I can’t find a statistic to back this up, but I doubt many would quibble with the assertion that legal outcomes (i.e., whether we in fact win or lose) impact our opinion of the quality, competence and fairness of the preceding tribunal.  Put another way, “sour grapes” – or our visceral sense of post-tribunal bitterness – is largely a product of outcome, irrespective of process.

Think back to the controversial instant replay reviews during last month’s Super Bowl win by the Philadelphia Eagles over the New England Patriots. How many jubilant Eagles fans could objectively assess the “fairness” of Zach Ertz’s game-winning touchdown review? How many Bostonians do you think questioned whether due process had been adequately afforded by the NFL?

It’s only human nature that Tom Brady would be eating sour grapes.

We pay close attention to this at FairClaims, the ADR enterprise software platform I founded in part to restore faith in small claims disputes.  We do our best to make the tribunal process as fair as possible, but inevitably find user satisfaction is more closely correlated with whether someone wins or loses than any other factor.

This makes our job – and the larger job of the Firth Amendment protecting due process – very difficult. We want all people to get a fair shake, but its impossible for people to always win.

Even if you’re Tom Brady.

So, how do we go about solving the so-called “sour grapes problem” in our modern legal system?  Here are a few proposed solutions to start.

1. Survey for User Satisfaction After Trial, But Before the Verdict.

Conducting user satisfaction surveys after trial, but prior to the verdict, can provide a better measure of due process satisfaction.

We did this at FairClaims and saw interesting results. Whereas we used to see a lot of 10/10s (winning party) and 1/10s (losing party) when we surveyed users post-outcome, we now see many users who do not respond as they’re holding out for the final decision. Still, of those who respond prior to any award, a higher percent provide a more pristine sense of overall satisfaction with the tribunal process.  Even if it comes with a “we’ll see how the decision goes” disclaimer.

The key is ensuring enough participation to capture feedback from a requisite cross-section. Rather than a random periodic Gallup poll, perhaps courts should use SurveyMonkey or exit polls to get snapshot impressions in real time?  We could do this today.  It might promote a conversation that challenges our perception of legal outcomes and begins to restore our faith in courts.

2. Close the Legal Knowledge Gap.

Easier said than done.  But, what if we taught basic law in primary and secondary school, or increased access to legal knowledge through technology and social media?  In speaking with our users I can tell you the current legal knowledge gap is responsible for much of the distrust plaguing our court system.

A common example we see at FairClaims are little known laws surrounding “diminution of value.”  This hits close to home for me. When I last had roommates a decade ago, we pooled money to buy a $2,000 flat screen TV, but later applied depreciation principles when one of our roommates kept the TV and bought it back from the others. It was totally by the book, yet I still tasted sour grapes.  I had to buy a brand new TV for much more than he paid us for the one we bought just 14 months prior.  He got full satisfaction and use of the TV we left behind.

This is very common in insurance disputes and a big reason why insurance customers push back on claims payouts. I understand both sides. On one hand, the law cannot easily ascertain property value and capitalism suggests fair market value is the most efficient way. On the other hand, if I total a car I bought for $30,000 and get just $19,500 for it a year later, then I’m eating sour grapes.

Technology can help us better process legal outcomes through the lens of both the law and basic fairness. We’re already moving in this direction thanks to Nolo, LegalZoom Prepaid Legal and Avvo Ask-A-Lawyer.  Other pioneering companies like LegalRobot, Legal.io and Casetext are also helping to close the legal-knowledge gap.

3. Use Technology to Democratize and Influence Judicial Decision Making.

As a former practicing attorney, I often had no choice but to let my clients down. It usually went like this: “I know, I know… unfortunately the law isn’t always fair in every case…. and anyone can sue anyone… and yes, you need to respond no matter what.”

Those conversations weren’t fun. I played the role of counselor and negotiator with my own clients as much as I did with opposing counsel. I also had to charge hefty fees to fight disputes for which my clients had zero or limited liability. I had to explain to them why the law still required them to answer discovery, despite my fees and the questionable validity of the claims against them.

“Unfortunately, the law doesn’t always feel fair,” I found myself saying.

Which begs the question – is the law fair? Further, how can (and should we even allow?) technology to help increase fairness at trial?

Here’s a thought: what if we “crowdsourced” judicial opinions?  What if judges used aggregated, crowdsourced data as an actual input to decision making versus precedent and statute alone?  The law, after all, is a set of rules designed to protect democracy.  We too rarely include the “person on the street” perspective when it comes to legal design.

Here is a real world example from my homebase of downtown LA. We had a highly unreasonable jaywalking law that cost fast-moving pedestrians $250 every time they were caught in a crosswalk during the countdown. This made especially little sense for a growing metropolis encouraging more foot traffic. The State finally stepped in to pass a more reasonable law, but only once a local Assemblymember took his colleagues to the scene of the crime. They tried crossing before the lights turned red and were not able to do so.

Our fairness crowdsourced data could also include VR, so judges might actually “experience” the real world impact of their decisions. We’d love to see someone invent that!

4. Create Platforms That Promote and Encourage Early Settlements.

Life is too short for anyone to get any more bogged down than necessary.  But, tell that to anyone who has ever been party to a litigation in our modern court system.

The insane stress brought on by protracted litigation, multiplied by the legal knowledge-gap (see point 2 above), is a main reason people settle even when they are in the right.  More so than any other key drivers, such as unpredictability, time and legal fees.

That said – if and when we can help it – I say we settle early and often and use technology platforms to do so. We can bring more parties to the table pre-litigation if we develop the right tools. I believe getting out in front of litigation and empowering parties earlier in the process will increase our notions of fairness. I further hope we can change settlement culture, making it more acceptable to settle more cases sooner, especially among non-lawyers.

In any case, and however our legal system evolves, I propose a humble overarching objective – that both parties walk away saying “win or lose, the process was fair.”

That way, we don’t all end up eating sour grapes!

Stephen Kane is Founder + CEO of FairClaims, an online dispute resolution platform, and a Stanford CodeX Center for Legal Informatics fellow . He was formerly at O’Melveny & Myers, in house at a large communications company, a small business attorney, and part of the early team at Lex Machina. Stephen is also a founder and Chairs the Board of GRID110, a 501c3 working in partnership with the LA Mayor’s office to build up the start up scene in downtown LA. He’s an east side LA native, and die-hard Dodgers and Lakers fan.