Episode 62: Shannon Salter, Chair at Civil Resolution Tribunal

Shannon Salter:

… and I think that one of the benefits of human-centered design is that nobody should feel like they’ve landed on Mars when they’re trying to engage with their own justice system, it belongs to them. And so you shouldn’t feel like you’re an alien, you shouldn’t feel stupid. You shouldn’t feel confused. It’s our responsibility as the public justice system to make sure that you feel that this is a process that is fair. One in which you’re being heard, and a process that ultimately confirms and hopefully builds on your confidence in the justice system.

Jack Newton:

I’m Jack Newton, CEO of Clio, and this is the Daily Matters podcast. On Daily Matters, we talk with legal professionals, industry leaders, and subject-matter experts about the future of law. We explore where the legal industry is headed, how legal practice is changing, and what you can be doing to position yourself for success. Today’s guest is Shannon Salter, Chair at Civil Resolution Tribunal, Canada’s first online tribunal. Shannon has received numerous awards and accolades, including being named one of the 25 most influential lawyers in Canada in 2017. Shannon, thanks so much for being here.

Shannon Salter:

My pleasure, Jack. Thanks for having me.

Jack Newton:

So, Shannon, I’d like to first talk about setting the stage for what the CRT and online tribunals are in general. Can you tell our audience about the work you do at Civil Resolution Tribunal, aka, CRT? And tell us a little bit about how an online tribunal works?

Shannon Salter:

Sure. So the tribunal opened its doors virtually in 2016. We were given jurisdiction over condominium disputes. You probably know somebody with a condo dispute because half our population lives in a condo—

Jack Newton:

I do.

Shannon Salter:

… or rents in a condo. And it’s funny: If you ask that question to a crowd, everybody knows somebody with a condo dispute. And before 2016, you had to go to the BC Supreme Court to have those disputes resolved, which is obviously very expensive and time-consuming for what really are just neighbor disputes at the end of the day. So we opened our doors to handle those disputes, and then over time, over the last four years, the government has given us successively more areas of jurisdiction every year, small claims, motor vehicle disputes, cooperative housing, and non-profits. It just keeps expanding over time.

So the way it works is that somebody with any of those disputes—a condo dispute, a small claims dispute, a motor vehicle dispute—can start by getting free legal information and tools through a very basic form of AI called an expert system. That’s meant to even the playing field a little bit, give people access to expert legal knowledge that they otherwise often couldn’t afford. And then hopefully give them tools to resolve the dispute on their own. If they can’t, they can seamlessly apply for dispute resolution and go through a process that is really focused on collaborative dispute resolution, wherever possible.

So we give the parties an opportunity to negotiate. If that doesn’t work, they get the assistance of one of our staff mediators who helps them reach an agreement. And then if all else fails, a tribunal member like me steps in, reviews all the evidence in the submissions, and makes a binding decision that’s a court order. But the idea here is that really we’re not just putting an administrative tribunal online. Our goal is to take the justice system, bring it to people, build it around their lives, better understand their skills and abilities, and limitations. And technology is just one tool that we use to create this inclusive little corner of the justice system. But, of course, these days like us, everybody more or less is online to one degree or another. And so you have to have technology as part of your toolkit.

Jack Newton:

Can you tell us a little bit about the way that CRT came into being? It seems like a really innovative concept that has been cited internationally as an innovative way of improving access to justice and taking some of the load off of the court system. It seems to have been a great success, but I’m wondering what the origin story is for the CRT, and maybe some of the lessons that you think could be applied to other jurisdictions and other areas of law?

Shannon Salter:

Sure. The origin story predates me. I was appointed as chair in 2014, but before that, in 2012, the legislation was passed. We’re an administrative tribunal. So we’re part of the public justice system. And we act under enabling legislation from the government. The idea for the CRT came from this little innovative office in the Ministry of Justice. People like Darin Thompson and David Merner and others had this brainchild for taking some of those great ideas that generated so much success in PayPal and eBay in terms of online dispute resolution and trying to leverage some of those benefits into the public justice system. And so that’s where the idea came from, but it was kind of a perfect alignment between that interest in innovation and a real demand from the Strata community, the condominium community, which were very frustrated by the fact that these little disputes kept tearing at their communities and there wasn’t a good way to resolve them.

So as a design point, when I go to other jurisdictions, I think that’s really crucial—this idea that you have to have an appetite for innovation. You have to have change leaders who are willing to withstand criticism inside government or inside the judiciary. But it also makes sense to start somewhere where the pain point for the public is very high, but the stakes are low. I mean, people care passionately about their condominium disputes, but at the end of the day, they’re not life-or-death issues. So as a place to start, it really makes sense. Learn, get better, adopt a lot of those kinds of startup techniques that you know so well at Clio about focusing on the end-user, figuring out what the need is, staying really tightly glued to what the demand is, and making sure that you’re iterative and agile in meeting it. So those are some of the things that we’ve adopted, but of course, developing justice reform in the public context is quite different from the private context.

