12 - Using ODR Platforms to Level the Playing Field

Summary

Court-connected ODR has already shown itself capable of dramatically improving access to justice by eliminating barriers rooted in the fact that courts traditionally resolve disputes only during certain hours, in particular physical places, and only through face-to-face proceedings. Given the centrality of courthouses to our system of justice, too many Americans have discovered their rights are too difficult or costly to exercise. As court-connected ODR systems spread, offering more inclusive types of dispute resolution services, people will soon find themselves with the law and the courts at their fingertips. But robust access to justice requires more than just raw, low-cost opportunities to resolve disputes. Existing ODR platforms seek to replicate in-person procedures, simplifying and clarifying steps where possible, but litigants without representation still proceed without experience, expertise, guardrails, or the ability to gauge risk or likely outcomes. Injecting ODR with a dose of data science has the potential to address many of these shortfalls. Enhanced ODR is unlikely to render representation obsolete, but it can dramatically reduce the gap between the “haves” and the “have nots” and, on some dimensions—where machines can outperform humans—next generation platforms may be a significant improvement.

A sea change is under way in how we talk and think about court technology.¹ For decades, court officials – judges and staff – have relied on computers for word processing and internal scheduling, case management systems to store and organize digital records, the internet for research, and email to communicate. Like many organizations, courts have long conceived of technology exclusively as a way to improve their operational efficiency, reducing the time and effort it takes for them to do what they have always done:² provide neutral, real-time, face-to-face proceedings to resolve disputes, with a judge or a magistrate overseeing safe and purportedly transparent hearings in a physical, courthouse setting.³

This perspective is changing. The advent of online dispute resolution (ODR) platforms has reminded courts that providing in-person, real-time proceedings in a physical courtroom is just a means to an end; courts exist first and foremost to resolve disputes, at least in state courts handling everyday matters.⁴ Presumably, there is no single best way to resolve disputes,⁵ and courts are beginning to recognize that ODR – with its potential to improve accessibility while maintaining the integrity and values of traditional judicial process – can improve on conventional face-to-face courtroom proceedings for a significant fraction of cases.⁶ But precisely how far such technology can take courts remains an open question – one with huge implications for the future of formal adjudication in our society.

In this chapter, I argue that court-based ODR platforms can do far more to improve dispute resolution than simply puncture the barriers inherent to accessing physical courthouses, as important as this achievement is in its own right. In particular, I show that ODR systems also have the capacity to reduce the pro se representation gap in adjudication by incorporating tools that mimic many of the essential functions of legal counsel. In the years ahead, courts should grasp the opportunity to design and deploy technology with this goal in mind to advance their core function of successfully resolving disputes, even when the prospect of doing so may push them out of their comfort zone and blur or even redraw traditional boundaries regarding court neutrality and concerns over “helping” litigants.

The first step in this argument is recognizing that effective dispute resolution depends on robust access to justice. While the defining virtue of ODR technology to date is its capacity to improve the accessibility of courts for litigants, the phrase “access to justice” hinges on what it means to achieve justice,⁷ and any useful access-to-justice criterion must ask whether laws and institutions resolve disputes appropriately – that is, accurately and fairly.

One important class of access-to-justice issues relates to the sheer difficulty of using courts to resolve disputes.⁸ If individuals cannot make meritorious claims or defend themselves against improper allegations because doing so is too costly or difficult, the system implicitly “resolves” disputes inappropriately – for instance, through default, coerced settlement, uninformed verdicts, or other outcomes that are more a function of litigation and court-imposed costs than underlying substance.⁹ For this reason, some access-to-justice advocates have criticized the justice system’s reliance on physical courthouses that are few and far between, open only during business hours, difficult to navigate, and intimidating to use.¹⁰ Especially in relatively low-stakes legal cases (a large majority of cases, in fact), like traffic or small claims matters, these hurdles leave large swaths of people out in the cold, unable to seek protection under the law.

First-generation court-connected ODR (or ODR 1.0)¹¹ has already shown technology’s potential to overcome this particular class of access-to-justice barriers. First-gen ODR has opened up courts by leaving courthouses behind. In many states, and across a variety of dispute types,¹² ODR platforms allow people to interface with their cases using mobile phones from their homes at any hour of the day. Software design and “smart” forms simplify processes.¹³ Notifications and error checks keep litigants in the know, allowing them to engage more quickly.¹⁴ All in all, ODR platforms make accessing courts much easier.¹⁵ Moreover, while today’s ODR platforms are available for minor legal disputes, they also show potential for certain aspects of more significant litigation matters. The recent success of online voir dire proceedings, and even trials, intimates that the need for in-person hearings to resolve disputes with accuracy and fairness may be limited.

