Former Chief Justice Bridget McCormack Gives Her Thoughts on Access to Justice, Alternative Dispute Resolution, and Generative AI’s Legal Future
Access to justice is one of the most existential threats facing the American legal system today. For far too many citizens, it’s unaffordable, uncooperative, and unforgiving.
And yet, it’s also unavoidable. According to the National Center for State Courts, more than 70% of low-income households experience at least one civil legal problem per year, and 25% of those households experience six or more.
For former chief justice of the Michigan Supreme Court Bridget McCormack, it’s statistics like these that have pushed her towards a career advocating for a system that is truly equitable and fair.
With a new era of technology already playing a prominent role in the legal industry, the opportunity for real, lasting transformation is here. Generative AI can help usher in foundational change to a legal system that’s desperately in need through affordable, easy-to-use tools that are responsibly implemented.
With this potential on the horizon, Judge McCormack spoke with Everlaw about her passion for greater access to justice, the role of generative AI in ensuring that access, and more.
You've had an interesting journey in the legal system, starting as a public defender, teaching on the faculties of Yale and Michigan Law School, serving as chief justice of the Michigan Supreme Court, and now as President and CEO of the American Arbitration Association’s International Centre for Dispute Resolution. I was curious if you could start out by giving your perspective on the overall legal system, having taken that unique journey, and what you've seen along the way that's shown you how crucial the issue of access to justice is in this country.
I've had a very lucky and rewarding career. It feels like it has four chapters. The public defender's office is a great place to start your legal practice because you're in the courthouse every day. I started in Manhattan, where I am again now. Seeing people trying to navigate justice problems in our state courthouses is something I wish everybody could see. Not just every lawyer, but every person. There are a lot of lawyers who never make their way to court. And then there are policymakers and business leaders. I wish everybody understood how difficult it is for a lot of people to navigate justice problems in America.
And then, as an academic, I ran a lot of clinical programs, and I had the good fortune to be able to point the resources of great institutions toward justice problems. I created several clinics while I was at Michigan that were focused on places where the legal services market fell short, and that was great because it allowed me to dig deep on some of those particular gaps.
As the chief justice of the Michigan Supreme Court, we were charged with administering all the courts of the state. In Michigan, there are 242 trial courts, almost 1,000 judicial officers, and they adjudicate between 3 and 4 million cases a year. And like everywhere else, a lot of those cases, most of the civil docket, are navigated by people who can't afford lawyers.
"It seemed to us that there were probably a lot of people serving sentences who were wrongfully convicted, but their cases were never going to get the attention of any of the innocence projects around the country because there was no blood evidence or other biological evidence that could lead to their exoneration."
The Michigan Supreme Court, in partnership with the state bar and some other organizations, did an awful lot to try and address the access to justice failures of the legal system. We championed innovation, technology, and figured out new ways to address problems that we can’t lawyer our way out of. Despite increasing the number of lawyers in the last 50 years, we have not increased the level of service to the people who have civil justice problems.
In my work now with the American Arbitration Association (AAA), I feel like I'm in chapter four. The AAA is a nonprofit in the alternative dispute resolution space, and it's an exciting time to be thinking about the ways in which alternative dispute resolution can support our public dispute resolution systems.
You mentioned some of the legal clinics you helped found, and the gaps that they fill. I was wondering if you could go a little more in-depth on that, and discuss what sorts of gaps these clinics help with, and what the impact of filling those gaps has on underserved communities.
I'll give you a couple of examples.
I helped found the Pediatric Advocacy Clinic while at Michigan, which is a medical legal partnership where the law students, under the supervision of lawyers, work in conjunction with pediatric clinics in the local area, and when a patient's health problems are largely informed by background legal problems.
For example, if you have a child with asthma who's living in a public housing unit that's infested with mold, the pediatrician can treat the asthma, but if the mold isn't treated, the asthma's not going to get better. There are lots of these types of opportunities for lawyers and doctors, who normally don't work together, to collaborate for better health outcomes. It's not how lawyers typically think of themselves, but it's a fantastic model that’s now being utilized in other places across the country.
Another example is the Michigan Innocence Clinic, which we founded in 2008 as the first exclusively non-DNA innocence clinic in the country. We had learned a lot from DNA exonerations about the kinds of things that go wrong to cause wrongful convictions. And while it was very clear that those things go wrong in cases where there is biological evidence, it was also evident that things go wrong in cases where there is no biological evidence.
