To mark becoming President of SCL, Professor Richard Susskind OBE was recently interviewed by the Editor of Computers & Law, Laurence Eastham. As ever when in conversation with Richard Susskind, the future dominated - whether of SCL, the legal profession or society in general
LE: What was your reaction to being invited to be President of the Society for Computers & Law?
RS: It was a huge honour to be invited. But my successors are hard acts to follow: Lord Saville, Sir Henry Brooke and Sir Brian Neill, they are people who have achieved a great deal, and have greatly enhanced SCL's profile and the regard in which it is held. I am looking forward to being involved.
LE: How do you see your role?
RS: I see my role mainly as ambassadorial. It is my job to promote SCL in the UK and, a matter of increasing importance, internationally. I also want to make sure that SCL is 'plugged in' - that it is able to contribute to and to know about the latest developments in its many areas of interest. It is a continual challenge to raise awareness of and grow the Society. I certainly want to introduce SCL to some of my contacts around the world, and explain to them what they might gain from involvement with SCL. I include in this the task of helping attract more young lawyers to SCL – surprisingly, young lawyers can be remarkably conservative in their attitudes to the use of technology in law and I hope to influence some change in that.
LE: When you were Chair of SCL for the period ending in 1990, SCL was mainly focused on what I call its evangelical role - trying to persuade lawyers to adopt technological solutions. Things are quite different now - nobody is now declaring that no lawyer will ever use e-mail - and SCL is mainly focused on IT law.
RS: I have become President of SCL at an interesting stage in the evolution of law and technology. I have always been interested in both elements of SCL's interests - the use of technology in the law, and the law as it impacts on technology. I have over the years been identified more with the use of technology and certainly SCL has recently become more intensely involved in IT law. But there is a considerable overlap - IT lawyers generally embrace technology and those involved with legal technology are generally very interested in law's impact on technology. So, while I have become President at a time when I am perhaps less expert in the core activities of SCL than I once was, IT law is still an area of great interest to me - I have taught IT law and I have chaired a quango whose focus is copyright and the law. I have quite an interesting working life with a considerable mix within it and I think that helps me bring value to SCL too.
In fact one part of the role as SCL President that attracts me especially is 'thought leadership'.
LE: Can you give me an example of the sort of thing that you mean by 'thought leadership'?
RS: One of my self-appointed roles in life is to try to accelerate the uptake and acceptance of technologies that I believe will enhance the work and role of lawyers. I am fascinated now, for example, by Twitter and the reaction of the legal profession to its use. Many lawyers initially resist and reject technological innovation or claim it is irrelevant; and then a decade later are using it widely. The recent reaction by lawyers to Twitter has closely mirrored their reaction to e-mail back in the 1990s. It is what I call 'irrational rejectionism' - rejecting something without direct experience of it. It is a bit like children saying that they don't like olives without ever having tasted one. So I see myself as having a role in getting SCL and its members more closely involved with emerging technologies such as Twitter.
One of my other roles is to act as a sounding board for the SCL Trustees when they are determining policy priorities. That involves challenging assumptions. I think any non-executive role involves asking probing questions.
There might also be some special projects that I might lead.
But going back to one of the points you raised about SCL's focus, it is true that I want to encourage SCL to do more in legal technology - although that was certainly an aim of Clive's [Clive Davies, SCL Chair] before I became President. While 'basic' legal technology is now widely addressed by others and there are now what might be termed alternative suppliers, I believe that there is still some scope for SCL to be a focal point for advanced technology – such as intelligent e-disclosure, second generation knowledge management and automatic document production spring to mind. Not long ago, these systems and techniques were in the research labs; now they are out in the field and I want SCL to be involved in raising awareness of them.
I believe also that online legal services and online dispute resolution will fundamentally change the legal system, and it would be good to see SCL playing a leadership role in promoting their more widespread use.
LE: So do you see SCL changing its focus again?
RS: I do not see SCL as a static body. It is great that every few years it reinvents itself. It takes stock and asks what are its strengths and what are the needs of the legal profession. It could be very different in 10 years' time. If it is, and it is making a significant contribution to the legal worlds, then that's fine.
I do still believe that one useful role for SCL is to act as a focal point for debate about the ways in which advanced technology affects legal practice - not just in traditional law firms but in the administration of justice in its most general sense. I suggest that monitoring new advanced technologies that are coming over the horizon, identifying best legal practice throughout the world and raising awareness generally are suitable roles for SCL. The still more ambitious role is to help shape tomorrow's legal landscape.
One example that occurs to me relates to online dispute resolution (ODR). In the UK, we might once have expected the Ministry of Justice to take a lead, perhaps to undertake a major study of the effectiveness and limitations of online dispute technologies. But that is not something that we can expect in the current climate. Perhaps SCL could be involved in such a study, bringing a range of players together for that purpose. The area of online consumer dispute resolution fascinates me and the eBay example, where 60 million disputes are resolved online each year, shows that there is a real appetite for such services. There is now a substantial and growing literature on ODR and, as well as the eBay example, we have the MOJ's Money Claim Online and Possession Claims Online – the latter two really are world-beating instances of ODR. The question for me is how to accelerate the uptake of ODR. If we want an affordable and pervasive technique for the resolution of disputes that is suitable for individuals or small businesses then, I argue, we must look online. The public sector is not going to fund the necessary work that will explore the potential of ODR. But SCL could provide thought leadership here – perhaps a commission of inquiry into this followed by a definitive report, looking at what has been done around the world, what the costs and benefits are and what the strategic options are for developing this further. The danger is that what could be a very powerful technology in promoting access to justice could otherwise develop in a piecemeal, unstructured and non-strategic way. SCL may be able to help avert this.