But existing court ODR systems do not go far enough. Even if these platforms were capable of allowing everyone to resolve their disputes from a place and at a time of their choosing, a meaningful access-to-justice gap would remain. In a society with significant socioeconomic disparities, the mere power to invoke the law, even at near-zero cost, hardly levels the playing field. Wielding the law effectively requires experience and expertise.¹⁶ While some litigants can accrue experience and build expertise through repeated play, other parties to a legal dispute – usually, the “haves” – typically acquire these assets by hiring a lawyer.¹⁷ Lawyers provide many services to their clients, but perhaps first among them is assessing likely outcomes in any matter. Lawyers also explain the nuts and bolts of the law and the range of options available to their clients, including the option to do nothing. Lawyers physically represent their clients in courtrooms as well, muting or obscuring demographic and/or educational differences between litigants when appearing before court (at least if we assume lawyers are likely to be more alike in background and training than any particular set of litigants).

Therefore, simply easing access to a courtroom through technology can only do so much to move us toward ideal dispute resolution. Indeed, access-to-justice advocates devote the lion’s share of their attention to ensuring adequate legal representation in courtrooms, lambasting any system rife with pro se litigants as likely to get it wrong far too often.¹⁸ For this reason, as first-gen ODR platforms proliferate, disparities in outcomes that are attributable to disparities in representation are unlikely to shrink and will probably increase. After all, as those long shut out of courthouses newly turn to ODR to pursue their legal interests, the significance of the representation chasm will become even more stark. A lot more “have-nots” will be seeking justice without a fair shot.¹⁹

Looking forward, a key goal for second-generation ODR platforms must be using data science techniques, design opportunities, and the treasure trove of data ODR platforms and court systems collect every day to bridge the legal representation gap.²⁰ Court-connected ODR platforms, if designed appropriately, can offer – for free – many of the same “services” that lawyers currently deliver to those fortunate enough to have a lawyer. The idea is not for courts to provide all litigants with a robot lawyer.²¹ Instead, the idea is to recognize that much of what lawyers do to help their clients involves providing them with information (e.g., options, predictions) about how their case “stacks up” and helping them to put their best foot forward (e.g., presentation, representation). If courts enhance ODR platforms so that they may offer some of these same functions in the right way, the future of dispute resolution will not only be low cost and easy to access but will also disadvantage pro se litigants much less than traditional court processes.

12.1 The Current State of the Art: First-Generation, Court-Connected ODR

As a concept, ODR emerged from the commercial consumer sector, as companies like eBay sought a means of resolving disputes (usually involving small-dollar values) that arose online between physically separated individuals. Many state court cases resemble small-stakes commercial disputes, and while litigants are often geographically proximate to each other, going to court to resolve a small-stakes case (say, under $500) still makes little sense to many. Even proceeding pro se routinely requires missing work, finding transportation, navigating the courthouse, and facing an intimidating judge. Add to this the fact that court is always a gamble – the prospect of improving one’s chances, from 0 percent (default) to even a modest 50 percent, is uncertain, but a litigant pays the cost of accessing the law at a courthouse with certainty – and it is unsurprising that many individuals in small-stakes disputes simply default, wrongly admit fault, or decline to file a meritorious case.

12.1.1 Where the Story Begins: Courts, ODR, and Access to Justice

Less than ten years ago, state courts began implementing ODR platforms for high-volume, small-stakes cases, like alleged traffic violations and other cases where physical resolution of the matter could be very costly to one of the litigants (e.g., outstanding failure-to-pay warrants), making remote resolution particularly attractive. One of the very first ODR platforms, if not the first, to be widely adopted in US courts was Matterhorn, which Michigan adopted starting in 2014.²²

