Exploring new innovative models in family law
Written on behalf of the Osgoode Hall Family Law Association
I ask myself this question regularly. Technology now delivers countless essential services. Banking is automated. Dating apps are the norm. We Uber everywhere. But our legal system is stuck in the past. When it comes to technology, Ontario is approximately 20 to 25 years behind the US District Court system, which was made paperless in the mid-2000s. Our legal service delivery models lack innovation and efficiency.
Why do we care about providing more efficient and more innovative services? From a long-term perspective, we should care because failing to do so may threaten our job security. Some stakeholders believe that judges risk being displaced by arbitrators and algorithms. One judge commented that we could likely substitute a refusals motion “for an algorithm programmed to discern what is relevant and what is not”. For that reason, “the legal community needs to adopt a mindset where judges and lawyers see themselves as providing a specialized retail service, delivered with the technology customers expect to use”. Currently, there is no requirement that lawyers or judges be technologically competent. But perhaps a technology competency requirement would serve as a much-needed incentive for professionals to develop these skills.
There is another, pressing reason why we should care about providing more efficient and innovative services: no one can afford family law services. Between 60-85% of litigants in family court are self-represented. The overwhelming majority self-represent because they cannot afford to retain a private lawyer for $300 per hour. A family law trial costs thousands of dollars. People lose their jobs to represent themselves. People develop mental illnesses while trying to navigate complex and life-altering family law issues, often involving their children. SRLs also slow down the system due to lack of knowledge, support, and guidance.
The private service, retainer model is not sustainable. That being said, the world is changing. Legal innovators have started to create artificial intelligence based legal services including Divorce apps (Thistoo) and websites that provide an online platform for people to create legal documents without the assistance of a layer (Wonder Legal). This website provides template documents for travel consent letters, last wills and testaments. Websites are helpful. They provide accessible information. They give people a place to start. Something is better than nothing, especially with respect to wills. But if law was that easy, why would we spend three years learning it? The law is complex and ever-changing and the devil is in the details. Clauses need to be tailored to individual circumstances. Current templates do not understand context and will often miss important details that may make an agreement unenforceable. Maybe this will change but right now it is an issue. Some advocates also note that lawyers can acts as an “independent hand” that can fight off undue influence.
So, perhaps, technology is not the panacea, at least for now. But there are other innovative models that deserve attention in family law. Legal coaching is one of them. Legal coaching has four unique features: 1) the client does the work, 2) the client receives procedural and cultural support, 3) continuity of service is provided, and 4) the lawyer and client form a partnership. The legal coach does not perform the task associated with the file but guides the client as he or she does the drafting, as much as possible, with feedback from the coach. The legal coach also takes responsibility for a client’s need to understand legal procedure and “the culture” of the justice system. This involves assistance with drafting, negotiation and advocacy, but also help navigating the process and tips on courtroom etiquette and decorum. Legal coaching also involves continuous service, which is more likely to produce more efficient and effective outcomes for clients. Finally, coaches aim to build a trusting partnership with their client. A team-approach means the client will participate more fully than they would in a traditional solicitor-client model. Coaches strive to provide clients with more control over their matters, encouraging them to be “active partners”, listening to them and having confidence in their abilities. Because the client is more informed about the process and shares responsibility for the outcome, lawyers report that their liability is reduced under this model. It is also lower cost than traditional unbundling services.
Besides providing increased access to justice for SRLs, preliminary research indicates that it also provides benefits for lawyers including professional satisfaction, work-life balance, and expanded business opportunities. In 2017, Director of Pro Bono Students Canada, and former family lawyer, Nikki Gershbain focused on 1) developing a coaching training program for family lawyers and 2) building support within the legal community. According to Gershbain, there must be “widespread public awareness of the availability of these services” and a “massive ramp-up” of service delivery by the family bar. She noted that the development of a professional culture in law that is “conducive to offering innovative services” requires concrete steps to be taken by the government, legal institutions such as the Law Society, and other professional organizations.
Hopefully, lawyers will keep an open mind to new models such as legal coaching as well as the importance of developing technological competence.