Future of Courts Panel talk 14 May 2024

I was invited by Professor Dame Genn to be a panel member at The Future of Courts: Expert Panel and Discussion at University College London on 14 May 2024.

The premise of my talk was that no matter what work is done, we need to work on the system that does the work—in this case, middle management.

Full context: I’m infuriated by the public sector and deeply in love with what it does and why it exists. I believe we should socialise more problems, not less. I’m also a fan of avoiding a cheems mindset - I’m an optimist.

I know that strides have been made in the years since I worked in the Ministry of Justice. Where technology skills and norms were previously lacking, they are now present. I’m happy about the improvements, and sad and angry at their speed of change in the last 5 years. I’m pleased with how things have moved on and sad that the technology incumbents of 10 years ago are still the technology incumbents. Having contradictory views makes me human.

But from afar, after almost 10 years, three things remain true. The £1.3bn courts transformation programme budget is mostly spent. The incumbent suppliers are the same. And the size and power of the technology and user-centred design (UCD) community remain - broadly - the same.

We must move away from what Dave Rogers, the previous Ministry of Justice Chief Technology Officer, referred to as Toxic Technology—a calcified set of technologies and behaviours that slow meaningful progress. If past behaviour is the best predictor of future behaviour, it is worth reflecting on that and designing new habits.

Lastly, this is also a political and economic problem. The design industry talks of designing a chair in a room, and HM Court & Tribunal Services’ activities similarly sit inside a matryoshka doll of other activities and contexts. I’m keenly aware that our GDP growth, an austerity budgetary model and an imminent general election make things difficult.

So we need to design within existing constraints at the same time as we design to change those constraints. It’s not one or the other, it’s both: power, vision and pragmatism is a continuous tussle, and intelligence is holding multiple positions in your head at the same time.

Being hopeful and driven is in short supply. So I want to supply it. I hope my recommendations do that.

This was what I said on the panel:

Future of Courts Panel talk 14 May 2024

Hi everyone, it’s a privilege to be here, and I appreciate Dame Professor Genn for organising this and extending the invite to me.

I have a long career making tricky technology projects happen. Normally when various disciplines need to work together in new ways. I now run a design and technology studio called FF Studio, which does that.

I was a member of the senior leadership for MoJ Digital a few years ago during the first wave of digital transformation projects.

I’d like to talk about middle management. It is where the work starts, ends, grows, succeeds or fails.

I will tell you 3 quick stories to illustrate this, and make 3 recommendations…

1st story. In 2014 I was the project lead for a very early digital project with Civil Claims.

We aimed to make a property claim understandable to litigants in person and allow them to do it online.

When doing this, everyone’s response to almost everything was that’s not legal”. In the world of middle management - that kind of response is a showstopper.

To navigate that, I would hang around the Royal Court of Justice during the Civil Procedure Rule Committee. Judicially influential people didn’t have enough time dedicated to this project and the nature of the work means you need 5 minutes here, 5 minutes there.

Me doing this gave us enough time to discuss things in detail with someone with enough legal authority. This gave me the confidence to respond to people with, Yes, it is legal.” I had to have the technical skills, tenacity, and self-confidence to do that repeatedly.

2nd story. I was a keyholder on the Criminal Justice Exchange project in 2015.

That role meant I attended a fortnightly critique of the project and was a voice in its governance: I needed to report whether it was going well or poorly. One quarter, the project lead put together a report for the oversight board. I labelled it amber. But I was immediately inundated with calls to change my mind, as it would draw attention to the project.

Sometimes I would deputise for my boss and attend the court transformation programme board. The power relationships and lines of communication between senior and middle management often meant that it was safer to say that everything was proceeding well, even if it wasn’t. I knew what was being presented there was theatre, but to say so would have been career limiting heresy.

There is a joke in project management circles about watermelon projects which look green on the outside, but are red in the middle. Large institutions have a history of running them because senior individuals aren’t close enough to the details and lack the technical literacy to know what questions to ask and see when the whole truth isn’t being communicated.

3. Last story. In 2015, I was the accountable lead for the first project to move into delivery on the court reform programme. Fee Remission.

Starting a project requires documentation, but documenting the project also flattened nuances, codified false confidence, and heightened expectations. For cultural reasons, the wider environment was deeply averse to we don’t know yet” as a documented answer in a plan. This is where organisational norms diverge from practical reality.

To avoid writing we don’t know yet”, we secretly started the project 8-12 weeks before we were officially allowed to. We had to prototype in areas we lacked confidence or didn’t know the answer.

In the wider technology industry, this approach is test and learn. But really, it is failure and learning. But being allowed to fail takes trust and power. Converting a vision into practice takes trust and power. I realise this has ultimately been my professional obsession.

That’s 3 stories.

The environment in which middle management work is done is deeply hierarchical. Power rolls downhill, so you must ensure that a trusting environment between the doers and the power base is built early.

To that end, I have 3 recommendations.

1. Hire people who speak truth to power no matter how uncomfortable that will undoubtedly feel for all involved.

The power comes from the Minister or the Master of the Rolls. The individuals responsible need to manifest that power, and they need to be technically literate.

Getting the right people in is hard enough. Procurement and hiring are flawed processes in government, so I would focus there.

In my experience, once you have the right people, building this system of trust takes way more time, effort, and emotional energy than anyone expects.

2. Orchestrate the outcomes you want by understanding and using incentives.

Organisations and markets are islands of people with their own biases and personal incentives. Incentives drive behaviour and outcomes. Ask everyone involved, What is your business model?” and very consciously align people, or place them in creative tension.

On a human level, I’m pretty certain I could achieve what I did because my skill set was not wholly reliant on conforming to civil service norms. I knew I could get a job and pay my bills based on my skills, not the social environment I was operating in.

I was in the role at a systemic level for well-orchestrated reasons too.

Major systems integrators and technology providers have essentially captured the public sector. With all the connotations that capture involves. I was explicitly in a role to try to stop that from happening. To generate a creative tension that drove quality.

This was very helpful, given that major sections of the civil justice system are built and run by some of the world’s largest IT and business consulting firms.

3. Avoid false confidence by prototyping as you go.

False confidence is an inherent and unavoidable human trait—so much so that it is part of the public sector green book on financial modelling. It is referred to as optimism bias. Know you have an optimism bias and incorporate it into your plan.

You never have perfect information so do not model your processes around having it. Don’t accept the myth that if you just think harder, design in more detail and document more brilliantly you can manage this risk up front. Nor should you simply outsource that risk at a cost. The practice never matches the theory.

Instead, accept that there is inherent uncertainty and risk, always. Explore and prototype to learn more about your largest uncertainties and risks.

  • Which privileged litigants get to be early adopters, who can afford the costs of this new practices and what does meaningful consent look like?
  • What legal firms are interested in doing this, will they conform to common data standards and what are the risks to them in not doing so?
  • Which courts will trial this new practice first, what signals indicate wider roll out is worth the costs?

Plan, prototype, measure results, repeat. Because confidence and certainty can be built one prototype at a time.

In conclusion, the vision is a good one. But as I said to Professor Dame Genn when we spoke about this, we are not short on theories; we are short on practices.

My recommendations may seem obvious, or maybe even parochial. And frankly, they are. However, when taken together, they build and compound.

Eliot Fineberg

May 24, 2024