Jack Newton:

So, Shannon, you mentioned examples like eBay and some of the ways they’ve really effectively leveraged online dispute resolution at incredible scale. For our listeners that may not be familiar with what’s happened with some of those online companies, can you briefly outline what they’ve been able to deploy in terms of dispute-resolution mechanisms that have been automated to great effect?

Shannon Salter:

Sure. It’s an often-cited statistic, but eBay resolves 60 million trans-border eCommerce disputes online without any human engagement every year: 60 million. And so if you can imagine leveraging some of that power to resolve these lower-level high-volume disputes within our justice system, or even more complicated ones as well, you can think about what the benefit might be for the access to justice crisis. So it was really on the backs of this pioneering work done by people like Colin Rule, Ethan Cash, all these pioneers in ODR that have allowed us to really build something novel.

There wasn’t really an example in the public justice system before. And as we’ve learned, the public justice system presents its own challenges in terms of innovation, but it also presents huge opportunities because unlike a private startup, we can’t pick a market segment. We can’t decide that we’re offering dispute-resolution services for people with a university education who have a certain income level and speak English as a first language. This has to work for everyone. And that’s really the challenge, but also the real opportunity of taking what’s best from the private sector and leveraging it and democratizing it so it’s accessible ideally for everybody in the public sector.

Jack Newton:

We’ve talked at a high-level about some of the benefits of online tribunals, but I’m wondering if you could, to an extent, enumerate what some of the advantages of online tribunals are and some of the benefits of having them as part of the legal system.

Shannon Salter:

Yeah, I think the biggest benefit is that we were gifted with, well, both the blessing and the curse of a blank slate, I like to say. There wasn’t a path to follow. There was no other example of a public justice system doing ODR, but at the same time, that meant that we didn’t have to do things the way they’d always been done. We could look at evidence, we could go out and gather that evidence, and we could really design something fundamentally new that was based on the public’s need and what they were looking for? And so really we’ve human-centered design to create everything in the tribunal. Although back in 2014, we weren’t calling it human-centered design. We knew that the justice system generally was not working for most people, that it was becoming a luxury good. And so we set out to use the evidence we could find to make good decisions about how to give people opportunities to resolve their dispute.

And so if you look at that evidence, what you’ll find, first of all, is there’s not a lot of it. We have a real data void. As I know, Clio is contributing to filling that data void by virtue of publishing statistics about the legal profession, which has been incredibly eye-opening, but we don’t have similar data about our court system or about the justice system at large, as you’ve probably encountered. So we had to go out in commission studies and do focus groups and build relationships with community advocates and interview people. And when you do that, I think you design something that’s fundamentally quite different from what we have now. It’s not designed around lawyers, it’s not designed around judges. Tribunal members like me are not central to our process, it’s a last resort if a case has to come to me, but the heavy lifting is done a lot earlier.

So what does it look like if you design around people? Well, you design it so that it accounts for disability. It accounts for language differences. It accounts for geography and education levels. It accounts for mental health issues as best you can. It focuses on collaboration, because that’s what people want. They don’t necessarily want their day in court, as much as we like to think that in the legal profession. And you focus also on speed and costs. So we’re resolving small claims in a median of 59 days, and we do that through rigorous discipline about looking at where the administrative delay is on our side and how we can use analytics to really cut that back?

So anyway, it looks very, very different, but one of the biggest things that technology allows us to do is disentangle us from place of time so that we can offer asynchronous services. That means that people can work on their dispute after their kids are in bed, after their work is done. After they’ve had a chance to speak to a spouse or get legal advice, or just take a breath, or even sleep on it if they’ve had a settlement offer that they need to think about. So it’s funny because it’s at once a much faster process than the court system, but it’s slowed down enough to give people time to think and consider and work around their own schedules.

Jack Newton:

It seems like a great example. With the right kind of design approach, you can create something that’s a win-win for everyone involved, where it’s more efficient, it’s more responsive, it’s more accessible. And you just have a higher likelihood of driving an outcome that is acceptable to everyone involved in a time frame that they appreciate and value. One of the stats you published recently is your May 2020 CRT satisfaction survey, from folks that have used the CRT—the stats are pretty incredible: 100% of those surveyed felt the CRT treated them fairly, 92% felt their CRT dispute was handled in a timely manner, 94% would recommend the CRT. Those are pretty amazing statistics, and, like you said, we’re contrasting this with a bit of a data vacuum on the traditional courts. But if we ran a similar survey on people’s experiences; maybe pre-CRT, I’m sure the responses would be vastly different in terms of favorability ratings. Can you tell us a little bit about just that on-ground response you’ve seen to the CRT and some of the anecdotes you’ve heard from folks that have been able to make use of the CRT?

