In this interview, Modern Law Magazine’s Editor, Pete Ward, asks the questions.

MLM: As someone who came into law from an IT background, do you think the traditional legal services marketplace has wasted numerous opportunities to adopt better processes and improve efficiency?

RS: In fact, I did not come into law from the world of technology, although many people assume this. I first became interested in technology in 1981, when I was a third-year law student at Glasgow University, and wrote a final year dissertation on computers and the judicial process. Although I have spent much of my career in technology, I regard myself first and foremost as a lawyer of sorts. As to your question, it is a great one, because the story of the last decade, in my view, has been that of missed opportunity. If lawyers and legal businesses had embraced technology, they could have gained great competitive advantage over those who resisted. And by this, I mean they could have delivered a quicker service, better service, cheaper service, and a much-improved service experience for clients, all of which can differentiate a business.

In truth, though, because most law firms have been slow to invest, this has afforded some considerable common comfort. With no law firms making the break and forging ahead, few firms have been impelled to pioneer. They have been more concerned about avoiding competitive disadvantage (“as long as we’re not behind the curve”) than seizing competitive advantage (“here is how we can steal a march on our rivals”). Not investing in performance-enhancing technology has not been a problem so far because the legal market has been pervasively conservative in its use of technology.

In the 20s, however, this will change. With significant and technologically proficient new competitors in the marketplace (I am thinking here especially of the Big 4) and a burgeoning legaltech start-up community beginning to bear fruit, deploying technology will shift from being an optional and potential source of advantage to being a mandatory commitment if legal businesses want to stay afloat.

MLM: As we start a new decade, will online courts displace conventional litigation within that timeframe?
RS: I am always hesitant about timing, largely because it is not within my gift to direct the change. Whether change comes swiftly or slowly will depend on how aggressive this new competition turns out to be, and how much more demanding the increasingly knowledgeable in-house community becomes. As a generality, I like the view of Bill Gates, that less happens in two years than we expect with technology but more happens in ten. Will litigation be transformed by online courts within the next couple of years? Not a chance. Will it be transformed by 2030? No doubt (in my mind at least).

That said, it is wrong to think of there being a simple binary choice between physical and online courts. In fact, there are three options and it is worth being clear what they are. The first are traditional physical courtrooms. The second are virtual hearings, where some or all participants communicate at a hearing via video-conferencing of some sort. The third are online courts, which for current purposes we can take to involve human judges (not AI) making decisions on the basis of evidence and arguments submitted to them electronically rather than in oral hearings.

For any given case, it is likely, for many years yet, that we will find a blend of these three techniques being relied upon. Parts of a case will be handled traditionally, parts by video, and parts by online techniques. And, over time, I expect, the balance will shift towards more and more work being handled online.

We should be careful not to speak of litigation as one monolithic category of legal service. As I stress in my new book, online courts are likely, in their early years, to be used largely for the resolution of low value disputes. For many years yet, complex, high value actions are likely be fought out – adversarially and gladiatorially – in traditional courts.

So, by 2030, I expect many if not most low and modest sized claims will be handled largely online but high-end disputes will be broken down and, while some aspects might be handled virtually or online, I expect the oral traditional will be maintained, certainly for key parts of the final hearings.

The big swing, though, by 2030, will be away from the presumption that all disputes should be heard in physical courtrooms to an assumption that cases should be conducted online unless strong arguments can be made for the need for physical hearings.

MLM: Is the legal sector in control of its own future, or are feature-led tech systems being forced on it by disrupters?
RS: There are three main drivers of change in the legal sector, as I see it. The first is relentless pressure on costs – legal providers will have to find a way of delivering ‘more for less’. Next, there is the new competition – law firms now have formidable company, as I mentioned earlier. Finally, there is technology – our systems are becoming increasingly capable, so that more and more of the work undertaken by lawyers and law firms will, over time, be taken on by machines. The ‘legal sector’ itself will be redefined by these drivers of change. Some providers innovative and flexible law firms, alongside some of the new players) will grasp the opportunities and shape the market. Lawyers and law firms that prefer to hang on to their old ways of working will struggle to survive in the long term – they will be unable to meet the cost demands of the market, unable to compete with the new competition, and unable to match the efficiencies and service improvements that technology will bring.

MLM: Since writing The End of Lawyers?, in 2008, which aspects of technology have impacted most on the legal sector and your thinking, over that period – and has anything unpredictable happened?

