would say AI is here to stay. And what is important for courts with any technology is to look at it and say, “how can we harness the power of that technology to help us do a better job?” So that doesn’t, that doesn’t automatically translate into a computer wearing a black robe and then doling out judgments. But what it does translate into is, it translates into some of the things that we should be looking at. And, you know that once again, that automated insights.
So, whether that’s you know, being able to automate some of that chat so that people don’t have to fill out a form you know, how many of us love forms? How many of us do them well? Especially legal forms. I’ll tell a quick, funny that I love here, but when Texas turned on their e-filing system they, they wanted to do a little bit of you know, study on, on how things were going and all that. And what they found was that they found that after about three months that self-represented litigants were better at filling out the forms then the lawyers were. And you know, and you, you think about that. I mean, there’s, you can speculate on all kinds of reasons why, but, but why wouldn’t we use technology to help us do the mundane? So that we can really focus our efforts on those things that matter most, whether that’s, you know, depriving somebody of their liberty or power imbalances or things of that nature. I, I love the idea that AI could help us with those power imbalances. Wow. Wouldn’t that be amazing?

Di Graski:

Right to me, Brad, it’s very much like the prior question we were talking about with video conferencing or other technologies that would work nicely with an online dispute resolution platform. So, you know, if there are, if there’s, if there are AI tools that can help with language access for folks, for whom English is not their primary language, or if there what, what Paul was just saying about trying to help people find the information that they need, but it is of repetitive  you know, it’s a frequently asked question. Gosh, is there, you know, are there chatbots that could really help a lot of people with very little expense to the court so that those judicial resources could better focus on the, you know, the hard cases, the important cases. To me, those are completely appropriate uses of AI in ODR.

Brad Smith:

Yeah.  AI is so broad. I mean, I could apply it in so many different ways. Like for example you know, the solution A2J which allows for people to fill out forms using almost like a, you know, just a step-by-step approach. So, you don’t necessarily see this legal, you know, the here two fours and the, the legal jargon, it’s more Q and A back and forth.
And, and it comes in 14 different languages. So, the access to justice is, is quite broad. As a matter of fact, I had met with a client in Champaign County, Illinois and was asking them what, you know, what are some of the languages that that you would require if we were to implement  A2J? They’re like, well, surprisingly enough, French is, is one of the primary languages that is used quite a bit here. And that threw a curve ball to me. I have like, I, I didn’t, I’m like what I mean? Okay. So, we’re in the middle Illinois and you don’t go to an ATM and it looked for the French option. Let’s put it that way. So, but yeah, I was fascinated by that and certainly gets to a point where I think any technology that makes ease of use.
I really found that the, the individuals from Arizona University that were, in one of your sessions, hit, hit the point where ease of use and allowing people to sign up easily and get started easily was, was essential. Otherwise you lose people.

Di Graski:

 Yeah.

Paul Embley:

Exactly.

Brad Smith:

Go ahead, Paul.

Paul Embley:

Well, so, so I one of the people I admire in, in the ODR world who is just an amazing gentleman is Richard Susskind he’s out of the UK, but he did speak at one of our conferences and he just amazing. But he talks quite a bit about online courts and, and you know, what, what do people want out of them? But one of the things that he sent around just recently is that in the mid-seventies, there was a book on AI and the author, AI pioneer, John McCarthy was asked one time, what do judges know that we cannot tell a computer? And McCarthy replied nothing.
And you know, now that that may know that may drive some controversy, I’m sure that it may make some people bristle and say, “Whoa, wait a minute. What about compassion? What about these things?”  And that’s what we need Judges and people to do is take the knowledge that could be stored in a computer and use that in a compassionate way, in a thoughtful way to be able to render decisions. And so, so ultimately, it’s us harnessing that, that power that is really going to carry us forward. And, and, and quite frankly, help us get to that 80%, the people who have an unmet legally need. I mean, if we’re really the only, you know, hearing 20% of the issues, you know, what do we want technology and other methods to bring in more people into, you know, this theoretically safe place called the courts where people can, you know, where justice is blind and, and all of that. And so, you know, I know that there’s so many issues with AI. You know, don’t even get me started. I can tell you all kinds of ways that AI has gone haywire you know, some funny some not so, but, but that doesn’t mean that we should just say, “Oh, that will never work”. Because, you know, we have plenty of people who’ve said, “Oh, you know, the internet, that’ll never work.” And look at where we are now.

