Lawyered Up: Why Open Justice Isn't Working

At the heart of good civic technology projects are user-centred design principles. After all, one of the things that sets civic tech apart from other socially minded enterprises in my imaging is the attachment to citizen’s needs, rather than the pursuit of a particular social justice end. In addition, a very central activity to user-centred design, in the context of social change organisations, is understanding the needs and incentives not just of your intended users, but other stakeholders as well. Like any good systems analysis exercise, it helps us better understand how we might get the outcomes people are really looking for.

Doing this in the context of our attempts to open access to court records in South Africa has been an eye-opener. I have spent many hours in the Cape High Court both participating in, and observing, the chaos of court filing. These hours have helped me come to an interesting conclusion: it is not that courts resist openness because of the politics of it, but rather the main actors within this system currently have their needs met by the system being closed. In other words, in order to create long-term change, we must be thinking about how to change incentives of those inside.

To help explain what I mean, I should take a few steps back to explain what we have been trying to do. Court records are, as a matter of course (and a matter of precedent), required to be open. However, courts act a bit like their own principalities, with different courts implementing the process for access to these records in slightly different ways. At the Cape High Court, typically you file for upliftment of the case records you want (by entering the case details in the upliftment book and completing an upliftment order sheet that you drop in a box at the General Office desk) and then, 24 hours later, go to collect the paper record, which you have to copy elsewhere before returning the file. We have lamented in detail the costs and risks of this process.

But outside of these costs, it is also worth noting how inconsistently even that cumbersome process is complied with. Another OpenUpper who went to access files at the Cape High Court avoided the ledger completely and was provided access immediately. For pre-2011 cases, I have merely gone to the back room where a Cape High Court employee has access to an (unspecified) set of digitised case files, which he places on a USB for me. Interviewing one lawyer, I received a three page breakdown of who to contact, for what, and when, in a lengthy and painfully incongruent tree map. And frequently in conversation with lawyers, I have been told about how “Wayne is my guy”, or “Talk to Fraser”, in a painfully proprietorial voice that makes me wince.

This proprietary tone gives a significant hint as to why progress in digitising and accessing court files might be slower than we hoped. And some multidisciplinary concepts help us explain it. ‘Gaming the system’ is a term used to describe the manipulation or exploitation of the rules designed to govern a given system in an attempt to gain an advantage over other users. Appropriately for us, this is also called “rules lawyering”. And game theory as a perspective asks us to focus on individual incentives in trying to predict behaviour and decision-making (although of course within an economics rubric, but the focus is nevertheless a useful one).

Let’s turn back to the Cape High Court. There is every demonstration, besides principled and high level discussions on access to justice leveled from actors such as the Office of Chief Justice and Department of Justice, that the practice of court exists as a system that works to connect the judiciary to lawyers. In spite of the fact that the public are meant to be able to access court records, the form for upliftment unapologetically specifically requires you to “name your law firm”. And so if the key actors to the system (from a systems perspective) are lawyers and court staff, what are their incentives?

In trying to unpack those incentives, it is worth highlighting how incredibly adversarial the legal system is. It is literally adversarial in the sense that our legal system is predicated on two advocates representing their parties’ case or position before an impartial person, who attempts to determine the truth and pass judgment accordingly. But it is also adversarial in principle — when I was in law school, ‘winning’ and competing were fundamental skill sets we were taught. So much so, that the papers that received the highest marks were kept in a box in the lecturers office because otherwise other students would pilfer them to take notes (and of course to reinforce the ‘specialness’ of those called into the room).

Let’s play out a fictitious scenario: say Chad needs to uplift a file required by his firm. He knows to go in at 9:10am, because Waldo will have just arrived and only likes to do backroom filing later on, so is looking for any excuse to stay front-of-office. Chad arrives, goes straight to his mate Waldo, who pulls the file immediately. Comparatively, he has potentially saved hours compared to ‘newbies’ who don’t have these connections. There is an entire complicated ecosystem, which has begun to develop on accessing files — and it is an ecosystem because it mutually serves the interests of the lawyers and the court staff who have developed a system for working. In this sense, although it is chaotic for outsiders, for insiders it works. Lawyers have gamed a system, which thrives on being convoluted. Their priority is to ‘win’ as an individual acting within this system, not change it to include the interests of other potential participants.

I have been working on issues of openness and transparency for many years, and been confronted with many theories and explanations for why it is so hard to get structures to “open up”, which extend from them all being corrupt, to a lack of political will, or to “cultures of secrecy”. But I believe there is one source of the problem far more specific to the behavioural incentives of the specific actors involved: keeping a broken system closed to external participants is not just because people “like it” that way. It is because they have a direct interest in keeping the system closed, because keeping it closed facilitates their ability to game that system.

This should make us think a little bit harder about how we approach transparency projects. If we want to place the needs of citizens front and centre in a system, we’re going to have to focus a lot more strongly on the needs of all the people acting within that system — and not just on our users. It is what makes civic tech more complicated than tech.

The views expressed in this post are those of the author and do not necessarily reflect the position of the Atlantic Fellows for Social and Economic Equity programme, the International Inequalities Institute, or the London School of Economics and Political Science.