11 September 2014

Missouri chief justice: Future realities present new challenges, opportunities for delivering justice solutions

Mary R. Russell, chief justice of the Supreme Court of Missouri, delivered the following address during the opening luncheon of the joint annual meeting of The Missouri Bar and the Judicial Conference of Missouri September 11, 2014, in Kansas City.

Thank you, President Shelton … my judicial colleagues … and members of the Bar … for the kind welcome.

Today is September 11 – the anniversary of a tragic day that abruptly changed our lives forever. As we live in this post-9/11 world, we continue to experience many other changes personally and professionally that also have lasting impacts. It has been said that to live … is to have changed often. And so – knowing that change is constant – we move forward, adapting to the times.

Although the fundamental role of law in society is steadfast, to better serve the public today and in the future, lawyers and judges must let go of some of the practices and traditions that we have followed for centuries. We cannot expect 19th-century courts to serve our state in the 21st century. After all, we serve the public – not ourselves.

Although we cannot control our changing society, we can control our response. In that light, there are three major societal changes that we must turn into opportunities for our profession:

• The increasing size of our aging population.
• The decreasing availability of state funding.
• The rapid changes in technology.

We know that Americans are living longer. Baby Boomers are now moving into retirement. We are experiencing lower birth rates. This all results in a significantly older population. Some social scientists call this the “Silver Tsunami,” as the hair color in our country turns more silver – except, of course, for those of us who have hairdressers with a cure for that.

We are beginning a retirement boom unprecedented in history. By the year 2030, experts predict that those who are 65 or older will constitute about 13 percent of all Americans – and about 20 percent of all Missourians. Although the population shift is concentrated on people of retirement age, it is rippling downward as well. For example, nearly half of all Missouri school districts now have fewer children starting elementary school than graduating from high school.

The large number of Baby Boomers will be paying fewer taxes while relying more on tax-supported programs such as Medicaid, Medicare and Social Security. The smaller numbers of GenXers and Millennials left in our workforce will not be able to make up the difference in tax revenues.

Meanwhile, economists predict there will be a substantial increase in budgetary expenses, as more seniors need state Medicaid help to live in nursing homes or receive care. This will result in fewer state tax dollars to operate our courts.

The courts have always promised to be open and accessible to all – in fact, the constitution requires it! – but shrinking budget resources will continue to make delivering justice more of a challenge. Beliefs that we might return to pre-recessionary levels in state funding are proving to be false. Many economists say that what we see now may be the best we can expect and will become the “new normal.”

With a larger senior population, more attorneys may need to address the increasing demands for estate planning solutions that encompass elder care issues … from establishing healthcare directives and powers of attorney to financing options for long-term care.

In addition, we can expect increases in probate cases and hearings involving mental capacity. We also need to reexamine guardianships and conservatorships to ensure they promote independence, not dependence, while watching for elder abuse, neglect and financial exploitation. To better handle these burgeoning cases, some states have already established “elder courts” to address the complicated issues that affect this growing segment of our population.

But this is not just about your clients and their cases. There will also be an increasing number of older lawyers and judges in our courtrooms. Although a third of Missouri state judges currently are eligible to retire, they are not required to do so until age 70. For lawyers, there is no mandatory retirement age. But unfortunately, not all lawyers in their 80s and older are as sharp as Grace Day and Rush Limbaugh Sr., who practiced well into their silver years.

Regardless of age, all lawyers – from solo practitioners to those in the largest firms – need effective succession planning. Although not required by ethical rules, the comments recommend succession planning as a part of our duty of diligence, and the legal ethics counsel is readily available to offer guidance.

The judiciary, too, has a plan in place. As judges retire, many opt for senior status. This helps us not only with hearing cases as the need arises, but also allowing us to benefit from their wisdom and years of experience. For new judges taking their place, we have excellent judicial education programs to help them acclimate to the bench and gain the specialized knowledge they need to succeed.

But when judges and lawyers retire, we lose a tremendous resource to mentor our next generation of legal professionals. We should encourage their involvement in mentoring programs now, to better equip those of you who will be left to mentor those yet to come.

