ODR as a Justice Pathway for Unrepresented Litigants

Welcome everyone to the next edition of the court, ODR podcast. I am Colin Rule, CEO of ODR.com, and I am delighted today to be joined by my friend Becky Kourlis, who many of you I'm sure already know about. After practicing law for almost a decade, Becky spent two decades on the bench, first is a Colorado State trial judge, and then on the Colorado Supreme Court. And she also has extensive experience in ADR, and she's arbitrated and mediated civil disputes as part of the judicial arbitral group. But now she has her own firm, DecisionCraft, and she's also very kindly serving on the board of ODR.com. So, we have a lot of time to strategize together about where all of this is headed. But probably, many of you in the A to J space would know Becky as the founder of the Institute for the Advancement of the American Legal System (IAALS) at the University of Denver, which has just been a pioneering organization in expanding access to justice and building consensus in terms of how, and even especially in terms of how ODR can fit into the future of the courts. So, it's so great to have you here, Becky. Thank you for making the time.

I am delighted to be here.

Excellent. Well, there's a million things I want to talk to you about. I mean, you have just such an incredible track record in terms of driving these collaborative processes to think about the legal system's most entrenched problems. But, you know, talking with you about ODR and how ODR can fit into the courts, I know you've been a real thought leader, particularly in the family context. And you and I have talked about that. But the main thing that I've been spending a lot of time thinking about, and I know you and I have discussed this too, is sort of the growing challenge of unrepresented litigants in the court system. So, what's your perspective now on the challenge that is faced by unrepresented litigants trying to navigate the judicial system?

Well, the challenge is pretty self-evident. It's overwhelming, it's complex. It is a maze for them, and they end up coming out, the other end feeling as if they have been chewed up and spat out. very few of them are able to navigate it in a way that feels good to them, and the simple reason is because the system was built for and by lawyers. It is all engineered around very formalistic rules and expectations and knowing what needs to happen next and knowing what a particular word with Latin origins means. And the classic example of this that I remember is that the application up until not very long ago for legal assistance was called “"In Forma Pauperis.” Right?. I mean, Latin for, “you can't afford a lawyer.” But if you can't afford a lawyer and you have no association with the legal system, how are you gonna know that that's the right form? So that's, that's sort of representative of the extent to which it becomes a catch 22 for people who do not have the benefit of legal services in some way, either Representation or as we're about to discuss a system that is straightforward and designed to help people navigate it on their own.

Right. I've seen some reports that indicate that upwards of 80% in some courts of civil case volumes have one party that's unrepresented. So, it's interesting to think that the majority of cases have an unrepresented party, but the system was designed around the assumption that parties are represented. So, it's almost like, the system is only optimally designed for the 20% of cases where both parties do have a lawyer representing them.

Statistic may be a little bit, high in general civil. Okay. General jurisdiction, civil cases, but clearly in family cases, that's absolutely the right statistic. That in 80% of cases, one or more of the parties is unrepresented. And in the lower dollar civil cases, that's more and more true as well. In theory, the place where the system works the best is where there are lawyers on both sides of the cases, and we know that that's hugely expensive in most circumstances and getting more expensive. So, the system in some respects is sort of pricing itself out of the market.

Mm-hmm. Well, and really it is a cost issue. I mean, when I talk with the heads of bar associations, you know, and they, and sometimes I feel like their assumption is access to justice is synonymous with access to lawyers. So, they say, well, how can we get better access to lawyers? But the challenge is lawyers are expensive and it's hard to get lawyers to deliver services at rates that, are affordable for some of the. The low-income people that are trying to navigate the court process. I know that this challenge of underrepresented litigants is nothing new. I mean, at least the whole time I've been in the A to J field, it's been a hot topic, and there has been a lot of reform, right? Regulatory reform and they talk about legal practitioners who might not be full JDs, that some states are green lighting. I know that UPL has been a challenge, unauthorized practice of law claims because court clerks, court librarians, they're reluctant to provide advice to parties when they come in. what should I do? You know, what form should I fill out? And they don't want to get on the wrong side of the bar because they're not lawyers. So, can you talk a little bit about your perspective on some of the changes that have been happening to address this outside of technology?

So, you chart the path. Colin. We started 20 years ago with understanding that there were more and more people who could not afford lawyers in order to litigate claims or to defend claims. The bar's first response was, okay, we will give more pro bono hours. We will figure out ways to try to help these people.

