Sustainable courts: unbundling adjudication

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There are some very good unbundlers among the street vendors in Mali. Walking the streets of Bamako, you can see plastic bags filled with water stacked up next to piles of plastic bottles and piles of plastic caps. These are all sold as separate goods. When I saw it, I found it funny at first but after having given it some thought it appeared as a textbook example of unbundling. The bags of water, the bottles, the caps; each adds their own value. People who are thirsty buy the water and can immediately drink it. But when they want to transport it, they can also buy a bottle. And when they want to protect and store the water they can also buy a plastic cap. These street vendors thus unbundle two vital goods (water and its distribution infrastructure) by following function and added value.

We could look at adjudication in a similar manner and explore what value adding services courts deliver to see how they could be priced separately. Such perspective might shed new light and help to work towards more balanced court fees. Court fees that better reflect the real costs and thus contribute to making our courts more sustainable.

Unbundling is at the center of the attention of people interested in the future of the legal services market. Practice shows a trend of legal services developing into a broader range of services with a narrower scope:

  • Helping people to help themselves by providing coaching services to self-helpers, including self-represented litigants, offering legal document templates, etc.
  • Providing reassurance to people by diagnosing legal problems, providing advice, reviewing draft documents, etc.
  • Preparing and taking legal actions on behalf of clients by drafting legal letters, assisting in negotiation, submitting documents to court, representing people during court hearings, etc.
  • Acting as a neutral facilitator who mediates between two people, structures communication, provides guidance on legal issues and direction for settlement.
  • Making agreements and decisions sustainable by providing follow up services that increase compliance.

Unbundling of adjudication services, however, is less commonly discussed. Court fees reflect this. The standard payment model for adjudication services is to work with flat court fees. Fees paid as an entry fee that do not cover the real costs. Court fees usually are set with both the need to keep courts accessible in mind as well as the desire to pose a barrier so people are discouraged to start a procedure too easily. They are not set with the value they add to disputants in mind.

Courts are crucial for resolving disputes, were it only for the fact they are the outlets of imposed decisions that are backed up by state coercion. But courts, obviously, are much more than impressive buildings where judges draft binding decisions. More than three decades ago, William Landes and Richard Posner were among the first to think of adjudication as something that can be seen as a service (they call it a good) that can be unbundled and separately marketed. In their analysis, courts delivers two goods. The first is the public good of creating legal information. Courts bring more concreteness to legal norms because they apply them to real cases. This helps to keep the law up to date and makes sure that possible gaps are filled. It might be difficult, however, to see this as value for disputants in a specific case but rather is something of value to society at large. The second value Landes and Posner discuss is the private good of resolving a specific dispute. When we look at the current practice in courts worldwide, this might come down to the following types of value courts add for disputants:

1. Providing a credible threat of a neutral intervention. The simple fact that courts are always there and will take a decision that is binding is of immense value. By being available like this, courts do two things: A) They help to create incentives on parties to cooperate in a process that leads towards a solution. This is illustrated by the notion that people settle at the steps of the courthouse: the credible threat of a neutral intervention (after a court procedure has been opened) gets people in a more cooperative mode. B) They serve as an instance of last resort that will end a dispute when all else has failed

  • 2. Establishing facts. 

Courts are very much orientated towards establishing what happened. Extensive discovery procedures, tasks and assignments to provide evidence so certain facts can be established, hearing witnesses, etc. Courts add value for disputants to come to a joint understanding of what happened, which can be seen as a basis for finding a solution towards the future.

3. Indicating margins and suggestions for fair and effective solutions. Even though some lawyers do not like it, the trend is that judges – subtly – nudge parties towards settlement. Sometimes they elaborate on a possible and hypothetical decision. Some judges take this a step further and show parties what outcomes other people settled for in similar situations and what objective criteria they used. This is a high value intervention because it gives parties direction on their settlement efforts. These margins and suggestions can function as objective criteria in their problem-solving negotiation efforts that help them to seek for solutions that safeguard the interests of both.

4. Deciding on legal issues so that there is clarity. Sometimes disputants simply disagree on what the law is, how a legal norm should be interpreted. Courts then help to bring clarity so disputants can move on with other issues they have to solve. Personal injury claims is a good example of where courts can add this type of value. It might be needed to first establish a fault, which a court can do. After this is done, parties often go back to the negotiation table to find a settlement on damages compensation.

