Amici Curiae: Vexatious Litigants, Robo-Lawyering, and the Philippines Cybercrime Prevention Act

Vexatious Litigants and Access to Justice

Access to justice is a concept that is bandied around law school classrooms. The central issue is that exorbitant lawyer fees and court costs make it prohibitively expensive for lower to middle class clients to pursue their claims in court. This is one of the main criticisms of our justice system: litigating disputes is largely reserved for the wealthy.

Most law students are able to agree on this issue – court costs and lawyer’s fees are expensive. However, what is seldom debated is the opposite viewpoint: is access to justice an issue at all? Do expensive fees and court costs exist solely to deter vexatious litigation to alleviate an already over-burdened justice system? Would making legal services and court costs free actually increase access to justice, or would the system become so bogged down in frivolous lawsuits that important claims would become unreasonably delayed?

The 176-page decision in Meads v. Meads, 2012 ABQB 571 holds that vexatious litigation and pseudo-legal arguments have practically become a cottage industry – complete with “gurus” selling litigants information on how to subvert the legal process.

On March 28, 2011, after Mr. and Mrs. Meads separated, Justice Veit ordered interim monthly child and spousal support payments from Mr. Meads. Shortly thereafter, Associate Chief Justice J.D. Rooke was appointed Case Management Justice on the file because Mr. Meads had not disclosed the necessary financial records to calculate his interim child and spousal support payments and Ms. Mead’s lawyer was “experiencing problems in moving [the] litigation forward as a consequence of unorthodox documentation from Mr. Meads.”

The “unorthodox documentation” from Mr. Meads consisted of labeling himself with two identities – Dennis Meads, the “corporate identity” created by the government, and Dennis Larry Meads, a “flesh and blood man.” Presenting himself as the “flesh and blood” identity, Mr. Meads then went on to argue that the Alberta court only has jurisdiction on water, not on land, that he is only subject to “God’s Law” and not man-made or statute law, and instructed that Justice Rooke pay Mr. Meads’ child and spousal support obligations out of a secret bank account.

Despite the outlandish arguments put forward by Mr. Meads, this type of conduct has been increasing in Canadian courts. Justice Rooke’s judgment classifies these types of individuals as Organized Pseudolegal Commercial Argument (OPCA) litigants and explores the history of different OPCA gurus and their “legal” strategies. The judgment suggests that OPCA litigation should be disposed of in a manner that “minimizes misuse and waste of court and state resources” and sends a “clear message that these schemes do not work.”

Vexatious litigation will always slip through the cracks of the justice system, whether access is restricted or unlimited. What may be the real issue, and what this judgment touches on, is the fact that perhaps it is not excessive court fees or lawyers’ costs that are the problem – it is that litigants have not been properly educated on how the courts work and will continue to pursue fruitless litigation when there may be better (and cheaper) options available.  Moving the access to justice discussion beyond legal costs may be more revealing of what the flaws of the justice system really are.

Start-up company looks to automate the legal profession

Imagine going into a law class – any law class – and exiting the first day with a perfect summary of the entire course. How about being a first year associate and rather than spending hours reading through a 155-page contract to determine the important clauses and legal issues, your work was done for you in a matter of minutes? It may sound like science fiction, but this is the type of technology eBrevia is looking to sell to law firms and legal departments.

The start-up company consists of two lawyers and a software engineer. Their technology is explained in a vague fashion on their website (essentially: add a legal document to eBrevia and it magically transforms into extracted legal provisions and summaries). However, the start-up has since received considerable attention, and was selected to present at the DEMO Fall 2012 conference in Silicon Valley.

Understandably, many are skeptical about the technology. Legal documents are complex and employ subtle language choices that often have important legal implications. Relying on a program to sift through and analyze the information seems fantastical at best. The company claims that the more examples the program sees, the more it understands the nuances of legal phrases, becoming “smarter” and presumably more accurate as a result of doing so.

The implications of instituting this type of technology in law firms are plentiful. If the program “learns” from analyzing different types of contracts (presumably from different clients) would a conflict of interest problem arise? What about confidentiality issues if thousands of contracts are stored in eBrevia’s server farm? And probably the most important question of all (especially to law students) what happens to the legal profession if tasks become automated?

It is an exciting idea for a new technology, but many questions have yet to be considered and answered before the technology could be implemented at all.

Cybercrime law incites protest

On October 3^rd, 2012 the Philippines implemented the Cybercrime Prevention Act of 2012 which aims to address legal issues concerning online crimes such as identity theft, child pornography, and illegal access to data. The Act also characterizes libel as a cybercrime at section 4(c)(4) – including penalties of up to twelve years in jail or a maximum fine of one million pesos (about $24,000 Canadian). This is in sharp contrast to Article 355 of the Revised Penal Code which has a maximum fine of 6,000 pesos for libel ($140 Canadian). The implementation of the Act has created widespread protests online and at the Supreme Court for the unconstitutionality of the provision infringing their right to free speech.

The problem with the Act is that it is unnecessarily vague.  It is difficult to understand when and where an offence occurs. If an individual posts a libelous Facebook status and another person “likes” it, will that person be considered to be “aiding and abetting” a cybercrime under section 5(a)? What about re-tweeting a status or linking to a blog? Critics claim that the vagueness of the Act allows the government to stifle their opponents and censor online discourse.

The Supreme Court has agreed to listen to the petitions regarding the Act next week, though it remains to be seen what effect these talks will have.