Shannon Salter:

Yeah, that’s right. So, as you said, we survey people who’ve gone through the process every month. It’s not 100% every month, but we aren’t really heartened to see that most of the time, most months we’re getting over 80% of people saying that we treated them fairly, that they’d recommend it to others, and so on. So if your listeners are interested, they can have a look at our website. We publish those statistics as well as our case volume statistics every month. But the goal is in the comments and that is where we give pats on the back to our staff who are doing a great job, but also where we internalize the constructive feedback and try to look for trends about things that we can improve.

But anecdotally, some of the comments, which we’re also going to start to publish on our website, talk a lot about how people felt that we treated them with respect, that they didn’t feel stupid. They didn’t feel that they were out of their depth or in a place they didn’t belong. That people particularly, our staff were friendly to them, that they were explaining what needed to happen along the way. And I think that one of the benefits of human-centered design is that nobody should feel like they’ve landed on Mars when they’re trying to engage with their own justice system—it belongs to them. It is a fundamental right of being a citizen or a resident in a democracy. And so you shouldn’t feel like you’re an alien. You shouldn’t feel stupid. You shouldn’t feel confused. It’s our responsibility as the public justice system to make sure that you feel that this is a process that is fair, one in which you were being heard and a process that ultimately confirms and hopefully builds on your confidence in the justice system.

So that’s all very heartening. Now, that’s not to say we’re perfect. We make mistakes all the time. But we try not to languish in them. And so we meet every two or three weeks, kind of using this agile methodology to evaluate and triage and prioritize changes, so that we don’t go wildly off track. I’m guessing you might feel the same way as the head of your organization, but that’s what lets me sleep at night, knowing that we have this continuous improvement process. That means I’m not going to wake up one day a year from now and find out that we’ve blown up the whole thing inadvertently.

Jack Newton:

I think one of the great things about this agile approach is the ability to respond to feedback and quickly get those changes deployed, and being responsive and agile isn’t something we would associate with most traditional court systems. Although, we’ve certainly seen that in the COVID-19 era. I’m curious what your experience has been in terms of how COVID-19 has impacted the CRT. Have you been able to continue serving clients over the course of COVID-19?

Shannon Salter:

Yeah, we’ve been quite well positioned. We’ve kept our doors virtually open. We’ve operated exactly the same way that we always have. We’ve been open, we’ve had no interruptions. We kind of saw this coming along the horizon late February and pivoted to move about 30 frontline staff to working from home. That was then in early March, but we have about 100 staff in tribunal members and about 75% of them were already working remotely, and all of our services were already available remotely. So really it caused no disruption aside from allowing us to pivot and focus on what the needs of the parties would be. So it’s a really good place to be in where you’re not scrambling just to keep your doors open or worry about your staff and you can focus on the parties. So the things that we did to be focused on their needs were immediately looking at how to extend that deadline.

So someone could shoot us an email and we’d extend the deadline, expanding our fee-waiver process. Putting a pause on default orders. So people aren’t getting a default court order without even knowing that they were in the middle of a judicial process. But I think one of … and that’s obviously a really good position to be in … many courts around the world, which were just scrambling to be able to continue to hear urgent matters. But I think what it does tell us is that a lot of the circumstances people have found themselves in during the pandemic are ones that we were kind of already designed to address. We were already designed to address the needs of people who had economic hardship, who had mobility issues that caused them to have to stay at home or not be able to travel to a courthouse. People who had health challenges or varying obligations to family or friends or community. And those are situations which have touched most of our lives to some degree or another during this pandemic.

And so I think if there’s one thing I think that we might be able to contribute to that dialogue, it’s that if you can use human-centered design to account for the many different variables that are facing people who have barriers, who are vulnerable. And if you can account for that, those folks then are going to be able to be a lot more resilient,no matter what the world throws at you, because we already have this built-in agility and flexibility, multiple service channels, multiple accommodation methods built-in and that’s stood us in good stead.

What I really worry about with the public justice system is that it’s a huge credit to the integrity and the commitment of judges and court staff and lawyers that courts have been able to pivot to offer remote hearings. But what I fear is that what has been put into place because of emergency remote hearings, for example, or e-filing, is not human-centered design. And we see this from research coming out of the UK and other places that says, “That’s fine for keeping the doors open, but unless you’re fundamentally redesigning your processes from scratch, slapping a Zoom meeting on a court process that people don’t understand and can’t readily access, or slapping an online forum on your regular court forums is not going to increase access to justice. So I do worry that what’s going to start as an emergency feature will become the new status quo. And it won’t be markedly better in the long run for everyday.

Jack Newton:

Right, if you don’t redesign the system from the ground up, you’re just potentially putting a Band-Aid on a badly broken system. Shannon, maybe elaborating on that question a little bit, to make it really concrete for our listeners: Can you walk through what a typical case might look like in the way, for example, if I had a condo dispute—how do I engage with the CRT, and what’s the workflow for my case look like from start to finish?

Shannon Salter:

Yeah. And if you don’t mind, I’ll use the small claims example because it’s such an everyday example—

Jack Newton:

Sure.