The earliest Matterhorn ODR implementations sought to resolve disputes between individuals and the government: traffic, civil infractions, warrants, and a couple of misdemeanors. These ODR platforms were in many ways designed to “mimic” traditional proceedings, with a few key differences: ODR was made available at any time of day, information was exchanged asynchronously by text, and litigants could access the platform with any online remote device. But in most respects, litigants could expect to experience a process similar to going to court on their own. These systems inform the litigant of the charge or issue, “ask” the litigant whether they would like the court to review their case, and then ask the litigant to answer questions, including an open-ended invitation to “let the court know” anything else they felt was potentially relevant. These implementations are easy to use and make the process much easier to follow than what a litigant walking into a courthouse should expect to face, but at their core, they are an online version of a pro se courthouse experience.²³ The individual locates their case, makes a request for relief, and answers questions from the court.²⁴

Matterhorn ODR soon grew to address disputes between private individuals. Early examples include ongoing family court cases, where parties negotiate in the online presence of a case manager without the need for in-person hearings,²⁵ and small claims disputes, where parties use an online text-based negotiating (chat) space (and perhaps online mediators) to engage in informal discovery or settle their case outright. These ODR implementations sought to reduce default by making it easier for everyone to come together outside of court in an informal way before being compelled to come together in court. Parties usually negotiate a resolution, and by making online negotiation and mediation free, easy to use, and court-sanctioned, courts were soon playing an important role via ODR in a significant fraction of cases. What’s more, some tentative evidence hints that early engagement with court-connected ODR promotes traditional courtroom engagement later, which might have social benefits,²⁶ even if a case ultimately ends in face-to-face litigation.

Regardless, first-gen ODR works by moving courtroom or court hallway activity to a more amenable online venue that can be streamlined/individualized for the type of case. A pro se litigant may find it easier to negotiate with a counterparty or contest a civil infraction through an ODR platform, but such litigants are just as “pro se” during an online interaction as they would have been during an in-person tête-à-tête.²⁷ Whether first-gen ODR moves into asynchronous text-based exchanges or real-time video-based hearings (or any number of other ways parties can communicate, make offers and demands, share/present information, and work through outcome-determinative decisions), existing ODR platforms can make dispute resolution easier, faster, cheaper, and therefore more accessible, but the value of legal advice is likely to matter just as much as it does in traditional settings. True, more “have-nots” will be able to use courts and access the law. But the “haves” (with their lawyers, experience, and mastery of the rules of the game) will remain just as privileged (if not more so, given digital divide concerns) relative to their “have-not” counterparts as before.

Empirical evidence on ODR outcomes is consistent with this story. This expanding literature speaks to the improvements enjoyed by pro se litigants (as opposed to represented parties): Cases proceed more quickly, default rates plummet, and communication between parties, court staff, and judges increases.²⁸ This accessibility leads to more accurate outcomes (primarily by reducing default), giving more muscle to substantive law and reducing the role litigation costs play in determining legal outcomes.²⁹ In the case of Matterhorn, at least, litigants also report that they find ODR proceedings fair, the online process easy to understand, and the software straightforward to use.³⁰ On the whole, ODR-based improvements in pro se litigant outcomes (both quantitative and qualitative) appear significant, although these advances are relative to a pro se baseline where the relevant control groups of litigants are also unrepresented.

12.1.2 From Courtrooms to ODR: Responding to Critics

Moving from courtrooms to ODR is no panacea, of course. Critics raise a number of concerns, including the importance of the courtroom and human interaction in how litigants experience justice, the ability of efficiency-oriented designers to reduce choice and induce compliance, the lack of transparency in ODR hearings, the rigidity and inflexibility of procedures, and many others.³¹ Most of these complaints, however, focus less on ODR’s basic principles and more on the weaknesses critics observe in specific first-gen systems.³² Like traditional procedures, ODR will only be as good as its design. Yet ODR’s inherent flexibility gives courts the means to resolve many worries raised about existing systems, if they have the will: for example, all ODR-related policies, choices, and outcomes can be made public, and the workflow can be designed to maximize litigant voice, even if current instances of ODR score poorly on these measures. Furthermore, ODR is almost always an option, not a requirement, so those who object to ODR must defend disallowing low-cost access alternatives for litigants who retain more expensive “Cadillac” access to justice and yet prefer ODR when given a choice.³³

More importantly, most criticisms fail to reckon with the very real problems of traditional adjudication, especially in low-stakes cases. Detractors compare ODR processes to a stylized and idealized version of traditional adjudication.³⁴ But this perspective ignores the existing brick-and-mortar system’s huge access-to-justice issues – including regressive costs, biases, disparities, confusion, and intimidation – as well as the paper-thin procedures that many if not most litigants experience in courtrooms. These critics compare the best of courts to the worst of ODR.