Sure.

It became apparent almost immediately that there was no way that. Lawyers could donate enough time to cover this gap.

Mm-hmm.

So, we then move toward the various reforms that you're talking about, having an office at the court that was designed to provide information to people without lawyers unbundling legal services, so a lawyer could provide hourly services without necessarily entering an appearance. Limited licensed professionals, which is just now on the vanguard and, sort of taking off in more and more states. But fundamentally, we still are faced with this absolutely clear reality that. People cannot manage the system as it exists. Right. And their insufficient resources to bridge that problem for them, even though there are all of these reforms that have been instituted. And that kind of brings us to where we are now. Where you at ODR are trying to figure out ways to build systems that are indeed navigable for these people who do not have a law degree or access to someone with legal training, just like other systems have been created. So, people can file their own health insurance claims or figure out ways to, you know, register themselves for benefits in some way or another, or summer camp for their kids, whatever it may be.

Yeah.

But in a way that they can do. At home, online, on their own time without missing work, without having to borrow a car to go to court and sit in a courtroom for who knows how long until their case is called, or get a very frustrating answer from a clerk behind the counter who says, I'm really sorry, but I can't help you with that. Right, right. For just the reason that you point out, so the problem despite. Various evolutions, all of which have been helpful and will continue to be helpful. The problem remains,

Right. I remember when I was at Tyler, I worked with a team that built a product that they gave away for free to courts called “Guide and File.” And the goal was to try and provide a simplified process for litigants, you know, so that they could e-file, they'd understand what kind of case they needed to file But it was almost Sisyphean - the task because yeah, you have a very complicated system and you're trying to explain it in a simple way. You can oversimplify it and then people can make mistakes. And I visited many courthouses where they have a big sign right behind the clerks, it says we cannot provide any legal advice. the system is so complicated to try and simplify it with sort of what we call in Silicon Valley, a middleware layer where you can try and make it, you know, without fundamentally changing the process. It's hard to simplify it enough so that it could be self-navigable by someone who doesn't have a lawyer or doesn't have an expert to. Give them advice about what the next step would be. but I do wanna pivot into something you said, which is obviously technology, which is changing the game right now. We have artificial intelligence; we have 98% penetration of mobile devices in the country. So, you know, we were trying to solve the problem, 20 years ago, in a very different way. But now we do have these new tools and it seems like it's opening up exciting pathways for thinking about how could we right size, how could we design a system that could get people access to justice, access to fair resolutions while utilizing these tools to give them an experience that's really human centered on their needs, So, I know, our mutual friend Margaret Hagen at Stanford's talked a lot about this. You know, you need to focus on the needs of customers, the end users, as opposed to optimizing it for some of the intermediaries, which may be the court staff or the lawyers or others who play within the system. So, what are your thoughts about that?

So again, and Margaret was one of the, the international leaders in thinking about the fact that systems should be designed for the people who need to use them. And that's all by itself. That's kind of revolutionary because again, lawyers and judges designed the systems for lawyers and judges. Not even necessarily for their clients because they assumed they would always be there to filter and, modulate the process to serve their particular clients.

Translate the Latin.

Right. So, creating a system that is truly designed for the people who need to use it is where we should have been all along. The glitch there, and we struggle with this at Isles. Margaret has done extraordinary things to try to, manage this particular issue, but finding people who are interested in spending time trying to help you design a system that would benefit them or that would have benefited them when they went through their case in a way that was very clumsy and unacceptable to them, to then pull them aside after the fact and say, okay, so now would you help us really design a system that would have worked for you? There are folks out there who do that, but access to that group of people, it's not like, you send out a survey and pay folks a dollar to fill it out, to say what kind of a system do you think would work for a divorce? so there's some inherent, yes. Issues in terms of truly understanding what people need in those systems. But if we assume we can plug that gap, then the notion that those are the people whom we should be looking to serve, those are the people whose interests should be paramount. That's key to this whole process. But I wanted to point out one other thing as well, Colin, which is that. This really benefits the courts as well.

Hmm.

The court staff, the court clerks, the court administrators, they don't like. Being perceived as failing to deliver a system that is just and accessible. That's not why they signed up to do those jobs. the jobs are, they don't pay terribly well. They are demanding. they don't like the notion that there is this group of people for whom they are failing.

Hmm.