Shannon Salter:

… even to be somebody with a condominium dispute, in BC that tends to be people with more resources and facility sometimes. And a lot of the small claims cases that we get … So a typical small claims matter we might get is you bought a used car on Craigslist and you paid $2,500 for that used car, and the seller told you that it had been recently maintained and that the brakes were new and the tires were new, and then you take it for a drive. You drive it around for a couple of weeks and the tires are propping and the brakes don’t work. So what are you going to do? Well, I think before the CRT, you’d really have some questions to ask about whether it was worse starting a court proceeding, possibly getting legal advice, taking time off work, arranging childcare, going down to the courthouse multiple times, potentially to spend the next year in this process.

With the CRT, you could, from your couch, use the solution explorer—that question-and-answer system I was telling you about—to find out what your rights are as a buyer. You’d find out something about the buyer beware doctrine, you’d look at or have access to consumer protection information. You’d also get things like a letter that you could send to the seller demanding a payment or offering some kind of settlement. And if that didn’t work—still from your couch—you could apply for dispute resolution, pay your fee by credit card, or get a fee waiver instantly, and be invited to negotiate. We would take care of serving the seller of the car, and once he or she was back in the process, then we’d invite you to negotiate over chat. If you could reach an agreement, great—we’d refund your application fee, turn that into a court order for you likely within a couple of weeks.

If you couldn’t resolve it that way, then one of our mediators would step in and work with both you and the seller, either through telephone conferencing or email,to reach an agreement and, again, turn that into a court order if you could agree. And then if you couldn’t agree, you could upload pictures of the car, as well as any text messages from the seller telling you about the brakes and the tires, you could upload a receipt, any estimate from a mechanic, and all electronically again from your smartphone, as well as any arguments that you had. We would bundle that along with the seller’s arguments and evidence and assign it to a tribunal member who would consider that, decide whether to hold a Skype hearing if necessary, and then write their decision, which would be emailed to you along with the court order. And that decision would also be published on our website within 24 hours.

So that sounds like a lot, but again, a median of 59 days beginning to end for disputes that have to go to a tribunal member. And you can do all of that from your couch when your kids are in bed whenever you feel like it.

Jack Newton:

That’s amazing. And I think the important point here is you never need to leave your couch, as you put it. There’s no physical tribunal that ever needs to be attended. Is this solely a virtual, or is there any circumstance where somebody would need to appear in-person?

Shannon Salter:

It’s really driven by the preferences of the parties. So about 99.9% of our parties choose online services, but we offer telephone, mail, video conferencing, and also in-person help at 60 service BC counters around the province. It has astounded us how few people choose offline services. We were counting on about 10, 15% of people saying, “Yeah, I’ll go down to the post office and mail my form and mail my check.” But even pre-pandemic again, 99.9% of people chose online. And I think that is a credit to designing a technology that looks like what people already do. I mean, you know this at Clio, you have a very user-friendly interface. What are people doing online while they’re Googling stuff? They’re buying stuff, they’re face-timing with their kids or grandkids, they’re texting. If you can design your technology to look like those things, people will either intuitively figure out, get a friend or family member on the couch beside them to help them. And they’d rather mostly do that than even go and line up at the post office.

Jack Newton:

I’m curious, what percentage of the disputes need to go to a tribunal member, Shannon?

Shannon Salter:

Very few, about 6% of small claims disputes do. Now, with any small claims around the world, there’ll be a pretty high default rate. So that’s not a great example, but it’s still a pretty high settlement rate. A better example is the condominium disputes, because there’s no defaults—a default happens where a respondent doesn’t participate, but in a condominium building, everyone knows where everyone lives, obviously, and so there’s no defaults. And even there, we have only about 24% of disputes that go to a tribunal member. In other words, roughly 75% settle.

Jack Newton:

Absolutely. And what’s the time to resolution if the matter does not need to go to a tribunal member? You said it’s 59 days on average?

Shannon Salter:

For small claims, if it’s contested.

Jack Newton:

For small claims?

Shannon Salter:

Yeah. If it’s not contested, if it’s a default, it’s 27 days. The condominium disputes take longer, they’re much more emotionally driven. They are a lot more entrenched and complicated. They’re still on average about four-to-six months from tip to tail for those disputes. And then for the car accident disputes, it remains to be seen, because we still have relatively low case volumes for those ones.

Jack Newton:

One of the concerns I’ve heard articulated around online courts is that the digital divide and how folks that have less in the way of technical resources, financial resources, may actually see it as online venues as a barrier rather than something that is more accessible. Can you speak to your own experiences with that and ways that the CRT has mitigated that potential impact?

Shannon Salter:

That is I think a serious risk, especially in this pandemic era, where, as I said, courts are flipping to Zoom hearings and flipping to e-filing. Just doing that is going to exacerbate that digital divide because it’s not using human-centered design. So even though I said a few minutes ago 99.9% of people use online services, we’re part of the public justice system. And so those other channels are going nowhere. We will always offer mail and telephone and in-person help so long as anybody needs that. But I think one of the advantages of allowing that 99.9% of people just to use their phone and go on their way is that you can devote precious human resources to helping people who would otherwise fall through the cracks. So because our parties are not having to fax in forms or go down and have things stamped, our frontline staff are not doing data entry. They are doing the higher-value work of talking to people who would otherwise fall through the cracks.