Some criticisms rightly focus on ODR being peddled by the private sector and the implications of long-term profit motives.³⁵ But there is nothing inherent in ODR as a concept that requires deferring to a private vendor; courts can and do build their own ODR systems (albeit, often via work-for-hire, which is par for the course when it comes to government software adoption). There are potentially negative, more indirect consequences to making courts and the law easier to access, too. Once lawsuits are extremely easy to file, answer, and navigate, more disagreements will become lawsuits. While ODR can be designed to balance access costs for plaintiffs and defendants, for instance, it may actually increase litigation rates. But the argument that making courts more efficient and accessible in a party-neutral way might be socially problematic simply proves too much; a corollary would be that courts ought to move back to pen-and-paper orders and file cabinets.

12.1.3 Auguries: First-Gen ODR and the Representation Gap

With respect to pro se litigants and the “representation gap,” at least some evidence suggests that ODR systems, even first-generation ones, can level the playing field just as retaining legal representation does. For instance, ODR proceedings in the traffic context are associated with fewer race- and age-based disparities, either because switching to online proceedings (for example, text-based, asynchronous communication or at-home, video-based hearings) differentially benefits some groups over others or because ODR platforms reduce implicit bias by limiting decision-maker exposure to legally irrelevant identity traits.³⁶ The precise mechanism here is unclear, but this reversal is important and ties into questions about the benefits of corporeal representation in court. Lawyers “represent” their clients and so may disrupt implicit biases or other cognitive/behavioral distortions that attach to litigants who appear in person on their own. ODR may do this, too. At the same time, by offering litigants an alternative to a single, one-size-fits-all track, any single limitation a litigant might have in, say, communication (e.g., difficulty speaking in open court) is less likely to matter. In this sense, the addition of ODR makes our legal system more robust in its ability to accommodate pro se litigants.

Existing ODR platforms also implicitly provide guidance on the law and litigation process to litigants. For instance, ODR hearings are configured for the litigant and legal issue in question. All content is targeted and laid out in a single dashboard, and material that speaks to irrelevant contingencies can be omitted. Now consider a litigant’s experience walking into a state courthouse, which is, by design or happenstance, an all-purpose space we use to resolve many types of legal matters. A courtroom is not hung with customized signs. The litigant must digest, sort, and navigate. This is costly and often confusing and scary. By contrast, ODR is akin to being met at the door by an usher who helps you to where you need to be, reminds you of your to-dos, and tsk-tsks when you cut a corner or appear distracted. ODR makes the experience less stressful and reduces error. Lawyers also play this role. Thus, even first-gen ODR mitigates the effect of pro se status, but ODR today is better analogized to an usher than to a counselor. A lawyer can help you decide whether going to your seat is a good idea; an usher can just tell you how to get there.

12.2 A New Frontier: Next-Generation Court-Connected ODR

In this section, I contend that legal representation – what lawyers do for clients – can be disaggregated into distinct functions and that many of these can be approximated, achieved, and perhaps even exceeded within a pro se architecture of next-gen ODR. The confluence of online technology, data collection and storage, and computational power in effect blurs the distinction between “mere” access to a forum like a courthouse and actively supplying pro se litigants with many of the benefits of legal representation. When designing and implementing ODR systems, courts that care about access to justice and successfully resolving society’s disputes ought to set aside any historical reticence to offering robust litigant support – even when that support overlaps with what lawyers do, such as providing objective information, even-handed guidance, and physical representation in court.

Thinking about next-gen ODR begins with a clear-eyed discussion of what (human) lawyers do and what they bring to the table – as well the drawbacks of legal representation (e.g., agency costs, limited communication). Lawyers serve many functions in a litigation context. Lawyers offer predictions,³⁷ counseling, representation, influence, and access,³⁸ and the option to litigate in ways that raise rivals’ costs. Not surprisingly, represented parties often experience better litigation outcomes than pro se litigants.³⁹ But a better litigation outcome does not equate to a litigant being better off overall, and involving lawyers in dispute resolution is socially costly,⁴⁰ especially when attorney efforts on opposing sides are offsetting. From society’s perspective, the relevant question is not how much a party’s individual prospects improve with a lawyer, but how much net value a lawyer adds to the case in terms of outcome accuracy and its attendant benefits.