We all need to continue our commitment to look out for one another, and to pay attention to who among us might be showing indications of incapacity. It is difficult to tell law partners or judicial colleagues that they may have an impairment issue. But it is far kinder to make sure a person who may need help receives it. We all share a duty to protect the public.

As I continue my “undercover judging,” talking to those coming to courthouses around the state, I hear over and over the frustration of litigants who are unable to obtain legal help because they cannot find an attorney they can afford.

To be sure, this is not just an issue of poverty – the lack of access to attorneys is increasing at all economic levels. I have a neighbor who can well-afford an attorney but who chose to use online forms to set up her trust. She was convinced that it was not worthwhile to spend money on an attorney, who she worried would be too expensive and too difficult to understand. Like my neighbor, many people believe lawyers have overpriced their services, and they worry about the mounting costs of what seems to them to be a long court process.

Persons seeking legal counsel face hurdles not only in cost, but also in geography. More than three-fourths of all of Missouri’s attorneys practice in just six counties, including the city of St. Louis. But just a quarter of all attorneys practice in the remaining 109 counties – where nearly 60 percent of our state’s population lives – forcing citizens to go elsewhere to find counsel, which poses additional hardships.

We need to find ways to attract lawyers to small communities and rural areas. South Dakota, for example, has tackled this problem through a recruitment program that offers attorneys financial incentives to move to underserved areas of the state.

In addition to our aging population and decreasing availability of state funding, the rapid advancement of technology has a significant effect on our lives and our work.

All of us – judges, court personnel and lawyers — need to utilize the efficiencies technology offers to help us fulfill our constitutional mandate to serve the public. Technology is the key to our survival as a legal system. In fact, I imagine some of you are using technology right now. How many of you are checking your e-mail or texting?

At least 87 percent of American adults have access to the Internet. But, in a disturbing contrast, only 30 percent of Americans have access to legal services. Even legal services corporations are forced to turn away many individuals in need of assistance, as they have sustained further funding cuts as a result of the national economic downturn.

Left on their own, unable to find a lawyer – or at least a lawyer they can afford – people create their own solutions. And guess where they go for help? The Internet! Instead of sitting across the desk from a lawyer seeking answers to their legal problems, people are more apt to sit in the comfort of their own homes, looking for solutions on their smart phones or tablets or laptops – much as they turn to sites like WebMD to research their medical issues.

This is just one sign that we now live in a “DIY world” in which the public expects immediate, low-cost results. And television ads brag that everything we need – to start a business, end a marriage, create a will, establish a power of attorney, or handle any number of other legal issues – is available online.

Harvard professor Clayton Christensen, considered one of the most influential business thinkers in the world, describes this as “disruptive innovation,” when a product or service takes root initially in simple applications at the bottom of a market and then relentlessly moves up the market, eventually disrupting established competitors.

One might think of LegalZoom as an example of a “disruptive innovator.” Many of you may have seen or heard its advertisements. While companies like LegalZoom promise to “put the law on your side,” we know that frequently a one-size-fits-all approach does not actually fit. Although LegalZoom has faced lawsuits in eight states for the unauthorized practice of law, it has prevailed in many, including a recent one in South Carolina. In Missouri, a case against LegalZoom was settled several years ago, with the company agreeing to changes in its business practices here.

We need to protect the public from companies not owned by lawyers that provide misinformation and inaccurate forms. They create the false impression that an attorney is not needed or does not add value. And, most importantly, these companies put the public – and their families and their businesses – at potential risk.

We need to turn Professor Christensen’s idea of “disruptive innovation” into “constructive innovation” by utilizing technology to help the many who cannot find affordable legal services. Improving access to justice demands solutions across all aspects of the Bar and the judiciary. Together, we must continue to seek ways to help individuals find accurate legal solutions. The Bar’s new website – MissouriLawyersHelp.org – is a start.

What might be next? British futurist, Professor Richard Susskind, suggests in his recent book, “Tomorrow’s Lawyers,” that clients will see themselves more as “consumers,” using price comparison and online rating systems to shop for the “best buy” in routine or repetitive legal work, much as they do for televisions and washing machines.