5. Coordinating the experts and interventions needed to solve a problem. Sometimes, courts go much beyond strictly legal issues and really focus on safeguarding interests or solving a problem. They take the initiative for psychiatric examination, monitor the progress of rehabilitation of a drug addict, or tell divorcing spouses to maintain a joint care taking plan for their children. Judges add value by taking the lead and coordinating the process in such a way that interests are met and problems are solved.

The forthcoming HiiL Trend Report on the future of courts further discusses different types of value courts add (including innovations and trends in value adding services of courts). The trend report also explores a pay as you go court fee model that reflects these types of value.

If all these different elements of what a court provides have value for disputants then why not ask a separate fee for them? It might be a bit of a provocative thought, but we already accepted such payment models for other very important public goods like health care and education. In times where courts struggle with their budgets it is worth to explore the unbundling of adjudication services.

M-Sheria: mobile legal information

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msheria logoM-Sheria is a mobile legal helpdesk I am developing in Kenya together with my partners Gertrude Angote and Carol Mburugu (both lawyers from Kituo Cha Sheria), and John Karanja (our techie from Space Kenya). I got the idea for M-Sheria some years ago while I was thinking of access to justice gap as a logistical problem.

A few times a year, Kituo Cha Sheria organises a legal aid day. They open the doors of their office in Nairobi to all vulnerable people with a legal problem. A group of legal aid lawyers comes to their premises and sits behind tables, available to provide advice free of charge.

A queue usually develops at the gate as early as five or six in the morning, even though the gate only opens at nine. For these people who generally live below the poverty line (they live from less than $2 a day), coming to the office is very costly. Many traveled far to get advice, sometimes taking them as long as four hours. They had to organise the money for a ticket of the matatu bringing them to Nairobi, organise someone to take care of their children. And maybe more important, give up a day’s income.

Kituo Cha Sheria also established several community justice paralegal centers to serve the poor. After several visits to the paralegals in Kibera slum and Kamakunji slum it appeared to me that these places have great local resources. Trained paralegals like Bob with dispute resolution skills, a “getting things done” mentality and good moral standing. They work as neutral facilitators but they do pick sides: they pick the side of justice.

A big difficulty is that these paralegals have limited access to legal information, which they report as a major bottleneck.

Lawyers are a key source of actionable legal information. Information that moves beyond the general statement that a worker has a right to a safe workplace. But instead tells people what concrete criteria determine whether a workplace can be considered safe.

Kenya has less than 2,000 lawyers to serve a population of 41 million of which 50% lives below the poverty line. All of these law firms are based in Nairobi or one of the other big cities. While 80% of the population lives in rural areas. Approximately 500 lawyers occasionally work on a pro bono basis.

citySome of these lawyers are access to justice champions who are dedicated to serving the poor. These are the lawyers that provide support to the paralegals and visit their community justice centers once a month or so. Sometimes more frequently, sometimes less, depending on how much time the paid work at their law firms in the business center of Nairobi leaves them. The local infrastructure makes visiting one of the community paralegal justice centers a time-consuming event. There are just so many hours in a day and the rent needs to be paid at the end of the month.

Thus the access to justice gap also is a logistical problem. The legal information that is commonly available is too general to apply to concrete legal problems. More tailored and actionable information exists, but is deeply hidden in law firms located at the business center of the city. In many ways, this is too far away for the people who need it most. Lawyers who want to provide legal aid face a tough time reaching out.

Coordinating and timing delivery of information, waiting in line, traveling to the source, while incurring serious opportunity costs: this all seems unnecessary evil for just getting access to information.

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M-Sheria bridges the gap between the justice champions in the law firms and the people that need them. And reduces the costs and logistical barriers to serving the poor and vulnerable.

M-Sheria:

  • Creates a central place where demand and supply can easily meet (a simple website).
  • Uses the communication channels that people already use (SMS and USSD for the clients, website interface for the lawyers).
  • Works from actionable legal information that is standardised but can be easily tailored (FAQ through USSD and website, personalised advice per SMS).
  • Builds on local support units that help to act upon the legal information (community justice paralegals).

slumM-Sheria allows people to send a question about their legal problem per text message to a short code (currently 22380). The person receives a confirmation message and an automatically generated suggested answer. The question is categorised and published on www.msheria.com.

website oplossingThe members of the M-Sheria network (Kituo Cha Sheria moblises their network of over 500 pro bono advocates from throughout the country) read and answer the question online. The person who asked the question automatically receives this answer per sms. The paralegals in his community can help with either interpreting the answer and give reassurance, or take action upon it. These paralegals of course can also help to formulate the initial question, and ask questions themselves.

