A portion of this text first appeared in print in the Globe and Mail, November 29, 2016. This is the extended version.
Lorne Sossin is the Dean of Osgoode Hall Law School at York University. A law clerk to former chief justice Antonio Lamer of the Supreme Court of Canada and a former associate in law at Columbia Law School, he was also a litigation lawyer with Borden & Elliot (now Borden Ladner Gervais LLP).
Dean Sossin shares his perspective on the nature, direction and potential impact of legal innovation in Canada.
What are some of the primary ways that innovation is changing the practice of law today?
The great, disruptive potential of technology is coming late to our sector, but it's coming – everywhere – to reshape how we think about law, how legal services are delivered and how legal problems are solved.
This year, for example, we've seen the first entirely online statutory tribunal, which will help people solve disputes involving condominium and small claims complaints in British Columbia. It's the first edge of a large wave that will ensure we approach law the same way we do so much else in our lives – on our phone, at our convenience, with full accessibility, in whatever part of the country we live in, whatever type of problem we have.
That is the consumer experience people now expect, so there is lots of pressure to have our experience with government and the dispute resolution sector flow from that expectation.
If I were to capture it in one sentence, we are beginning to look at the justice system as designed by and for the people who use it rather than by and for just lawyers, judges and experts.
That will also change the kinds of lawyers and legal professionals that we're training, of course.
You've written in the past about social innovation in law – what are some of the ways this shift is translating into practice and outcomes?
Beyond technology, the other side of legal innovation is the way law is coming to terms with better adaptations to our humanity and to the way that we live.
Perhaps the most influential example here in Canada is looking at the legal system through the lens of Reconciliation, seeing the ways in which law has been part of the problem in our relationships with Indigenous communities, and how law can now be a driver of more collaborative and creative solutions.
The Truth and Reconciliation Commission came out of the big class-action lawsuits that were settled. It's a great standard bearer for the idea that we can do law in a way that responds to the human need to be heard, to have the fullness of one's life validated and understood. We see it in the indigenous community, in our mental health and law sector, and in family law and child welfare.
As much as technology can help us access legal services seamlessly and solve problems more quickly and efficiently, law is also responding in innovative ways to the challenge of reaching out to ensure marginalized and vulnerable people see it as empowering, protecting and supportive, not as a kind of remote force of authority in their lives. Which, for many, is certainly the way it has been in the past. While this too could involve new technologies, it might also involve knowing when someone needs a compassionate advocate more than an app.
We used to see law as a courthouse and a group of people in robes, most often white males. Now we're seeing a diverse judiciary and more diverse dispute resolution options such as mediation and negotiation and problem-solving, user-oriented dispute resolution.
How will these shifts change the nature of legal education in Canada?
Each school will do this in a different way, with its own style and approach. But we're moving away from the idea that you come to law school, learn about legal doctrines and ideas, and write papers to show you understand legal ideas and how to apply them in the context of case law. That model was itself an innovation a century ago, by adding analytic and critical thinking to a system that had been about just absorbing knowledge, but it is now giving way to a problem-solving approach.
For a problem solver, knowledge is important, but how you put law into action is equally important. There is now a lot more emphasis on experiential education, where students apply ideas in real-world situations. That may be clinical programs, externships, placements or co-ops. It might even be simulations, structured in ways that students have a real learning journey. It's all aimed at a marriage of theory and practice, seeing law as a set of ideas and putting it into action.
It is also focusing on reflection: creating a group of leaders who have the emotional intelligence to listen to and learn from their clients and the communities they serve and then ultimately to be agents of change and proponents of law reform. In other words, being not just the doers but also the thinkers – and not just the thinkers but also the doers.
This is where legal education has evolved – it is a much better way to learn and produces lawyers and leaders who will be more effective in a rapidly-changing environment because they will not be locked into a single point in time when they learned the law.
To solve real world problems in real time, students need emotional intelligence, they need to know how to collaborate, and they need legal analytical and action-oriented skills to come together in legal education as never before.
In your view, what does the future hold for today's law students?
I am very optimistic. We can't diminish the realities of anxiety and uncertainty about the fact that the industry and the ways that people are accessing legal services are changing. The career path for today's law students will not be a secure, set one in a way we might have expected a generation ago and we need to overcome financial barriers (high tuition/high debt) . My optimism, in other words, is not a Pollyanna sense that everything is sweetness and light. There are difficult issues we need to confront and we need to continue to do so in creative ways.
The flip side of that is amazing opportunities for graduates who are adaptive problem solvers, way beyond the limited roles lawyers have had traditionally. I think our graduates are much more adept at seeing that panorama. They may be entrepreneurs who create new ways to deliver legal services. We offer a course in which students are designing apps that will solve access to justice problems; they're learning in settings where community organizing is a way of helping with legal empowerment.
I'm optimistic that these kinds of graduates will re-define what we think of as the legal profession in a much more dynamic and progressive way.
What does that mean for today's law firms?
That is the next challenge: are law firms, governments and those who rely on lawyers ready for a generation with a much greater breadth of ideas and depth of experience?
The legal services sector will be a more exciting one because of this disruption and the participation of these change agents. This is a much more diverse group than we've seen before; this group of law graduates better reflects Canada and has more internationally trained lawyers; it's more inclusive and better able to adapt in an uncertain future.
At the same time, if the legal profession, the law society, the courts, et cetera, aren't open to change, these same dynamics can turn into a recipe for the best and the brightest to leave the profession.
What will the impact of these shifts be for lawyers already in practice?
Osgoode just celebrated the 20 anniversary of Osgoode Professional Development – OsgoodePD - our lifelong learning professional development program. In the mid-'90s, OsgoodePD became a trail-blazer for the idea that law school was not just where students who wanted to become lawyers obtained legal education but also where lawyers – and increasingly other professionals – could come for relevant, high quality and engaging legal education as professional development. This sphere of legal education may be a professional master's degree, or it may be a certificate in a specific area of law, or it may be conferences and programs exploring emerging and established areas in the justice . Since then, the idea that legal education is a lifelong pursuit has taken off and has been a catalyst for innovation.
Most people figure out what they want to do with their legal education after they finish their law degree. Four or five years go by, and they realize what they'd love to study and explore.
We also see legal education as something that many individuals who aren't lawyers need and want. They're HR professionals who want to understand what they need to know about labour law. Or, they work in the mental health, education, hospitals and health care or with indigenous communities, and they want to understand the legal backdrop in their field.
For the first time, the majority of people coming to Osgoode Professional Development do not have a legal degree or background. They are looking for a customized, responsive legal education. They bring rich professional insights that make us look at these legal ideas and how we put them into action in different ways, so it's transformative for the legal profession and society to have readily accessible legal education that doesn't require a law degree.
This content was produced by Randall Anthony Communications, in partnership with The Globe and Mail's advertising department. The Globe's editorial department was not involved in its creation.