If there can be a system that genuinely works for those people, it benefits the court staff, takes some of the workload away, but it also is very rewarding. And then for the judges, judges really struggle in dealing with cases that have one or more, unrepresented litigants. It's tough. The judge walks a line between. Trying to make sure that, they don't somehow advise somebody of their legal rights and yet keep the playing field very fair and try to guide these people through it. It's very challenging and very time consuming. So, to the extent that there can be a system which is indeed designed for the people who use it, which is. Streamlined, efficient, understandable. It benefits everybody across the board. the only people who you might worry about would be lawyers who are not necessarily included in this loop, but the truth of the matter is these are people who are not hiring lawyers anyway. Taking clients away from lawyers. It is providing people with assistance when previously they had none. So, it is truly all the way across the board a win for everybody in society. We just have to figure out which you are in the process of doing, how to pull together all that technology and build these systems.

Well, it is really interesting. When I was back at eBay, we had something called the usability lab, and we would, send out emails to users and even people that weren't eBay and PayPal users and say, “Hey, we'd like to give you some free pizza and pay you a hundred bucks.Why don't you come into our lab, and we'll ask you some questions.” And, we'd literally had the one-way mirror, and we would put them at a table and bring in somebody and we'd show them our software, our pre-release software and say “If we asked you to file a dispute, what would you do?” And, you know, when we'd video everything, we get lots and lots of feedback, which is very helpful because sometimes if you spend too much time looking at something, you've missed the forest for the trees. And you know, we found out that a lot of the parties when they came in, they thought that mediation was meditation, you know, orthey thought that resolutions were like, new year's resolutions, like to lose weight or something. So, you know, we were so steeped in the lingo, we didn't even see it anymore. And I think it would have been great to have been able to do that with some of these unrepresented litigants, you know? But it's harder to do that. To say, “Hey, we'd like to buy you pizza and give you a hundred bucks to, you know, tell us how the process went when you got evicted from your house.” You know?. That's a different thing because we see that in the family context too. People are often reluctant. They don't want to dwell on their divorce, it's not a delightful experience. It's kind of something to be endured. Optimizing on the, the customers, the actual customers, the people that are trying to get justice out of the system is a huge challenge. And it, it's not simple. a lot of the stuff we built at Tyler…When we actually put it out into the world, we realized, wow, you know, we're looking at people trying to navigate the system and maybe they don't read very well, you know, and there's a lot of text in the system, or you know, just go over here and change your password. Well, that's an obstacle for some people because they just don't even know how to do that. Even though, you know, those of us who are designing the system, it's like, well, it's easy as it can be, you know, just click these three buttons. So, I really take your point, seriously, this is not a simple task to figure out what those needs are. It's essential that we do it.

Well, and you and I have both seen the research on systems. For example, if you have a little person that, guides through like a little avatar that shows you sort of what to do next and, answers questions for some people, that's very helpful. Or how you use bold print in the context of the instructions. I mean, it's an art form, but. I think what both of us are saying is I don't care how hard it is; we have to do it.

Right. That's exactly right. And the tool and AI is putting amazing tools. I mean, I know courts have struggled endlessly with language. If somebody comes in and they speak a language and nobody in the court speaks that language, that's a big access challenge. But, you know, it's an amazing to me what AI's been able to achieve in terms of multilingual translation and not just text based. Right? AI is now creating options for people to come in and speak, explain their situation in natural language, and then the AI can say back to them via voice, “well, it sounds to me like this is your situation and what you're looking to do next is this.” And they can say, “yeah, that's right. Okay, let's move forward.” Or “no, no, that's not right.” So, it's amazing to see how quickly these tools are evolving and obviously if they're in the toolbox. Well, let's use every tool we can get our hands on to try and tackle this problem because it's been continuing for a long time. We've made small progress, but we need to make big progress.

I saw just exactly that system in place at the eye doctor the other day. There was a big sign right next to the check-in that showed all of the languages and somebody could push on a particular language, speak into the speaker and identify what their problem was. And then, the system would distill back to the speaker what the system understood and then immediately translate it and convey it to, the clerk at the front window so that it's..

Like science fiction.

It's moving so quickly.