Even when a lawyer has critical skills and experience, a litigant’s choice to hire that human being is always an imperfect strategy born of necessity. Lawyers as representatives suffer from agency issues,⁴¹ at times second-guessing their client on the basis of “independent professional judgment.”⁴² Even when interests are roughly aligned, the frictions inherent to human communication limit the value of legal representation. Litigants hire people – not their expertise and experience. Litigants cannot download an attorney’s judgment and know-how, nor can they upload the whole of their history and hopes. A client must communicate their preferences, constraints, and knowledge about the case to the attorney without knowing the law or what is possible and relevant. A lawyer has only limited time to prepare to “channel” their client when the moment of truth arrives. Far superior would be the ability to evaluate one’s own case through the prism of a lawyer’s training and professional history (and perhaps objectivity). All of this is to say that legal representation, even at its best, is far from perfect.

In what follows, I identify three specific benefits of legal representation – outcome prediction, options guidance, and obfuscation/translation – and I argue that they can be approximated through court technology. When evaluating this claim, keep in mind that the relevant comparison is to a costly, limited, and sometimes selfish human agent. I do not claim that ODR platforms can or will render lawyers obsolete. But in weighing its relative merits, enhanced ODR may be able to deliver, implicitly or explicitly, many of the benefits of an expert counselor. I also do not claim that ODR systems have yet to push any of these frontiers.⁴³ Rather, I maintain only that adopting courts ought to think holistically about how ODR can support litigants in ways that reduce the pro se representation gap. By keeping in mind what lawyers do and how clients and society benefit from their involvement, future ODR systems may generate better outcomes and more satisfaction.

12.2.1 Experience and Predicting Outcomes

One of the most important services a lawyer provides a litigant is an informed, experienced perspective on the likely outcome of a case, with some overall take on whether the outlook is “good.”⁴⁴ Typically, during intake, the prospective litigant describes the nature of the dispute, key aspects of the case, and the like, and the lawyer may even offer some preliminary advice. Once retained, however, the lawyer will engage in more intense prediction-oriented activity on behalf of the client, perhaps after researching the law, collecting more information, and weighing the necessary investment, probable venue, expected legal rulings, possible judges, and even likely jurors. These predictions are necessarily fuzzy; there is considerable uncertainty, but as time resolves many contingencies (e.g., the identity of the opposing attorney), predictions will become more accurate. Consequently, the lawyer is likely to revisit the prediction task repeatedly, presumably at each important decision point, when the litigant might seek advice on how to proceed. In a traditional litigation setting, the prediction problem is a complicated one; the environment is relatively unstructured, and the variables are nearly infinite. There are also conflicts of interest and cognitive biases tugging on a lawyer’s predictions.

A lawyer’s ability to “predict” a dispute’s outcome builds on the human equivalent of supervised learning.⁴⁵ In most cases, the client defines a “good” outcome for the lawyer.⁴⁶ But even if the target is unclear or moving, the client and the lawyer are normally decided on the type of outcome that matters (e.g., damages, liability, share of custody, opportunity to be heard, etc.). The lawyer’s task is to take the client’s account, the law, the client’s set of plausible “moves,” the presiding judge, and anything else observable to the lawyer and then predict an outcome using the agreed-upon metric of success. This prediction may come in the form of an expected outcome alone and possibly with some measure of uncertainty that implicitly conveys the expected accuracy of the prediction (e.g., “I think you’ll get $75K, give or take $10K”). If the client defines a minimally acceptable outcome, the lawyer will review the likely consequences for each set of potential moves and either report that this outcome is unrealistic or that taking a particular set of actions will be necessary (under current circumstances).

How does a lawyer do this? The lawyer effectively cognitively “models” prior cases to understand the complicated relationships between facts, choices, and outcomes. Put another way, lawyers detect patterns between predictors and outcomes.⁴⁷ The greater the number and variety of cases and types of predictors that lawyers incorporate into their modeling, the more flexible, unbiased, and accurate their predictions can be. A mental model is what we mean when we talk about the value of experience. An expert lawyer has witnessed many cases with many different characteristics proceed under many different circumstances. Delivering accurate predictions is helpful because they can guide a litigant’s behavior toward their preferred outcome, whatever it happens to be. If the litigant’s goal is to maximize their net “return” from a dispute, a schedule of litigation strategies (including their costs) and their likely outcomes (and uncertainties) produced by a lawyer is what a litigant needs to succeed.