It seemed to us that there were probably a lot of people serving sentences who were wrongfully convicted, but their cases were never going to get the attention of any of the innocence projects around the country because there was no blood evidence or other biological evidence that could lead to their exoneration. It also occurred to us that those were going to be hard cases, where you needed law students who were going to come to the table with new ideas, and not jaded lawyers who thought nothing would ever work.
So we launched the Michigan Innocence Clinic, and by the time I was elected to the court 4 years later, I think we had exonerated 12 or 13 people, and now they're up to 41.
Obviously it’s significant for the people who were served by the clinic, their families, and their communities. But more than that, it's significant for a legal system to reflect on what went wrong, because although it's not what we do naturally in law, it’s certainly possible that you can learn from what went wrong and try and figure out how to make sure it doesn't go wrong in the future.
We know a little bit about the rate of wrongful convictions because there have been so many DNA exonerations, and it's estimated to be somewhere between 3% and 5%. You might think that's a low number if you thought of convictions kind of like shooting free throws, and if you only miss 3% to 5% of the time, you'd be like, "I'm doing pretty great," right?
But if you thought of it as more similar to landing planes, and you crashed 3% to 5% of the time, you wouldn't be satisfied at all. I think it's more like landing planes. Being able to understand what went wrong, and at least give the folks who were involved in that wrong the opportunity to learn from it, is a way to improve the system going forward beyond the individual people that you help.
You wrote an article for The Yale Law Journal in 2021 titled “Staying Off the Sidelines: Judges as Agents for Justice System Reform”. In it, you argued that judges are uniquely valuable contributors to reform efforts because they're exposed to the inner day-to-day workings of the justice system and its flaws. I was curious if you had any examples that you could provide of judges that you saw actively contributing to those reform efforts during their time on the bench?
I feel like it's an important point to make carefully and clearly because, like I said in the piece, judges have more of a first-person view of what isn’t going well in our communities than any other public servants.
As you know, most people who end up in court aren't there for happy occasions. Occasionally you have an adoption, but for the most part, people are there because things have kind of gone wrong, and sometimes things have gone wrong as the result of upstream policy that the policymakers don't usually have a chance to see the downstream effects of. But the judges do. So the story they can tell about what they're seeing is an important story to contribute to whatever policy might come next.
There are definitely judges who not only take that view, but act on it, and I think the Michigan Supreme Court is a great example. In 2019, the Governor appointed me to chair, together with the Lieutenant Governor, the Michigan Task Force on Jail and Pretrial Incarceration. With the help of The Pew Charitable Trust, we gathered data from Michigan's 81 county jails that we never would've been able to gather otherwise, and also court data, and were able to come up with 20 recommendations to the legislature for improving Michigan's jail and pretrial policies.
It was a bipartisan, multi-stakeholder task force, and the most diverse task force I've ever worked with. There was incredible public input. Every public hearing we had, we had people who came to testify. And at the end of the process, the legislature sent 20 bills to the governor's desk that were bipartisan, almost unanimous legislation across the board.
And now, Michigan is a leader in criminal legal system reform. We were the first state during the pandemic to set up a statewide eviction diversion program. We had a couple of successful models in individual courts because there was some judge, some single person who decided that an eviction diversion program would make a difference to his or her local community, and did that.
We were able to take those models in the pandemic, go to the legislature, which had all this CARES Act funding, and say, "Hey, we have a good idea for one place that could use some of that money." And we set up the statewide diversion program, sent every case into alternative dispute resolution, into mediation, and got landlords their money, kept people in their apartments, and positively impacted a lot of families' safety and future.
And after we did it, a number of other states copied us. One of the most effective chief justices in making a difference on the administrative side is the chief justice of Texas, Nathan Hecht. He’s a superstar in the impact he has had on access to justice in Texas and across the nation, and he's articulate about it. I don't know anybody who can get done what Nathan Hecht has gotten done.
With some of those eviction cases, what do you see as the court's role in splitting up the burden when you have under-resourced litigants going up against litigants that seemingly have all the resources in the world?
It's one of the biggest problems in the civil justice system right now. According to the National Center for State Courts, 86% of the civil legal problems of low-income Americans receive inadequate or no legal help. Eviction is one of those dockets where the tenant population, usually about 90% in most locations, are unrepresented.
Even more striking is the consumer debt collection docket, which, by the way, is basically the modal case in state courts now. Debt collection cases are killing state court dockets. There, the asymmetry is far more significant, where almost zero debtors have counsel and creditors almost always do.