Di Graski:

And just to put a really fine point on it. Paul, I think what, what the National Center for State Courts would advocate is the use of these automated insight tools or augmented intelligence tools, not to be robot judges, but to support access, communication help people understand what a realistic outcome, might be given their situation. How people identify legal issues, help people like, like Brad, like you were saying, help people navigate the crazy legalese and prepare the documents properly with step-by-step questionnaires. That’s the kind of AI we’re talking about, we’re not talking about robot judges.

Brad Smith:

Which I think is outstanding. And that’s why I was saying AI could be applied to so many different things depending on how you want to do it. I remember back in the day when Lexus Nexus and Westlaw were coming out with natural language searches versus using bully and logic.

Di Graski:

Right, that was huge.

Brad Smith:

And so, everyone’s like, Whoa, Whoa, Whoa. I mean, how are we. How are you guaranteeing or getting the right answer? And so, you know, there’s kind of this comfort hurdle, which you, you had to, to get over.
The other thing was, for example, when we were rolling out,  judicial dashboards, one Judge from Michigan told me she’s like a lot of times I have an individual before me, and unfortunately, I just don’t have access to all the information. And so, I only can, can make a decision based upon what’s in front of me. And so the more information you know, be it in a judicial dashboard, which allows him to, to see different things from, you know, from a sentencing perspective and or the more information that is provided for a Judge, they, you know, they, they can feel comfortable that they’re making the best decision they possibly can.
I remember federal judges when we were training them, they, they absolutely hated federal sentence guidelines. It took them, it took them power out of their, out of their hands. And, and they didn’t have the, they were just stuck. So, and whether or not that person deserved a 10-year sentence or a five-year sentence with, with zero priors. Unfortunately, they, they hit the sentencing guidelines and they were arrested with X and they had to execute that order. And so, I, I see the fine line between, you know, too much information and just enough information to make them better judges.

Di Graski:

You know, Brad, I think that is one of the maybe unintended or unforeseen outcomes of online dispute resolution. Justice Himonas in Utah is so eloquent about this reporting from his trial court judges. Those people, those parties who are not actually successful in reaching a total final settlement agreement using the ODR platform, they still have their day in court. And what, what Justice Himonas is telling us is that those folks coming to have their day in court are way better, educated, way, better prepared. They know what document they know, what the issues are. They know to bring their evidence. And the Judges are in so much of a better position because instead of trying to work their way through a cattle call of, you know, 150 cases in two hours, they’ve got two cases that they can really focus on. It’s amazing.

Brad Smith:

Yeah, they were, there was a video fairly recently, which I observed online and, and it, I was worried that the Judges wouldn’t embrace it. But they are describing, and this was totally true that the catechol experience you just described Di where individuals would be in a, in a room with a hundred individuals there and looking at them. And it’s always, it’s it already makes you uncomfortable being in a courthouse regardless. I don’t, I don’t care who you are. It’s a setting you’re not used to. It’s a situation, which, you’re nervous and you may not want to tell the whole story, or you condense the story just because you just want to get through it.
And then the Judges are left with, with poor information. So, I totally, totally agree I’m with you on that.

Paul Embley:

So, so Brad, one of the things that you and I talked about kind of in preparation for this, that, that I wanted to bring up and, is this, this whole idea that, that now ODR is, is only accelerating you know, bad outcomes. And, and, you know, and, and in most cases that that is a default judgment, you know, where, where creditors are just using this as, as a way to accelerate things and not really put much time and effort into it. And I know that Utah has been used as an example of that. And this applies to ODR. It applies to AI. It applies to really any technology. And, and that is that you know one of the examples I use is, a stethoscope. I probably should pick a different example, so I could say the word, but, you know, it would, it would be foolish for us to blame a stethoscope for finding a heart problem. That’s just folly.
And if ODR is identifying issues that we have in the court that are really upstream issues, you know, whether that’s that, hey, you know, we, we allow for payday lenders and we allow for them to use the courts in this way and all that. And then I’m talking the we, not the courts, but we as society. You know, shouldn’t we be looking at those and saying, “wow, we have, you know, this technology has helped us identify an issue, a heart problem, and we should be embracing that.” And, you know, and I’m not saying, oh, we should put in ODR to find all the issues. But, but really we need to kind of change our dialogue about some of these things and say, “you know what, we need to work on these upstream issues, not get rid of the technology” and, and, you know, be, be just because somebody who would have had a default judgment in court, you know, is now having a default judgment a little bit quicker, you know, on an online tool.
Well, you know, I think we really need to take a look and say, “would the outcomes have been any different?” You know, if those if that had been in court and I can tell you in the Utah case, the answer’s no. You know, and so we, we need to really, really make sure that we’re not blaming the stethoscope, whether that’s, you know, ODR, whether that’s AI, whatever it is for the issues that we’re discovering.