ODR platforms can perform this task. In fact, under the circumstances, they may be able to do a better job.⁴⁸ First-gen ODR platforms already access an individual litigant’s case, drawing information from the court’s case management system. Once a case resolves, the platform archives the record and moves onto the next case. But there is no reason an enhanced platform cannot build models from all prior cases and even from data outside the court’s case management system. Models can incorporate any plausible predictor, including judge identity, hearing timing, and docket backlog. By contrast, lawyers build models only from their own cases or those about which they hear or read (inevitably with error and uncertainty), and only with what they can observe about those cases and their circumstances. In effect, an enhanced ODR platform could display a distribution of how similar past cases – or, with enough data, only identical ones – fared using the litigant’s preferred measure of success. These “predictions” (tendered as descriptions of what happened in prior cases – not as promises or legal advice!) can be presented at decision points and can be joined with statistics to impart precision.⁴⁹

The challenges to operationalizing these ideas are manageable.⁵⁰ In many ways, litigation that occurs in an ODR environment may be more amenable to accurate prediction than litigation in a more traditional environment because the platform can easily capture the information about cases, choices, and outcomes needed for prediction. An ODR system may be more structured and less nuanced, either by necessity or design, which might also simplify the prediction problem. Consider an enhanced platform with asynchronous, text-based communication that requires parties to answer the same questions in the same order with the same answer options as part of an online hearing (versus open court with a judge asking different questions in different ways and expecting a narrative response on the spot) and where the system necessarily prevents or obscures certain actions (e.g., a litigant can’t visibly sigh or roll their eyes at a judge).⁵¹ The number of predictors would no longer be infinite because the environment eschews legally irrelevant details; in other words, the medium itself might simplify some of the prediction problems a lawyer would normally face in court.⁵²

12.2.2 Navigating, Counseling, and Identifying Options

Lawyers often present options. They take raw facts and abstract law and suggest possible legal solutions. They also identify various strategies (or implement them directly), and they help clients weigh the upsides and downsides of those strategies. Lawyers do not necessarily perform this task well. The quality of counseling, when it occurs, is often suspect. Lawyers implicitly build models, but they also suffer from biases (e.g., availability), have limited observational and processing capacity, and must navigate their own conflicts (like economizing on time and avoiding high-risk innovations). In most contexts, lawyers are also busy. Identifying options, discussing them with clients – these activities take time. Consequently, lawyers work from scripts,⁵³ stocked with standard “moves” that usually do the trick in the vast majority of situations. Lawyers may deliver these options in rote fashion, with little thought paid to details that are individually unlikely to make a material difference in the long run (even if, collectively, such details can alter a legal dispute’s trajectory).

This account is designed to present a human lawyer as a fairly simple algorithm. The lawyer asks intake questions, processes the answers, identifies the nature of the dispute and a set of typical solutions, explains the most common approaches to the client, and translates the client’s reaction into a set of choices or next steps. Two tasks are occurring here. One is pattern recognition (the main point here). The second is prediction combined with an interpretation of what the client values. Put differently, lawyers determine the sort of dispute they face, collect relevant information for a dispute involving such features, identify an array of potential approaches or strategies, and assist the client in understanding and deciding between them.

This last step – helping a litigant understand and evaluate various options – falls squarely in the camp of outcome prediction. Enhanced ODR can define a large number of potential outcomes. Not all, true, but easily those outcomes that would matter to 99 percent of litigants. Counseling between options can be carried out simply by informing litigants of the likelihood that certain outcomes will manifest if the litigant pursues, say, track 1 or track 2.

With a real lawyer, counseling involves nuance.⁵⁴ But much of that nuance is the lawyer attempting simultaneously to ascertain a client’s preferences. An enhanced ODR platform would do less “screening” and instead make much more information available to the client so they may digest with their own priorities in mind instead of relying on a black-box lawyer. There are challenges here: Litigants also face cognitive limits, and while they may have more time to immerse themselves in their own affairs, too much data can be worse than too little.⁵⁵ Just as an intimidating courthouse can paralyze, so too can an environment that dumps unstructured information on litigants and then asks them to sift it.⁵⁶ Thus, ODR platform structure and design must not only be accessible but also support effective decision-making.⁵⁷ We already use technology to help people make important choices about many things.⁵⁸ Even in the legal-aid and access-to-justice contexts, existing decision support tools streamline processes, minimize confusion, and improve decision-making.⁵⁹ Efforts are imperfect but improving,⁶⁰ and one must remember that the relevant benchmark is a pro se world with no support whatsoever.