So instead of standing there entering legal names and addresses, it’s not uncommon for them to spend 45 minutes on the phone with an elderly person who’s running into difficulty or somebody with a mental health issue who needs a bit of extra support. And that is really important, because there’s always going to be scarce resources in the justice system. And so the question is: What is the most valuable thing that each person can do? Where can you have the technology do the heavy lifting, automated stuff for the vast majority of people, and where can you add that human touch where it’s going to matter most?

So for our frontline staff, we don’t hire those people for their clerical skills. They’re basically the registry staff at a court, but instead of being hired for clerical skills, they’re hired for their customer service skills. So we often hire people from call center backgrounds or retail backgrounds or hospitality backgrounds, because we want them to be focused on helping people and making them happy and customer service, which isn’t to say that court registry staff don’t care about those things. They very much do. But their job description is much more clerical and administrative. And that’s an opportunity to shift that over time. So that we’re providing that higher-value service for the people who really need it.

Jack Newton:

It’s so interesting that this digital divide shouldn’t be a reason to stop, but actually gives you the ability to over-index your investment in the folks that might be not as easily served by some of the technology tools that are deployed in these kinds of environments. That’s super interesting.

Shannon, shifting gears a little bit, you consider yourself a justice reform enthusiast, and love that turn of phrase. You were named an Access to Justice All-Star by the National Self-Represented Litigants Project. What are some of the justice reform and access to justice issues that are important to you, and maybe speak a little bit about how you think they should be discussed and advanced in the profession on an ongoing basis?

Shannon Salter:

I think that’s a really important question and a really big question. I’ve been thinking about it a lot in the context of how can we use these opportunities through the devastation of the pandemic to come out the other side with a justice system that is more accessible and humane. And I’ve been thinking a lot about Dan Heath’s book about finding problems upstream. I don’t know if you’ve taken a look at that, but there’s some real takeaways there for the justice system. When we focus, as we tend to, on justice reform that is centered around the judge, centered around the trial, centered around the courts, we are so downstream that we’re almost at the ocean. Instead, I think what we need to do is the much harder cultural heavy lifting of going upstream, getting to the foundation or the source of so many legal problems, figuring out who is best placed to help people resolve those problems, and getting away from the idea that in order to have the best justice system is one that is 100% focused around judicial decision-making.

That’s such an important component of our justice system. It’s important for the rule of law. It’s important constitutionally. It’s important for finality and closure and certainty, but it’s only 1% of cases that end up in front of a judge of the 100% that are filed. And of the 100% that are filed, those are only 1% of the disputes that are out there. And so without getting too philosophical, what I’d really like to see us seize on as justice actors is this idea that we are not central, that lawyers are not central, that the justice system does not belong to us. It’s not for us in that way. It really is about whether the citizens that the justice system belongs to feel that they’re treated fairly, feel that they are heard, and whether they are, in fact, treated fairly and heard.

So that would require us to, I think, adopt a much more humble approach and a much more curious approach. And it would mean that, regardless of technology or regardless of resources, we would go out and start asking questions to people. And so if I was tomorrow waking up and running a court, one of the first things I do is take a clipboard and a piece of paper and go out into that court registry lineup and start asking people questions. What did it take for you to come here today? How long has this been going on? What is your problem? How do you know you’re in the right place? Who has helped you? Do you have children who are being watched? Did you have to take time off work? Did you have to park? What is it you’re trying to get from this process? And do you think you’re going to get that? How long has it taken you?

I think that kind of thinking will lead us more to this idea of what are the outcomes that we want to see? Sometimes the outcomes we want to see are precedent-forming court decisions, but a lot of the time, the outcomes we want to see are children who are not traumatized vicariously through a court process. Parents who are not bankrupted by that process, people who feel that there is a viable way for them to enforce their rights around housing, employment, and other things that matter to them. So I think if we do that fundamental process redesign stemming from a culture that really puts people in the middle, we would end up with a radically different justice system. And the hard part of that is not the technology and it’s not the process redesign. It would require a 180-degree cultural shift.

Jack Newton:

Can you explore a little bit more what you think that cultural shift needs to look like? Even just changing our perspective and being human-centered in the way that we’re thinking about designing the system, thinking more explicitly about outcomes over process and ceremony. Can you elaborate on some of the other types of cultural change that you think need to underlie the justice reform you want to see?

Shannon Salter:

Yeah, I mean, I’m an Adjunct Prof at Allard Law School, and I see this with even the way that we teach law students. They come into law school full of creativity and agency, and a sense of social responsibility, and this is all born out statistically as well. And then we do something to them such that at the end of first year, they are much more pessimistic and less creative and more intransigent in their thinking. And so I think there’s a responsibility across many different actors in the justice system. All of us are responsible, but we do have a culture that is pessimistic. That is risk-averse. That is not collaborative. That is siloed. That is training law students to become lawyers who are very much attached to the past and not so much forward-looking.