Questions and answers are anonymised and made public on www.msheria.com so the platform creates a repository of FAQ’s and develops into a public good. M-

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Sheria thus hopefully overcomes the logistical barriers to delivery of legal information and access to justice. It may gradually develop a catalogue of frequent legal questions and answers.

In a next version, M-Sheria can include:

  • USSD application for menu based interaction with the content on the platform.
  • Intelligent Voice Recognition solution which reads out the answer to the subscriber in either English or Swahili.
  • Location based mapping of paralegals and other people who can offer personal support.

M-Sheria unbundles legal aid services which probably impacts the funding model:

  1. The application itself delivers standardised legal information. This costs the person with a legal problem only one SMS. The revenues from this are used to develop better standardised legal information: more sharing rules, more localised information about where to go and who can help, etc.

2. The legal aid lawyers that are part of the M-Sheria network deliver the tailored legal advice through the system. The costs for this are the costs associated with one SMS. The revenues from these SMS’s go to the platform and are used to cover the costs for hosting, maintenance and improvement (including data analyses). The pro bono lawyers get rewarded in kind (they are highlighted as Shujaa – kiswahili for hero – on the website and in newsletters from Kituo Cha Sheria that have high circulation among their peers). Usually, these lawyers do their pro bono work in anonymity and they see how they can benefit from this type of exposure of their compassionate work.

3. The paralegals receive training in working with M-Sheria and are well equipped to help illiterate people use the services. They can also provide the dispute resolution skills and support to people solve their problem. Legislation currently prevents paralegals to work for a fee (they cannot charge their clients and have to pay themselves for traveling costs etc.). I see how the paralegals add a lot of value for people with a legal problem. A small study we did in several slums showed that people are willing and able to pay a small fee for these paralegal services, so there seems to be a genuine market for their services. Just like the legal aid lawyers in developed countries ask a monetary contribution from their clients, these paralegals could do the same.

M-Sheria has currently been developed, tested and soft-launched in Kibera and Kamukunji (Nairobi). The Dutch ING Bank (with Peter Smits being crucial in this) kindly sponsored this. We now seek to develop a true business model for M-Sheria where the services become paid and profitable “base of the pyramid” services that allow us to scale up rapidly. I will post updates on M-Sheria on this blog.

O, I forgot to tell you that M-Sheria is kiswahili for mobile law. Our slogan wakili mkononi means something like a mobile lawyer in your pocket. When we came up with this slogan we thought of a mobile phone in your pocket that gives you access to high quality legal information. The first three people I shared it with, however, had associations of a lawyer grabbing money from your pocket. So much work to do still.

Bob and the legal information gap

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The Kibera slum in Nairobi is one of the biggest in the world. Estimations of the number of inhabitants range from 170.000 up to 1 million people living on one square mile. Whatever the exact numbers are, one thing is certain: the population is highly dense.

When I first visited Kibera, I immediately noticed the open sewage system. Its penetrating odour, mixed with the smell of the abundant heaps of garbage, is inescapable. This is what photos and video footage did not prepare me for. After one of the frequent rainfalls, the unpaved roads merge with waste of all sorts and turn into a messy mud pool. A trail of mud meanders across the small, tin roof shacks. These small houses provide a home to many families.

In this place, so I learned, people can come home one day and find all their belongings out on the street. Their lock on the front door replaced, or the roof removed from their house. It is a common way for landlords in Kibera to give notice. People know that if they come home to this, they have to go and find another place to live.

The odds of the extremely poor people who live here ever getting assisted by a lawyer are small. Despite the fact that there are some legal aid organizations that work here, there are too many people experiencing too many problems. There are too few lawyers to assist them and too little resources to facilitate them.

For a few years, however, there have been community paralegals in Kibera and in other Nairobi slums like Kamukunji. These paralegals consist of local men and women selected on the basis of their good standing. These paralegals are also the fixers, the people who get things done.

Meet Bob in this video. The video also introduces Richard (the principal of a girls’ school and also serves as a paralegal in Kibera) and Olando (one of the most dedicated legal aid lawyers in Nairobi):

Credits for this video go to @stefvermeulen and @jaapvtkruis.

Bob is one of the paralegals trained by Kituo Cha Sheria. He has been for more than three years now. He knows the basics of the law and the basic structure of the legal system. Bob knows which courts can help people with which problems. But, like most people all over the world, Bob and his colleague paralegals do not move legal problems to court. Bob supports people to solve most legal problems among themselves. It is no surprise that Bob enjoys the training in dispute resolution skills he occasionally receives (when there is funding, of course).