To counsel, lawyers categorize a dispute and then compile the information necessary to identify options, avoid legal and factual pitfalls, and assemble plausible strategies (matched with predictions). This is complex, and early versions of enhanced ODR will likely be subject-matter specific. But precedents for algorithmic technology of this sort already exist, and courts should avoid letting the perfect be the enemy of the good. Legal aid groups already deploy triage and intake forms that are “smart.”⁶¹ An initial goal for next-gen ODR might be to determine a litigant’s eligibility for digital or other assistance by collecting critical information about the litigant’s situation.⁶² The law’s many branches can be incorporated directly into questions put to users.⁶³ Structure in the law and implicit groupings of fact patterns will lay bare most likely strategies.

There is no limit to how complex any enhanced ODR data collection process might be. But this is also true when a litigant hires an attorney: The litigant explains their situation, and the attorney asks questions in response. The attorney may also look over papers, review video, or examine other evidence. This exchange might take a while, but lawyers ultimately triage and end their information gathering, and ODR software can too. As natural language processing improves, faster intake methods that ask open-ended questions instead of closed-ended questions can reduce the total number of questions.⁶⁴ Analysis of narrative answers can trigger relevant follow-up inquiries.⁶⁵ But there are reasons doctors don’t only ask “so, what’s bothering you?” at an appointment. Instead, you are first subjected to a long list of questions designed to prompt you to think about every system and part of your body.⁶⁶ Any natural language response to an open-ended question like “what’s your legal problem?” may come from a person unfamiliar with the law whose take on what matters may be off-base.⁶⁷ Still, natural language responses, perhaps even voice submissions, might be a better, more accessible option for some litigants.⁶⁸

A barrier to making data-collection functionality successful in next-gen ODR platforms is simply how long it might take a litigant to get in the front door. So much of what is good about ODR is that it is easy to use and minimally costly to try. Next-gen ODR might dissuade people from using courts all over again if it bogs down with seemingly countless questions and checklists. But consulting with a lawyer takes no small amount of time, and stacks of forms are not new to human institutions. Nevertheless, enhanced ODR platforms might be more attractive to more people if guidance and counseling functions were designated as optional.

12.2.3 Replication/Obfuscation/Translation versus Representation

Lawyers aren’t just analytical input-output machines offering a litigant legal expertise in the background. Lawyers are corporeal and play a physical role on the stage of our justice system.⁶⁹ They actually “do” law by going to a courthouse to serve as their client’s mouthpiece. The corporeal representation function of lawyering matters in at least three ways in the context of court-connected ODR: lawyers replicate a litigant’s ability to be physically present, lawyers obfuscate litigant traits, and lawyers translate and distill a litigant’s lay arguments into an “expert’s” legal arguments. Considering these roles separately demonstrates that enhanced ODR can advance these functions through text on a screen or other digital-information display even without a human body in a courtroom.

First, lawyers allow clients to be in two places at once. This function reduces the cost of litigation to clients, courts, and other parties, since schedule conflicts can slow litigation. Representation offers flexibility to meet competing obligations. Often, a client and their attorney come together in a courtroom at critical junctures, but there are many stages when a lawyer can physically “be” the client for purposes of advancing a case. Technically, ODR is unable to fulfill this function because, whatever it is, software does not stand in for a litigant before other parties or decision-makers. Yet, in an ODR environment, there is arguably no need for such a service in the typical case. Indeed, unlike hearings that take place at a particular time and place, ODR can be more flexible, accessible, and efficient, making the use of a lawyer to “cover” for someone less important.

Second, lawyers can “obfuscate” client traits. When judges walk into a courtroom and see a litigant’s race, gender, age, or other identity traits, evidence suggests that unconscious implicit bias, if not explicit bias, affects subsequent decision-making.⁷⁰ Furthermore, the anticipation of such bias can alter a litigant’s ability to communicate well in a courtroom. One strategy for a litigant facing the possibility of discrimination is to hire a lawyer with different – perhaps socially “preferred” – characteristics to block, blunt, or attenuate any such bias. Lawyers even advertise on this basis – for example, hinting at the advantages of a female lawyer defending a male defendant accused of sexually assaulting a female victim.⁷¹ True, having a lawyer does not necessarily preclude a judge from ascertaining litigant identity traits, but outside of explicit, intentional discrimination, even sharing the stage with an in-group lawyer may disrupt the psychological processes that lead to bias.