Di Graski:

Well, that’s a really great analogy, Paul. I, I think that on a, on a positive note, when one of the experiences that folks are having with online dispute resolution and some of the other, you know, virtual hearings. Some of these other technologies is that Brad, you were just talking about the stress, you know, that’s just associated with coming into the courthouse, you know, going through security, being in front of a judge, being surrounded by all these strangers at the cattle call. Especially for folks who have experienced some trauma. Those are, those are debilitating environments for them, cognitively debilitating. They, they are not at their best in that environment. And I think some of the courts have adopted online dispute resolution are seeing that the virtual ness of it, the asynchronicity of it, you know, the less formality of it. It is more conducive to helping people tell their story and collect their thoughts and their evidence in productive ways.
Paul, I don’t know. Does that square with some of the experiences that you’re hearing about across the country?

Paul Embley:

Absolutely. And I am glad that you turned this to the positives. Let’s always end on a positive note.
I love the stats that have been collected on ODR. As, as Di mentioned, people coming to court better prepared and, and Judges having the time to spend with them. I’ve been to some of these court hearings where people went through ODR and we know we’re not successful in coming to a resolution. And so, they ended up in court, but the Judge was able to spend time with them and actually hear them. And those people came out going, I was heard, I had my day in court, it didn’t go with my way, but I had my day in court, and I was heard. The stats that one of the things that we thought would happen particularly in Utah, was that we would have a whole bunch of people who would opt out because of language barriers. Well, what we found was that, you know, first of all, less than 2% are opting out. But second of all that because of the asynchronous nature, those people are engaging. Now, I don’t know if it’s a nephew or if it’s a child who’s interpreting for those people, you know, and, and that’s for other people to research, but nonetheless, those people are able to participate in meaningful ways without interpreters. Which is been very fascinating to me, I thought that would not be the case.
The numbers that we’re seeing after hours, where people are participating after hours. And you think about so many of the people who come to our courts, especially the self-represented litigants don’t have, I mean, they, they are working, you know, sometimes two, sometimes three jobs and they just don’t have the ability to take out the time off. And so, the fact that we’re getting more than a third who are participating after hours and on weekends when courts quite frankly, would not have been open anyway, is exciting. And then, you know, the people walking out of court, you know with, with a positive experience, it’s just amazing.
University of Arizona did a usability study on Utah’s ODR system. But what was fascinating to me was that all, but one of them said they preferred to go through the, they would prefer to go through the ODR system for a legal issue rather than go to court. Even with all the flaws that they were identifying with the system, you know, usability studies always uncover plenty of warts, but they, they all, but one said we would far prefer this method than any other method.

Brad Smith:

I couldn’t agree with you more. And as a matter of fact, I just, I wanted to thank you guys for your time. I mean, you, you guys are favorites in my book regardless. It, it was so interesting to go the whole gamut of where we’re at and where we should be in and where we can be. And I really appreciate your guys’ time.

Paul Embley:

Well, thank you, Brad.

Di Graski:

Thanks, Brad.

Paul Embley:

Been a pleasure and it’s, it’s always so great to do these with Di, she’s so amazing.

Di Graski:

Well, right back at you Paul.

Brad Smith:

I will see you soon. Cheers guys. Take care.

Paul Embley:

Thanks again.

Brad Smith:

If you haven’t already done so, download our online dispute resolution three-part series. If you’d like to learn more about the opportunities online dispute can bring to your court system, we encourage you to visit our ODR specific website, www.resolvedisputes.com.
This concludes our podcast today. Thanks, and have a great day.