With the proliferation of shopping-comparison sites for products and services – think Angie’s List, Craig’s List and eBay – consumers will use the Internet to help them find the “best buy” in legal services, too. And, with sites like Yelp and TripAdvisor that provide mechanisms for public feedback of restaurants and hotels – clients will rate lawyers and law firms online as well.

Some of us may be less excited about adopting technology, but most judges I know are moving away from tools steeped in tradition. More judges are embracing “e-bench” technology and the electronic presentation of evidence in their courtrooms. It has been said: Change is hard, but stagnation is fatal.

But not all of us appreciate everything technology offers. The replacement of paper files with iPads has impacted me personally – in both good ways and bad. Because I no longer carry heavy stacks of briefs, I am now forced to lift weights to keep my arm muscles! But I am especially fond of letting go of paper with small print in favor of big screens and changing font sizes. It helps me avoid reading glasses for just a little while longer.

Case.net has forever altered communication between attorneys and their clients. Likewise, electronic filing enables us to have court documents with us anywhere in the world with an Internet connection. And your time stamps reveal that you are filing at all hours of the day and night!

We hope to have e-filing statewide by the end of 2016. Yes, there are still some kinks to be worked out. But because we are building this system entirely in-house, our state courts administrator’s staff is working with lawyers and judges around the state to make this technology work as smoothly as possible for everyone concerned. Please let them know if you have ideas for improvement.

Although technology requires substantial, ongoing budgetary commitments, its adoption is saving courts and lawyers both time and money. Electronic filing is already producing time saved for clerks preparing files for court … as well as substantial reductions in postage, copying, paper and storage expenses for both law firms and courthouses.

Videoconferencing also changes the way we all do business. More courts should expand the use of videoconferencing in pretrial matters and certain other hearings to save money and time. And perhaps more lawyers can expand the reach of their practices by using videoconferencing to “meet” with clients who live too far away to sit face-to-face across a desk.

Living in an information culture changes people’s view of the world. Because the public is able to pay for so many items online, they also expect to be able to pay court fines and costs online, too. So we are now piloting our newest feature, “Pay by Web,” an online payment portal available through Case.net. We will consider whether to roll it out to other courts later this year. You can learn more about “Pay by Web” at our Missouri Courts booth in the exhibition area.

In addition, in Greene County, people can now stop by a local grocery store and use a kiosk to make court payments. With your help, we can find more ways that technology can be used across all aspects of the Bar and judiciary for the benefit of all.

We have accomplished much, but we cannot stop. Progress requires vision, and an ever-reaching focus into the future. We need not be afraid of what the future will bring, for we can – and, I think, we will – change how we plan for the future.

The advances I have discussed today will someday sound as antiquated as the once-revolutionary ideas of portable bag phones and computers weighing less than one ton. But it is critical that we continue to seek solutions that can be created and implemented by us, rather than imposed on us, and that preserve the values of equal access, equal justice, and equal protection that give our legal system meaning. We must engage now in discussions about the future and not wait until these issues reach crisis proportions. We must be willing to experiment, fail and learn as we continue to move forward.

To that end, I am pleased to announce The Missouri Bar just yesterday accepted the Supreme Court of Missouri’s invitation to create a Joint Task Force on the Future of the Profession. This will provide a mechanism for lawyers and judges to turn the challenges ahead into opportunities to better serve the public and continue to deliver fair and timely court services in an environment that may be unparalleled in recent history. By thinking outside the box and working in concert, members of the bench and Bar will identify solutions to the challenges I have discussed today, as well as other important issues we face. Together, we can be what Missourian Walt Disney described as “Imagineers.”

In closing, we are in challenging times – with more questions than answers – facing an aging population, decreasing availability of state funding, and rapidly changing technology. But we have prevailed over challenges in the past, and I am confident – with the leadership of the new task force and the imagination of all of you – we will meet the challenges ahead and become a national leader in delivering justice, as we make Missouri’s courts better for everyone.

Thank you.