Yeah, I saw a study the other day that talked about how they're replacing humans at fast food restaurants with like these digital order systems. And they find out that it changes what people order because, you know, you're reluctant to ask for that second apple pie if you're giving it to a teenager. You know, you kind of look like a glutton. But if you're just going to a computer.. Sure. I'll get the extra apple pie. Why not? And I read another article in the Washington Post that said, people that want to improve their attractiveness, you know, they've, they are going to chat, PT and uploading a picture of themselves and saying. I'm getting married in six months and I really want to up my game, you know, what can I do to, you know, be more attractive? And they don't go to their friends and family because their friends and family say, oh, you don't, you're gorgeous. You don't need to do that. But Chat GPT will give it to you straight. It'll say, okay, you're pretty mid, and if you want to go from a five to a seven, here's a plan. You need to buy these creams, and you need to apply 'em on this. You know, so it, it's almost like the neutrality of AI. You talk about this challenge with judges too? I've only seen it in a limited way when I've been involved in arbitrations and mediations, but it is a really tricky thing when you see somebody coming in and you know, they have a right to ask for something, but they don't know that. And if you tell them that they have that right, well then, the other party goes, wait a minute, why are you telling them that? you have to maintain your neutrality. But it's very interesting to me, the degree to which these ais are perceived as putatively neutral and just a resource that everyone should have access to. And while the courts are having a hard time wrapping their heads around how they're gonna integrate AI into their operations, parties are coming into cases and they have printouts from Chachi PT BET and says, well, Chachi PT says a fair resolution is this, you know? and as far as I know, I don't think there's ever been a UP, and this is, I say this to someone who has received a UPL letter from a bar association. Way back in the day, but I don't think anybody's ever filed a UPL letter against Chat GPT, and Gemini and Claude, even though, they can pass the California bar exam in five minutes and get a top 5% result. So, I think there's an interesting opportunity for the technology to step in and play that kind of coaching advisory address a lot of the obstacles that we've long had a hard time figuring out how to overcome in expanding access to justice for unrepresented litigants.

And we have to start with the end in mind, right? We have to, in a family case, for example, how you design the system depends upon what your goals are. If the goal is that you want to allow the parties to dissolve their marriage with as little conflict as possible, right,

Right.

Then how would you build the system? Or if you want to allow them to dissolve their marriage as quickly as possible, how would you build this system, or what research do you take into account in terms of cooling off periods or. How people want to deal with their children. There are a lot of value judgements that go into what is streamlined and what isn't, and where you ultimately want people to end up.

Well, when we designed the rec advisor, back in the day with, heal and the Dutch Legal Aid Board, my partner there, he had a very funny presentation where he said we wanted to build the simplest divorce and separation software ever made. So, this was our design, and he puts up a webpage and there's a button in the middle of the screen that says, click this to get divorced. And then when you click it, you get a message that says, congratulations, you are divorced. And he said, that's the simplest we can make it. However, I think it's a little bit too simple. So how can we build a system that has the right amount of complexity? Not too much complexity, because you can talk about edge cases up, down, left and right, and then you build something it's so complicated, but it has all these procedural protections built in, but it can't be navigated. Or you can build something that's oversimplified and then it leaves out details. So maybe you get an agreement very quickly, but it's not that durable because people find themselves in an edge case that wasn't contemplated in the agreement, and then they have to come back and, you know, do more work. So, it's that right sizing is interesting. it makes me think of Frank Sander. You know, one of the founders of the dispute resolution field, he always talked about fitting the forum to the fuss. if you've got two young people who haven't merged their finances, and they don't have any kids. You can build a pretty simple separation process there. But if you've got people with merged finances and they've earned a pension and they've got kids and they've got ongoing shared costs and a lot of joint assets, well, you need to build a process that's gonna meet those needs too. But it seems to me that, again, good software, well-designed software where you do a thorough dispute systems design and think about the needs of all the parties, and you account for all those edge cases. You can hide some of the complexity behind closed cabinets until the parties need it, and then you open it up and it's right there. Yep. So that's what excites me. And it's not gonna be an easy thing to do. I mean, people, when I first started doing ODR, I had a no family policy. I'm like, “Nope, these are too emotionally fraught, too complicated.” But now it's the hottest area of ODR. And it's because even before you talk to a divorcing couple, you kind of have a good idea what their resolution's gonna look like. You know, the questions that they need to answer. And we have powerful calculators that can come up with good, suggested ranges for child support and spousal support, you know, and pre-configured solutions around things like co-parenting that you can offer to the parties, and they can customize. So, you know, as the technology becomes more powerful and more nuanced, I think it's better fitting the needs of disputants, and I think that's true also for these unrepresented parties.