For those unable to reduce their exposure to bias by using a lawyer,⁷² ODR offers a substitute, perhaps superior solution. ODR can structure online communication to insulate judges and other decision-makers from legally irrelevant information that might trigger implicit biases (or allow purposeful discrimination). At least some first-gen ODR systems, for example, do not include a litigant’s driver’s license picture in the judge’s dashboard. At least one court collects required picture ID information only after the judge decides the case but before the ruling is entered. First-gen ODR systems, by tracking traditional in-person processes, still tend to make a litigant’s name visible (which may reveal gender and ethnicity) and, in some instances, date of birth (which, with some math, reveals a litigant’s age).⁷³ ODR platforms can go further by thoughtfully, comprehensively obscuring litigant traits that are legally irrelevant (or even legally relevant when they are likely to bias or confuse decision-making),⁷⁴ whenever it is consistent with fair process.

Third, lawyers provide a “translation” function to clients. Lawyers distill what they learn from clients into core substantive facts, and then assemble and present those facts in the highly reticulated way that legal actors expect from legal professionals.⁷⁵ This professional repackaging may augment a litigant’s story and substantive arguments by making them more palatable, reliable, and understandable to a judge.⁷⁶ Or it may just be a key into the club. If there are lawyers on both sides, any imprimatur may cancel out, yet the dynamics of the prisoner’s dilemma apply, so all who can “lawyer up” still do so. Pro se litigants are left behind. Even if translation and delivery by an expert improves the litigant’s prospects (relative to a counterparty), it remains an open question whether this function enhances the accuracy or efficiency of any adjudication. Regardless, if only one party has access to an attorney’s stamp of approval or can speak “legalese,” a pro se gap might develop.⁷⁷

Enhanced ODR can diminish the role that legalese and professional status might play in litigation by reducing their use, making them ambiguous or less salient, or facilitating a pro se litigant’s ability to employ them within the platform. ODR design can encourage (or require) litigants to use plain language, either via the structure of its data collection strategies (e.g., forms) or through ex post screening of user language. Alternatively, one can imagine a more involved ODR process that educates litigants about the meanings of legal words or legal communication norms or that offers something closer to a translation service, much the way smart form procedures operate today, by giving people choices. Either way, ODR platform “rigidity” in the allowable scope and style of communication can be a disparity-reducing positive;⁷⁸ such structure can ensure that parties speak the same language while also giving them equal opportunities to be heard.

Importantly, reducing “degrees of freedom” in ODR communications can also close a back-door source of implicit bias. An ODR system that scrubs case materials of identity-trait data after having encouraged a litigant to submit an open-ended statement may be closing the barn door after the horse has bolted. Intentionally or unintentionally, litigants reveal personal traits in their communications:⁷⁹ they explicitly indicate their race, gender, occupation, or age,⁸⁰ or they implicitly reveal these traits through language that correlates with demographic characteristics.⁸¹ In any event, to the extent that legal representation liberates litigants from the need to speak legalese in the courtroom and insulates litigants from implicit bias by insulating judges from triggering face-to-face interactions, ODR systems have the potential to do much the same through careful design and creative solutions.

12.3 Conclusion

Courtrooms (spaces) and lawyers (people) complement each other in the resolution of disputes. Courts appear to be fixed, reactive, and generically available to all; lawyers, by contrast, seek justice by customizing how courts resolve disputes to align with client circumstances and preferences. A lawyer “configures” a court and the law it embodies by leveraging their experience, expertise, and corporeality to serve their client’s interests. First-gen ODR makes courts more accessible, but platform technology, data science, and thoughtful design allow for so much more. In this chapter, I argue that courts should view ODR going forward not only as a potential opportunity for courtroom-like engagement in the traditional sense but as a substitute for many of the services historically provided by lawyers, which, in the end, are mostly about helping litigants understand how a court will perform and what it will produce in the specific instance of their case. Conceiving of ODR in this way – as the use of online communication technology and data science to make it easier for potential litigants to use, understand, and benefit from law in action – will get us much closer in the years ahead to “courts as a service.”