I have similar views about the exploitation of online legal services. If people can go online and get guidance on quite complex health issues from NHS Online, why not in law too? Again, this is not now going to be supported financially by government and so SCL might step in as a catalyst.
LE: One of the problems with online legal dispute resolution facilities that are available at the moment is that there are a few people pushing solutions that are profit-led organisations. Obviously that is not a disqualification but a lot of people see it as an issue.
RS: I think some solutions are indeed likely to come from entrepreneurs. But if an innovative solution offered by a private-sector supplier involves a cheaper, quicker and less painful way of resolving disputes than the use of courts, I do not think that we should begrudge them the revenue that arises. Again I think we have to raise awareness of what is available and to promote an understanding of the fact that, for certain kinds of dispute, it does not make sense to get involved in a process that costs you more than the amount at issue. Proportionality is key here and once you get down to low value disputes it can very rarely seem proportionate to use lawyers; and yet it cannot be that acceptable that if you have a grievance over, say, a defective appliance that there is no other way of resolving your dispute. I do believe that SCL has a role in raising the level of debate and raising awareness of what is possible.
LE: Does that suggest an additional aspect to SCL activity rather than a gradual neglect of IT law, its current focus?
RS: This is very much additional. In terms of where SCL is now, we have never seen a time when IT law issues have been closer to the heart of society nor has there ever been more public debate about related matters. Super-injunctions, privacy, the use of Facebook, tweeting from the courtroom – suddenly stories in national newspapers are addressing matters that are central to the interests of SCL members. These issues are not going to go away.
LE: Do you see SCL's role principally as one of servicing lawyers with education and the like or having a leading role in wider society?
RS: Both. I think SCL clearly must support the legal profession, ensuring that there are lawyers well equipped to practice IT law, but increasingly there is also a role for SCL offering a strong, clear and authoritative public voice on issues at the interface of technology and law.
LE: Are you still as excited as you once were by technology and the law? You certainly sound like you are.
RS: More excited than ever – and constantly surprised too. One of the things I continue to find particularly stimulating is that there is no finishing line with technology. Take Twitter again. It barely existed not many years ago but now over 200 million people are using it and it is transforming the communication methods and the socializing habits of a whole slab of humanity. The fascination for me is that, at the same time, we know that over the next five years a whole bundle of new techniques and technologies will also emerge, displacing Twitter and the rest, and yet none of us have any sense of what these might look like. The most exciting thriller is unfolding before us. And, as I say, my self-appointed task in life is to monitor developments and ask how we can apply these to the justice system.
LE: I was intending to ask you about Twitter anyway because I cannot remember you referring to it before and yet it does seem to be 'transformative technology'.
RS: I think in fairness that I first mentioned it in a footnote in one of my books in 2007/2008 in the context of texting. It is a remarkably powerful tool that engenders the 'irrational rejectionism' from lawyers that I mentioned earlier. I often joke that I think lawyers are waiting for it to take off but I think, with 200 million people using it, it can fairly be said that it has taken off. The question is 'is it practical and relevant?' and, if you look at the ways in which some lawyers are using it, then I think you can see innumerable benefits. It is a way for lawyers to show their areas of work, to keep up with their own peers and clients. If clients are using it, as indeed they are, then lawyers probably should be too. It is certainly worth exploring. But that speculative and experimental spirit is one that is an anathema to the typical lawyer. Lawyers want provenance and track record, but I cannot give them that with an emerging technology. All I can say is that I have been involved with technology for 30 years and have heard lawyers reject my advocacy of e-mail, the Web, the Blackberry, laptops, and much more. All I now ask is for open-mindedness.
Accountants are far more receptive to these ideas whereas lawyers are trained critics. I still think a lot of lawyers look at a new technology and hope it fails so that they will not have to adopt it.
One of my personal challenges is to try and make lawyers and judges earlier adopters of new technologies. They do not have to be on the leading edge to do that – they just have to be more open to the technologies that can change their lives. I certainly think SCL continues to have a role in the technology field in encouraging lawyers to be more open to new developments.
The area of disclosure is a good example just now. There have been some astounding studies showing that, if you are faced with a mountain of documents and you are trying to find documents relating to particular subjects then the latest intelligent search technology will have a higher retrieval rate with greater precision than human beings. Does that get every lawyer racing to a website to learn more or does that get lawyers saying 'I cannot see how that could possibly work' or 'my clients don't want a machine instead of one of our lawyers'?
I should say a little about recent and remarkable progress in what is essentially AI (artificial intelligence). This is well demonstrated by what IBM has done with their celebrated system, Watson, the one that beat human experts in the Jeopardy TV game show. I still find this kind of achievement especially fascinating. I always find myself contrasting IT today with the 1980s, when I wrote my doctorate in AI in law. We have come so far since then. The diagnostic expert system for law may come sooner than we expect and that is truly exciting.