The one last point I would make, in this context, Colin, is that, as you know, there's a period of time at IAALS where we tried to create some of these systems,

Right,

And that didn't work.

Hmm.

Involvement of the court provides, the imprimatur of authority. There is some trustworthiness that is implied by virtue of the fact that it's a court process, and just sort of definitionally, it means that the end goal of this process is some kind of an order. Some kind of a resolution, which indeed is enforceable, right?

Mm-hmm.

So, the notion of building these under the court tent and alongside other court options that could be in person is really powerful. And it is to my way of thinking at this juncture. It's, sort of. The hallmark of access to justice. Access to justice means access to the courts in a way that provides people an efficient, fair, even handed outcome within a reasonable period of time over which they have some control so they can make some choices along the way. That it's not just a cram down that once they click the button that says I need to get a divorce, then the court. Engineers, everything that happens from that moment forward right there. There also has to be an element of choice and control on the part of the litigant.

Well, and that's paramount in dispute resolution, right? I mean, selfdetermination and feeling empowered is a big part of why the outcomes work. I like your term cram down. I mean, that is kind of what it feels like sometimes. But, you know, the courts are the, they're a pillar of civil society. I mean, they're the entity that we have entrusted in providing justice and providing fairness. So. the imprimatur of the courts is really essential to get widespread access and legitimacy for these tools. But again, as a non-lawyer mediator, I wanna do a shout out to all of my, extra judicial buddies, who are resolving cases before they ever make it to the court door. And, you know, sometimes I think I told you this before when I started odr.com. Or even back when I started Modria, I never wanted to sell the courts. I wanted to buy bulletin boards outside of all the courts that said, don't go in there. come to me faster, better, cheaper, just as enforceable. But I think that it has to be a partnership between the two. I agree. If you're lucky enough to get a Gwyneth Paltrow good divorce, and you have a great relationship with the other side. You find your way to, Hello Divorce or Bliss Divorce, or divorce.com or We Divorce, you can get a great separation. It works for you, and it covers all the bases. But again, those are often not the people that end up at the court on the doorstep or on the front steps of the court. You know, unrepresented saying, I gotta get out of this and I don't have the money to pay for somebody to help me. Courts, what do we do now? And, and I think, that's really where the innovation needs to land.

You're right. And I don't mean to say that there isn't a place for all of the entities and people out there who are helping individuals resolve cases and then maybe just filing the end result, with the court in order to have it enforceable. That you're absolutely right. That's a key element and very important. But for selfrepresented litigants, for unrepresented litigants. Being under that, sort of protective cloak, right?

That this is a court approved process is really important.

I agree. I absolutely agree. And I don't think you can solve the totality of the problem without the courts playing a central role. I've been convinced of that. You know, my old attitude about the bullet boards outside the courts was naive because I really do think the courts have to be, central to it, but also. You know, legal service bureaus and also, regulators. And also, as I say, these, other kind of, social institutions. I mean, that's what I love about the legal practitioner model is, you know, it could be somebody in a community center, it could be somebody in a church, you know, they could provide some of that assistance too. Look, I am so jazzed up to build this and design this and to work with you and all the communities that you're connected to. I'm inspired by your decades of leadership in this and your continued passion for tackling this. I'm not fooling myself. This is gonna be easy. I think it's a lot of work and, you know, the technology does what you tell it to do, but people never do what you tell 'em to do. that makes it more interesting because people are much more interesting than technology at the end of the day. But I just want to thank you for joining me and talking about these topics and serving on the board and brainstorming with me. it's exciting the opportunity ahead of us and there's a lot of hard work, but nothing worth doing was ever easy. So, thank you.

And Colin, I want to make sure that I don't lose the opportunity to thank you for your leadership over the decades in this field. You have truly been a trailblazer, and you have the admiration and respect of people all over the world for the work that you have done and are doing. So, it's a privilege.

Well Becky, I'm picturing our listeners throwing up because we love each other so much. But I'll be the head of your fan club, and you could be the head of mine, okay? I'll invite somebody on who really doesn't like me and thinks I've made a mess of things. But for this, for this podcast, thank you so much for your compliments. I appreciate it. And the appreciation is mutual. So, thank you for taking the time today and let's talk again soon.

Okay, thanks, Colin.