And I know this is something Clio has very much disrupted as well, but I think it starts with legal education, because that’s what forms the legal culture one way or the other. And we develop a legal culture where we as lawyers are the experts. Law is the thing that is done to people and we don’t come out of it with a mindset that is curious, that is humble, that is culturally competent often. That is technologically competent. That is service-oriented. That is outcome-based. And I think that all of those things feed into the culture, not to pick on law school because that’s just part of the puzzle, but that’s how we shape this way of thinking that then is reinforced in practice, then it’s reinforced and now is a part of the justice system. I don’t know how you found that. I know that culture is a thing you must have to deal with all the time in working with law firms to adapt to change. And it’s, of course, you mention this in your book?

Jack Newton:

Absolutely. I think much of what you’ve talked about with human-centered design is exactly the same line of thinking. I’m such a strong proponent of client-centered design and client-centered thinking, in my book as well. I think you’re right. I think there’s a lot that law school does to reshape people’s thinking, and in some cases, it does make them less creative, makes them more risk-averse. It’s such a precedent-driven profession that it’s almost, as you pointed out, inherently rear looking, a backward-facing way of thinking about the future and what could be, rather it’s focused on what was in the past. Like any profession, I think we see the technology diffusion curve at work, where you have early adopters and the early adopters are followed by an early majority and a late majority. And eventually, something that seemed like a radical idea becomes generally accepted even in a relatively conservative, sometimes slow-moving profession.

And I think that’s what I’ve been so encouraged over a decade-plus in legal is that there are a lot of forward-looking, innovative lawyers that will be driving the future of what’s happening. I think the work you’re doing at the CRT is a great example of that. Maybe for the individual lawyer that doesn’t have the admittedly pretty cool position you have of architecting a new way of navigating in the justice system and administering justice. What are some of the smaller ways that people want to enroll in this call to action? I hear you articulating that let’s drive some change, let’s think in new ways. Let’s think in a more human-centered way? What are some of the ways that individual practitioners might be able to put that thinking to work?

Shannon Salter:

Yeah, that’s a good question. And I do want to just offer a bit of a counterpoint to what I was just saying, lest I seem very pessimistic, but I do notice with my students, they are incredibly social-minded. They’re very progressive, they’re very thoughtful. They’re very humble in many ways. And so I am really encouraged about the future and I see lots of bright spots, as you do everywhere. So it’s not to say that there’s no hope. I think there’s a lot of hope. I think one of our issues as lawyers—and I’m sorry for being too, again, sort of philosophical or psychological about this—is this idea of identity protective cognition. That I think, although I don’t know if it’s been explicitly applied to the legal profession, I can see a lot of parallels where another thing that happens is that our identity becomes very enmeshed with being a lawyer. And a lawyer is an expert, a lawyer doesn’t make mistakes, a lawyer doesn’t fail, a lawyer knows best.

And a lot of things are things that we have to disabuse ourselves of in order to be client-centered or to do human-centered design. So I think for lawyers—

Jack Newton:

It’s so interesting you mentioned that, and I don’t mind veering in this direction at all, by the way. Some of the conversations I’ve had over the course of this podcast have been with lawyers rather or coaches or psychologists that work with lawyers that have commented on the fact that there’s so much identity wrapped up, even in the simple act of showing up to work in your nice three-piece suit. The COVID-19 crisis has stripped all of that away. And we’re all in our home offices with kids jumping into our Zoom calls and so on.

Like you said, some of this notion that lawyers have about what it means to be a lawyer has been stripped away. And the interesting data point, I think, is that many clients have actually appreciated seeing us more casual, more human side of their lawyer in a context that isn’t the fancy downtown office with marble lobbies and expensive leather, wingback chairs. It’s the home office and you get to meet your lawyer’s kid, maybe in an impromptu Zoom appearance. I’ve heard several clients comment to the effect that they actually really enjoy seeing this more personal and human side to their lawyer.

Shannon Salter:

Yeah, I agree. And as you say, I don’t think it’s the clients who have these expectations. I think there are expectations that we have of ourselves, and that’s fine to a point, but where I think it becomes damaging is that it can really limit our imagination around how to practice. And it can really limit our imagination about how the justice system has to work as well. It can allow us to become unreasonably attached to certain ways of doing things, to certain artifacts, as I call them, of the justice system, even things like, and I’m getting into dodgy territory here, but robes and Latin and dioceses and crest in the background. All of these things that we hold up as the majesty of the system, which I really question. Never seen any empirical evidence to support that, much as I’ve never seen any empirical evidence to suggest that clients appreciate looking at all the expensive things that retainers are paying for when they walk into an office.