It isn’t great for anyone, because the truth is if you don't have a lawyer, you're often just not even going to bother showing up. A lot of those cases are resolved by default judgments, which doesn't actually even help the creditor or the landlord in either case. Usually, the landlord wants her money, and so does the creditor. Getting a default judgment doesn't actually advance the social goals of the dispute resolution process. This asymmetry and representation is contributing to it, and it's another reason why we have to rethink how we approach justice problems.
Before we move on to other topics, I was wondering if you could sum up why access to justice has become such a big issue for you? What has drawn you to it?
A lot of people are worried about democracy, and I think there are lots of reasons to be. I worry about democracy's future when the public loses confidence in the courts, in the dispute resolution system and the way in which we resolve our disputes without resorting to violence or whatever would come next.
The only currency courts have is the public's confidence in them. They don't have an army to enforce what they do. They don't print money. And if the public loses confidence, the rule of law gets wobbly.
So, it's hard for me to imagine a more important emergency facing our country than 90% of our neighbors not being able to get any help with the justice problems they face year to year.
I think a healthy, happy future depends on a robust rule of law, and a robust rule of law depends on a highly functioning dispute resolution system, in the public sector, the private sector, and everything in between.
You already kind of touched on this with your court adopting new technology during the pandemic, and becoming one of the leaders in making the switch to the virtual courtroom. And while those technologies like Zoom were still emerging just a few years ago, they're now a lot more commonplace. So, switching gears into the generative AI space, what do you see as the role of generative AI in the court system and its effects on the administration of justice going forward?
It's a million-dollar question. I think anybody who thinks they know what the future of generative AI is going to be is fooling themselves. I think it's undeniably going to be the biggest disruption to the business of law, the practice of law, and the way we resolve legal disputes that we've seen in our lifetimes.
"If the technology can in fact advance making legal information available to everybody, so that without having to go to law school you could understand what the law requires of you and what it provides, that would surely be a big boost to the rule of law."
The question is whether there will be courts that lead. There'll be some that will, but courts are going to have a difficult time for a lot of reasons. For example, courts have public funding. It's hard to hire the IT competencies you need on a public funding budget.
In my current role, with the AAA, we have a large caseload, and we have cases all over the world. We have a really talented IT team, and we have resources that allow us to hire the competencies we need to build the products and services that generative AI is going to let us build for our users. That's hard for courts to do.
And at the same time, courts also have politics and elections. There are a lot of things that make change management in public dispute resolution really complicated. My guess is that this is one of these moments where the technology is either going to run through the people who are resisting or go around them.
I think that even if courts try and ban lawyers from using generative AI, they won’t be able to ban self-represented litigants from using it. And when the Gen Z legal TikTokers start explaining what the prompts are to ask GPT-4 to create your own response to your eviction notice, I don't think the courts can stop that. Okay, there are no legal TikTok influencers, I know that, but there could be.
I think that this is one of those cases where the technology will overcome the resistors. So, it's coming for us.
How do you think the public defenders or the pro bono attorneys should be thinking about generative AI and using it in their legal work?
It allows you to do a whole lot more than you could do yesterday. And that's not to say that there aren't still improvements that the models need, and I think we're going to see those rapidly, but it allows you to do a whole lot more. I think for pro bono legal projects, firms, single lawyers, they're going to be able to represent a lot more people because they're going to provide more services.
But even so, I don't think that's where the sweet spot is. I think the sweet spot will be when the technology provides tools for people who are never going to get connected with a lawyer.
If the technology can in fact advance making legal information available to everybody, so that without having to go to law school you could understand what the law requires of you and what it provides, that would surely be a big boost to the rule of law.
I also wanted to touch on the recent proposed rule change by the Fifth Circuit requiring the disclosure of generative AI used in drafting documents. Where do you fall regarding these standing rules requiring the disclosure of generative AI? And moving forward, if more courts follow suit, do you think it could hinder the growth of the technology, or do you think it could possibly lead to more responsible use of it?
With all due respect to my friends on the Fifth Circuit, I don't understand what the purpose of the draft rule is. Lawyers are already bound by a set of ethics rules that requires them to make sure any information they submit to a court is vetted and accurate, and not to take any licenses with confidential information. I don't know why the current ethics rules don't already govern this new technology.
And by the way, there's generative AI that's going to be built into all of your enterprise tools in 10 minutes. So, your Microsoft Office suite is going to have generative AI built into it. If you're using Grammarly, I think you're violating that draft order. I mean, what are we doing?