RS: Some context might help here. I distinguish between two ways technology can be used: to automate and to transform. The first involves, essentially, grafting technology onto old working practices – streamlining, systematising, and optimising traditional legal service. The second is very different and involves using technology to allow you to do things that previously were not possible or even conceivable. Take court technology. The first 40 years of court technology were devoted to trying to make the old system more efficient. Online courts are a whole different proposition. These were not possible before the early 90s when the Web was invented. This is a development that brings about a fundamentally new way of delivering the service.

Back to your question, the dominant approach to legaltech until now has been automation. In contrast, I believe the 20s will be the decade during which we begin to transform, disrupt, and replace our old ways of working. So, since 2008, I am saying that we have largely witnessed automation – of the back offices of firms (better practice management systems), of their research (the web has become the first port of call), of their communications (email, internally and externally), and of their handling of documents (notably, document management systems and technology assisted review in litigation). Some of these sound pretty dull, like email. But they have dominated.

I have been pleasantly surprised by the huge upsurge of interest in AI. I wrote my PhD on AI and law in the 1980s at Oxford and so have been waiting my whole working life for lawyers to see its potential. That said, there is still much more marketing noise than fully operational systems.

MLM: ‘The End of Lawyers? (2010)’ and ‘Tomorrow’s Lawyer (2017)’ were seen as an inspiration by some and bordering on heresy by others – how do you see the new book ‘Online Courts and the Future of Justice’ going down with the legal profession?

RS: My new book has already had a warmer and more sympathetic reception than my previous ones. On one view, it is about increasing access to justice around the world and most lawyers support this as a worthy aim. Lawyers somehow seem less threatened by the new book. Admittedly, it has a more benign and less provocative title than, say, ‘The End of Lawyers?’ (but, please, always remember there is question mark there), but the fact remains that its central thesis is a direct challenge to much of the work of litigators. I suspect because it focuses quite a bit on low-value disputes and self-represented litigants, many commercial litigators think it is not relevant for them. This a classic failure to recognise the early signs of a disruptive technology,

MLM: As a pioneer of online courts, understanding the benefits and drawbacks, can you put a timeline on how AI and machine learning will come to replace conventional litigation procedures

RS: There is currently a lot of hype about AI. In my estimation, most of the short-term predictions about AI greatly overstate its impact but, crucially, most of the long-term claims hugely underestimate its effect. In the next few years, the most likely AI to have direct impact will be traditional rule-based systems (expert systems) which will help self-represented litigants understand their rights and duties and the options available to them. We are already seeing this in British Columbia with their Solution Explorer. But this will not be to replace judges; it will be to extend the help that courts can offer parties. What most people have in mind when they ask about AI and courts, however, is if machines can replace judges. My answer to that is that there is no prospect in the next decade, for example, of developing systems that can think like judges and deliver decisions with coherent reasons. But we are seeing systems that are able to predict the outcomes of court decisions as accurately as good lawyers. In my book, I envisage, as a thought experiment, the idea of ‘predictions as determinations’ – binding court determinations that are generation by predictive AI.

MLM: What’s on the Richard Susskind agenda following the new book launch – a rest or another project?

RS: I always say that a book launch is not an event but a process. I usually spend about six months, actively promoting my books (speaking and writing around the world). Law firms, conference organisers, and others often host book talks. The sponsors are happy to call these “official” launches of the book in the country in question. In parallel, however, this time, Daniel (my economist son) and I will be finishing off un updated edition of our book, The Future of the Professions, which was first published in 2015. So, I will be writing and promoting. That said, I do take holidays, usually a week at a time, when I try to rest – lie in the sun and read thrillers.

PW: And finally, a self-indulgent question from one writer to another: are you resolute in your writing routine, or do you procrastinate until the hovering spectre of the deadline activates you?

RS: Most people assume, because I have written 10 books, that I must be organised and disciplined. They imagine perhaps that I spend three months each year secluded in a cottage in Scotland, in easy sight of a loch that is my muse, and there I churn out, say, three thousand words of purple prose each day. In reality, I am chaotic and if a global ranking of procrastinators were compiled, I would well up there. In truth, I squeeze in my writing around my day job (primarily, advising and speaking), and so I can be seen hunched over my keyboard on trains and planes, in coffee shops between meetings, and wherever I can plonk down my laptop and put my two middle fingers to the keyboard. I am hugely deadline-driven and so the final furlong is always stressful. When I submit the manuscript, invariably I will say ‘never again’ but about a fortnight later I am wondering what I should write about next.