The people who come to Bob for advice and assistance with their legal problems have the same kinds of the problems that are most frequent all over the world. These are usually disputes within families over issues like maintenance payments or inheritance, between neighbours over plots of land, with landlords over increases of rent, or with employers when they are dismissed.

As becomes clear from their story, paralegals like Bob would like to have increased access to legal information. Information that tells their clients what they are entitled to and how they can get it. This kind of information would help the paralegals to inform the people who come to them what they can reasonably expect. Or what they can do to get what they want, and where they can go for further support.

The only legal information materials Bob and his colleagues have are printed resources with basic information they received during their training (the text of the Constitution, the most important statutes, the structure of the Kenyan courts system, human rights documents, etc.). Although important for creating basic awareness, this type of legal information is not actionable. It might inform them that under the 2010 Kenyan Constitution, women have a right to maintenance money for their children in case of separation, also for children born out of wedlock. But knowing this right does not help Bob to objectively establish a fair amount of maintenance money. Similarly, he might have learned that increasing the rent is not allowed without actual improvements of the house. This, however, does not tell them which improvements can reasonably result in which increases.

Information is the currency of justice. Legal information can bring neutrality in disputes. But only if it is sufficiently concrete, intuitive and understandable.

The academic hospital model for the justice sector

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A few weeks ago I defended my PhD study on how we can develop law as sharing rules: straightforward rules that facilitate dispute resolution by establishing a concrete fair share of value, damages or tasks. My study covered the broad range from fundamental research (using experimental research methods and systematic literature reviews), to design studies, to testing in practice. Parallel to this, I developed concrete applications. While I engaged in all these types of research and development activities, I came to realise that the justice sector can learn much from medicine and the health care sector.

We already do to some extent. Maybe because the law faculty and medicine faculty shared a building at the oldest European university (in Bologna) and were closely connected.

Just like law and the legal profession, medicine and the medical profession traditionally were seen as an art. As a matter of practical reason. Education mostly consisted of mastering general principles and rules and – on the basis of anecdotal evidence captured in case studies – learn how they can be applied. So in a way medical school was much like law school that emphasises legal principles, general norms, case law applied to the concrete circumstances of a given case.

In the mid 1990’s, a shift emerged in medicine. Practice got rationalised. Gradually, emphasis was put on developing effective practices rather than on discussing principles. On what works.

This new paradigm of evidence-based medicine made professionals more effective. Less case-by-case decision-making on the basis of general rules, principles and authority. Decision-making takes place on the basis of robust professional knowledge, conveyed through user-friendly professional tools. Tools that are continuously and systematically scrutinised.

During the past years, justice professionals increasingly aspire to work evidence-based as well. This probably started in the criminal justice system where research systematically examined what works in prevention and corrections. Later other domains followed, with subdisciplines like civilology studying how private law works in real life. These approaches help us to develop more effective rules, procedures and interventions.

But where can we test them? Systematically assess their impact? And collect data about their broader effects on general population? There is no such place where we can implement rules, procedures, and interventions in a controlled environment, or even run a randomised controlled trial.

Since the beginning of the 20th century, academic hospitals have been the workplaces for academic research and education in medicine and health care. Where practitioners and academics very closely work together as colleagues. And they collect data that helps them learn a lot about diseases and ways to cure them. Where they experiment with different treatments and figure out what is needed to make medical interventions work.

In addition, academic hospitals have a development function. Professionals working here test and develop more effective and affordable pills and potions. They design better operation rooms that increase hygiene. And draft protocols based on the best evidence available so we all get the most effective treatment.

Imagine we would have the equivalent of an academic hospital for the justice sector. Something like an academic court or justice workplace or laboratory.

A place where justice delivery professionals, justice process designers and justice researchers work shoulder to shoulder, as colleagues. Where we could test new procedures and rules. Assess their impact on the quality of procedures and outcomes (as experienced by clients, lawyers and judges). And on the costs for parties and society. Where we could collect and analyse data so we would better learn how justice is experienced by people.

I think the organisation I work at comes a bit close to this. We engage in research studies and regularly publish the results in trend reports, at a policy level we provide advice on strategies based on innovations, we design and test new justice processes in our justice innovation lab, and we measure and assess the impact of all of these.

But I am wondering what more is out there. Please feel free to contact me with your examples.

Legal codes: updates are ready to install

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Throughout the recorded history of law, lawmakers used state of the art technology to draft laws. This helped them to increase their effectiveness and to reduce the costs of production and dissemination of legal norms.

We should do so again.

