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VOL. 130 | NO. 120 | Monday, June 22, 2015

American Bar Association President Pushes Online Models for Civil Disputes

By Bill Dries

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The president of the American Bar Association says the traditional method of providing pro bono legal services in civil matters to those who can’t afford to pay for an attorney isn’t working despite best efforts.

HUBBARD

And William C. Hubbard wants those in the legal system to work more with tech companies finding a demand for online dispute resolution programs.

“Despite all of our best efforts, we have not closed this justice gap despite more pro bono work and more support,” Hubbard told a group of 200 attorneys and judges Thursday, June 18, at the Tennessee Bar Association’s annual meeting, held this year in Memphis.

“The current system as it affects those who do not have access to justice is just broken and we need to fix it,” added Hubbard, who is an attorney from Columbia, S.C.

Hubbard cites a report from Modria.com, the online dispute resolution company that spun off from eBay and PayPal in 2011. Of 60 million annual disputes on eBay, 90 percent are resolved using software with no human intervention and the results are “almost never” appealed in court, according to Modria.

While Modria’s efforts and pitch are aimed at business disputes, Hubbard has already begun talking with the company and similar online companies.

Modria cites property tax disputes in Nashville that are settled online among other uses and concludes “the next justice system will look more like ODR than the courts.”

Hubbard also cited IBM Watson, which is described by IBM as a “cognitive system” that “enhances, scales and accelerates human expertise.” Hubbard said IBM is exploring ways the system could be used to cut the corporation’s legal costs.

“People are migrating en masse to these online services,” Hubbard told the TBA luncheon gathering. “We need to make sure we don’t have perhaps two justice systems that operate independently – one totally online and totally unregulated and one highly regulated but not innovative enough. We need to synthesize those two systems.”

To Hubbard, it’s not a choice of either/or.

“Lawyers are bound by certain fiduciary obligations and these technology companies just do what they do,” he said later. “But they are not accountable to the public and to the courts as lawyers are. But they are doing some good things. They are providing a service that people want, that consumers want. So we have to figure out a way to combine what we do and build those protections in.”

Hubbard’s predecessor as head of the ABA, James Silkenat, talked last year in Memphis in more traditional terms about the problem of legal representation in civil cases for those who can’t afford such representation.

Silkenat called for a “civil Gideon” – applying the U.S. Supreme Court’s Gideon case ruling that requires the appointment of an attorney in criminal cases for defendants who can’t afford an attorney to civil cases.

But the call for such a requirement has raised questions about who pays for such representation and what the cost would be.

“It’s a way of delivering on the promise of civil Gideon,” Hubbard said of the idea of online dispute resolution with legal standards. “We simply don’t have the resources. We need some regulatory changes to remove some barriers so that we can meet that promise of civil Gideon. It’s a methodology question and a methodology opportunity.”

For the legal community, he said the issue is more than keeping disputes over PayPal accounts off a court docket heard by a judge in a courtroom.

Hubbard said the issue is Americans whose lives are complicated by issues that should be resolved in civil courts. Some who can’t afford attorneys are increasingly representing themselves in such matters against attorneys on the other side of the issue.

“People do not seek legal help because they simply don’t recognize their problem as a legal problem,” he added. “Among the very poor someone might get an eviction notice and the interpretation is, ‘That’s just my plight in life. That’s what happens to people like me.’”

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