It’s certainly something we’ve divested ourselves of because everybody works from home and we hold hearings routinely with parties and nobody has treated tribunal members with less respect because they can see a piece of kid art in the back and the tribunal member isn’t wearing a robe. So it is an interesting whole psychological question, but I think, going back to practice where that can be an issue. I encountered this myself, that there’s one kind of form of success, that—whether it’s explicit or implicit—is the idea that law students come out of law school with like “success looks like getting that big firm job in a big city” and anything short of that is some degree of failure, even though almost nobody ends up there. And even of the ones who do, it’s not a good fit for many of them. So I ended up kind of adopting the same view. I went into law school thinking I would do human rights law, and I came out of it doing corporate litigation at a big firm, which I’m really grateful for that experience. It was such an education.

Shannon Salter:

But when I left that three or four years into it to have my daughter and I did a Master’s in Toronto, it was a good kind of wake-up call for me to say, “Is this actually what I want to do?” And then as part of that grappling, I had to grapple this idea that I felt less successful for choosing to leave that. I think that’s something that a lot of lawyers do struggle with. All to say, if I was coming out of law school tomorrow, and I encourage my students to think this way, there’s such an opportunity for that cohort and for people who are in practice now to think really entrepreneurially about how they would practice? And maybe that would look like offering packages of unbundled services that wouldn’t require you necessarily to have a trust account, wouldn’t require you necessarily to have a paralegal. Wouldn’t require you to have an office that you could do Skype consultations in. You could do Zoom calls. You could make a healthy living that wouldn’t require you to work every evening and every weekend.

But it doesn’t come with a lot of the trappings, it doesn’t come with a lot of the artifacts either. And so you’d have to really change your idea of what success looks like as a lawyer. But I get the sense that’s changed. Looking at the adoption rate for Clio, which is such an enabler of that form of practice or at least a less traditional form of practice. Do you see that something that’s changing?

Jack Newton:

Absolutely. I think we hear from entrepreneurially minded lawyers all the time, that they’ve been able to go out on their own, maybe leave that big firm that they joined, and saw a lot of success with, but realize, “Hey, something like Clio enables me to go out on my own and deliver the same if not actually a superior experience to my clients and better services to my clients. Maybe at a lower price point for the client.” But the lawyer actually sees more of the margin, gets to enjoy, in some cases, a better living than they might have at the big firm, without some of the external pressures to work insane hours and everything else. But like you said: it requires a bit of a mental shift. I think your point around unbundling services, there can be a lot of straightforward things that are even lighter lifts to increase accessibility to legal services.

It can be as simple as offering payment plans for your legal services. It can be thinking innovatively about maybe repackaging some of your legal services as a subscription, for example. We talked about wills earlier. Why shouldn’t wills be a subscription and something that you pay $50 a year for a will that is kept up-to-date with your evolving and changing life circumstances? I think there are a lot of consumers that would opt for a simple, accessible, predictable service offering like that from a Wills and Estates lawyer where maybe, in the end, they actually end up paying more than the $500 or $1000 that a typical will might cost, but they’re getting more value from it. And they’re getting more peace of mind knowing it’s kept up-to-date.

So in that vein, Shannon, I’m curious if we look at the trajectory that we’re on today and maybe are optimistic about, what the future might look like—what does a more accessible and effective justice system look like to you? If we extrapolate from where we are today, what do you think an optimistic view of the future might look like?

Shannon Salter:

It might surprise some people to hear me say that it doesn’t necessarily look like a giant CRT. I think a more accessible justice system looks like a fundamental re-evaluation of every single process within it from a human-centered perspective. So that doesn’t mean that you have a CRT for criminal cases, but what it might look like is, “Well, can we look at how bail is done for people?” “What is the biggest driver for people failing to meet their bail conditions or remake appearances that they have to go to physically?” It would be taking a human-centered approach and fundamental redesign to every single aspect, every single touchpoint in the justice system, where people have to engage with it, and eliminating any area we can where there’s unnecessary administrative burden for people.

I wrote a paper about this recently, just using the example of a fee waiver process, which has become one of my favorite rants because it’s kind of absurd, but the process for a person with a low-income in BC to get a fee waiver requires them to, first of all, figure out the right language and terminology, download a package of court forms, figure out which court forms to fill out. Go around, gather documents, to prove their low-income status. Swear an affidavit. Go down to the court registry, file their paperwork, appear before a master in open court, before that master their financial position, get a court order, and then go down to the registry all to waive $200 in court fees.

And that’s just one example, but it’s an extreme one because that shows how many barriers there are for people who have the least access to the justice system. And by contrast in the CRT, we also have a fee waiver process, and it requires you to click three buttons and say, “You’re not lying.” To claim that you’re on a government assistance program or put your income in and say, “Yes, I know I have to tell the truth. And if I don’t, I could be asked for documents.” So four clicks of a button from your smartphone.