Hammurabi’s code (from 1700 BC) was aimed at creating transparency of the law. It consisted of clear and understandable rules that were chiseled in rock. This rock was placed in the market or at the palace of the king so it could be consulted.

Codex HammurabiThe concreteness of the rules meant that everyone (who could read) could know the laws as the following sample from the Codex Hammurabi illustrates:

“If any one loses an article, and find it in the possession of another: if the person in whose possession the thing is found say “A merchant sold it to me, I paid for it before witnesses,” and if the owner of the thing say, “I will bring witnesses who know my property,” then shall the purchaser bring the merchant who sold it to him, and the witnesses before whom he bought it, and the owner shall bring witnesses who can identify his property. The judge shall examine their testimony – both of the witnesses before whom the price was paid, and of the witnesses who identify the lost article on oath. The merchant is then proved to be a thief and shall be put to death. The owner of the lost article receives his property, and he who bought it receives the money he paid from the estate of the merchant.”

The example seems to assume that the merchant obtained the item unlawfully and consciously, but what if the merchant would also have witnesses a lawful purchase? So a problem was that the very concrete rules in the code quickly showed unforeseen gaps, and risked becoming outdated pretty fast. These gaps were making the (re-)production costs of laws rather high.

Later, the drafters of the Codex Justinianus worked with parchments and ink and developed a solution to the high production costs. Instead of working with concrete rules, they drafted a more abstract code. Law became a system of more general rules that offered principles for concrete cases, but no criteria for concrete outcomes. The code was more durable, and reduced production costs due to longevity, but decreased the application of the law as a guideline for an outcome for a particular case. Experts increasingly were needed and a legal profession developed.

code napoleon

This approach was also followed by the drafters of the Code Napoléon. But now the invention of the printing press had made it possible to dramatically reduce costs.

Each of these codifications used and utilised the state of the art information technology available: rocks and a chisel, parchment and ink, the art of printing books.

Nowadays information technologies offer great opportunities to reduce the costs for dissemination. For many countries the legal codes, and sometimes case law as well, are accessible online. Regarding what is produced, however, not much has changed. We still draft codes and design systems of rules that are aimed to last, and this means norms are often open ended. But we may be heading for a new era of codification, having much better technologies available, and knowing much better which information is most useful.

The current tables for determining child support, formulas for calculating severance pay, grids for guiding claims in case of personal injury, etc. are very detailed, taking many contingencies into account. These sharing rules re-introduced the concreteness of Hammurabi. But they also took from Justinian and Napoleon, namely the general principles and guidelines behind the rules, as well as the flexibility. This flexibility was reintroduced in a new form. Where traditional codes offer flexibility through the use of words such as ‘reasonable’ or ‘appropriate’, which allow for interpretation, flexibility is now created by seeing the rules not as legally binding, but rather as guidelines that are used by judges, lawyers and other dispute resolution professionals.

As yet, there is no central platform to bring together all these rules, and codification 2.0 may be a much more decentralized venture, perhaps borrowing elements from Wikipedia. But it is not difficult to imagine what a website like this could look like.

Some building blocks for Codification 2.0:

  • http://www.supportguidelines.com gives an overview of child support guidelines in US states, England, Canada and New Zealand, and the many sites that offer this information.
  • The basic criteria for determining severance pay in 183 countries have been collected in a database of World Bank researchers. See Holzman R. et al., Reforming Severance Pay (eBook). An International Perspective, World bank Publications (2011)
  • Many other important criteria and sharing rules that help to settle frequent distributive disputes are shown on http://www.hiil.org/bestpractices.

An underlying vision is to create a place where people easily can access the clear rules that matter most for them. Not a comprehensive system for all disputes, but the 3 or 4 criteria that are most relevant for the 10 most frequent problems. No rules emerging from a court procedure and hidden in a judgment, but simple criteria just three clicks away. Not drafted by a small legislative commission working on it for years but with input from professionals and experts that work with these criteria on a daily basis. So they can stay up to date.

The major codification projects in the past have occurred only at very specific moment in history: as an ambition of one powerful leader or during the birth of nation states in the 19th and 20th century. They are very costly projects, and usually needed many, many years to complete. Once they were done, they proved immensely valuable, and are used to this day as repositories of useful rules.

The major thing that is currently lacking is a sustainable way to fund the development of a Codification 2.0. Part of the problem is that we are dealing with an information good, i.e. a good that is very easy to reproduce and distribute (they are easy to steal) that is also a public good. This is a major challenge for social entrepreneurs.

(The original version of this text was drafted as part of a HiiL Trend Report)