I'm afraid it makes courts look like they don't really understand the technology and the way it's already in most of what we do. I care about the public's confidence in courts. I really think courts are important. And one of the ways you grow public confidence is by making sure the public understands that you know what's happening in the world.
What's something you wish judges or attorneys who are part of this next generation that’s going to be dealing with generative AI every single day can do to best educate themselves on its impact?
I do a lot of presentations to judges on this topic, and everybody wants to know this. And, of course, this is a weird technology, because it didn't come with any user manual, right? You can't go and read how to use it best or how to get the most out of it. And I think it actually takes a lot of practice to figure out what it's good at.
It’s what scholars sometimes call the jagged frontier of generative AI. It's good at some things that you wouldn't expect, and not good at some things that you would expect. And the only way you figure out what those things are is by doing it.
So you have to put the time in with the tools. I tell people to start using it every day. That's what I do. I use it every day, and I use a couple of different models because some of them are better at some things and others are better at other things. Start learning the models that are built primarily for legal professionals. See what might make your operations and your services and products better, faster, and smarter.
"I don't think there's a more critical time for a nonprofit in the dispute resolution space than right now because of this wave of both a massive market failure in the civil justice system, and this very disruptive technology. It makes being a nonprofit with a mission of supporting the public dispute resolution system a pretty exciting place to be."
I also think you have to do a little bit of homework and listening. For example, listen to the Hard Fork podcast every Friday, and you will basically be up-to-date on what's happening and what the latest is in the world of technology.
Follow some of the scholars who are writing for “normal people” audiences, like Ethan Mollick at Wharton. Ethan Mollick's Substack is a great way to follow what's happening in this marketplace.
Use the technology, and do a little bit of homework every week to try and keep up before the wave just takes over.
You mentioned you use generative AI yourself. How do you use it in your current job? What role do you see it playing in something like the alternative dispute resolution that you currently focus on?
Not only do I use it all the time, but so does my entire team. Last spring, we got GPT-4 licenses for a group of our staff, and had them start safely using it. We then tracked use cases, uploaded them, met regularly, and took the best ideas and put them in our innovation pipeline so we could vet them and move them forward.
We did the same thing with a group of our arbitrators and mediators. We got them another AI product, and they've been doing the same thing, using them, uploading use cases, and they've now drafted a paper.
We're taking this opportunity to learn what we can about the technology on more bite-sized tools so that we're prepared for what might come next. The AAA is the largest provider of alternative dispute resolution services in the world. We have a lot of data that we've hoarded, and we’ve never leveraged it, never shared it, and never licensed it.
We have some pretty exciting things we could build, and we can’t waste any time learning how to build them.
Going more into your current role, I'm interested in what inspired you to pursue this type of work with the AAA, and what you're currently most excited about?
The AAA is the largest provider of private dispute resolution services in the legal space. It was founded 97 years ago, with the purpose of taking pressure off the courts, and offering other options for disputes to get resolved.
Originally, arbitration was largely a B2B process, and over the last 97 years that's changed significantly. Now, lots of people use alternative dispute resolution to resolve all kinds of disputes. And not only arbitration, but mediation, conciliation, and all kinds of upstream ways to resolve disputes before they're fully public, and costly.
I don't think there's a more critical time for a nonprofit in the dispute resolution space than right now because of this wave of both a massive market failure in the civil justice system, and this very disruptive technology. It makes being a nonprofit with a mission of supporting the public dispute resolution system a pretty exciting place to be.
All of my team is rowing in the same direction. There's no politics. Nobody's writing a dissent if we think we have to do Zoom hearings, and it's fun to be working with a team that's on fire focused on the future.
A Changing System
With over 30 years of legal experience under her belt, Judge McCormack has seen the courtroom from the inside out, and is determined to continue the fight for change. When that sort of vision is paired with a transformative technology like generative AI, the possibilities to grow access to justice are endless.
Whether it’s under-resourced litigants crafting legal strategies, pro bono attorneys building statements of facts, or legal clinics saving money by cutting down on document review times, generative AI offers promise to those 70% of low-income households who will experience at least one civil legal problem this year, and to everyone else who need a system that works for them.
Everlaw is committed to increasing access to justice and supporting the work of all those whose mission is promoting justice while illuminating the truth. If you’re interested in learning more, find information about the Everlaw for Good program here.