And there’s been no abuse: 3% of all of our cases go by way of fee waiver. So it’s a small example, but it’s one, I think, that’s really crucial because if you were to redesign your entire system, you would take every single process like that and look at it from an outcome basis. What you’re trying to do is allow people who have the least resources to access the justice system that belongs to them. And it’s just a cataclysmic failure in that regard. And I think there’s hundreds of examples of that multiplied across the system that are just born out of always having done it that way. There’s no evidence to support doing it that way, I looked. And certainly, we have produced evidence now and data to show that you can do it a very different way and not suffer any negative consequences as an institution.

Jack Newton:

And you realize, I think as well, we had Lesley Kinzel on the podcast a couple of weeks ago, talking about how some of those really trivial-almost-sounding issues like, in some cases, getting your legal name updated can present this enormous barrier, especially to low-income individuals and just navigating the system and understanding what the path to success looks like for some of those trivial-sounding changes can actually be huge obstacles to their ability to obtain gainful employment or to have a criminal record sealed. It’s really incredible how these small items can create an unbelievable amount of friction for some people in achieving justice. It’s not always boil the ocean. Here’s the big solution. Like you said, it’s not a giant CRT. It’s looking at these tiny points of friction in a very human-centered way and figuring out how we can improve access by eliminating those points of friction.

Shannon Salter:

Yeah, exactly. And there’s a really good book on that by Donald Moynihan and Pamela Herd. Don’t be put off by the title. The title is Administrative Burden, which I think even they’d admit is probably the least glamorous title you could have for a book. But it’s exactly about that. It’s taking all these examples of where a policy design can be created to just put inordinate administrative burdens on the people who can least afford to bear them. And that in itself is sort of a form of sometimes explicit and implicit social engineering to deprive people of those benefits. And I think in our context, nobody’s trying to deprive low-income people of a fee waiver, but it’s just this culture that doesn’t insist on rigorous, empirical-based decision-making that takes the way it’s been done before at face value. And doesn’t question it and doesn’t use that agile methodology to constantly be reevaluating and iterating. So if there could be one takeaway for the justice system, I wish it was that deep curiosity and humility that causes you to do that constant reiteration and reexamination.

Jack Newton:

So Shannon, over our conversation, you’ve touched on a couple of aspects of what the broader legal industry might take away from the experiences you’ve had at the Civil Resolution Tribunal. Is there anything you’d like to add to some of the high-level takeaways that you think are important for the broader legal industry?

Shannon Salter:

I think one of the things that might be most threatening about the CRT, even though we do have a lot of support in the legal community, there’s definitely areas of the legal community where we don’t have that support. I think one of the things that can be threatening is that if, as a lawyer, your business proposition or your value proposition is based on the fact that you are a navigator in a system that is inordinately unnecessarily complicated, expensive, difficult inaccessible, and the public justice system reforms to eliminate that needless complexity and cost and time … if that causes your value proposition to collapse, then you have to really think about what it is you’re offering the public? And it’s not, I think, good public policy to protect that interest.

I hope that the justice system is moving in a direction of simplifying, of using human-centered design, of eliminating the value proposition that comes with being that navigator, so that lawyers can do higher-value work. But it will require many of them to rethink their value proposition and think about the way that they offer services in line with some of the ideas you talked about earlier.

Jack Newton:

I cite this statistic all the time, that the World Justice Project’s finding that 77% of legal issues go unaddressed by lawyers. I think it shows that there’s plenty of room for lawyers to maybe give up the territory of being like you said, a navigator of an overly complex system, move up the value chain, and still have plenty of work to do. This isn’t a zero-sum game. There’s an opportunity to grow the market and an opportunity to provide more access to justice, which is hopefully a calling that all of us can get behind.

Shannon Salter:

Absolutely. And as you say, ideally, also offering a higher value to your clients, more satisfied clients, clients who don’t have sticker shock because they don’t know how much something’s going to cost or what the outcome is. And hopefully, it will lead to a better quality of life as well. I think it is also worth folding into the discussion that, as a profession, we’re not a particularly healthy one. We struggle disproportionately compared to other professions in a full variety of ways. And to the extent that we can add some humanity and flexibility to our own work lives, I think that’s probably to the good as well as increasing public access to justice.

Jack Newton:

Yeah, a great concluding note. I think there’s an opportunity for a win-win-win, where we see healthier and happier lawyers. We see happier and more satisfied clients, and at a macro level increased access to justice. And I think that’s a very achievable thing.

Well, Shannon, thank you so much for joining us today. I’ve really enjoyed our conversation. Keep up the amazing work you’re doing at the CRT.

Shannon Salter:

Thank you very much, Jack. I really appreciate chatting with you.

Jack Newton:

Thanks for joining us on Daily Matters, a podcast from Clio, rate, and review wherever you get your podcasts and subscribe so that you never miss an episode. Daily Matters is produced by Andrew Booth, Sam Rosenthal, and Derek Bolen, and hosted by yours truly Jack Newton. Thanks also to Clio the world’s leading cloud-based legal technology provider for supporting this podcast.