How and why we should develop online courts

In part 1 of a two-part series reviewing the latest book by globally-renowned legal tech expert Professor Richard Susskind, New Zealand’s top technology judge, David Harvey, considers the case for online courts and how they might improve access to justice

Judge Harvey

Earlier this year I was privileged to attend the Courts Technology Conference 2019 in New Orleans.

The keynote speaker was Professor Richard Susskind, IT advisor to the Lord Chief Justice of England and Wales. Susskind offered several challenges to the way we think about courts and their role in the justice system.

He posed a question: given the extraordinary developments in technology and the way it changes our behaviours and our lives, can we expect our courts to continue to work as they have?

He offered proposals in England for an online court to deal with low-level civil claims and the British Columbia Civil Resolution Tribunal as examples of the way technology may provide alternative processes to the present system.

Susskind’s presentation was a one-hour overview of his most recent book Online Courts and the Future of Justice. Although in the acknowledgements he mischievously suggests he writes the same book every four years, his new work can be seen as a continuation of some of the themes addressed in his earlier works, The End of Lawyers, Tomorrow’s Lawyers, The Future of Law and The Future of the Profession.

Although Online Courts restates many of the themes pervading Susskind’s earlier work, it advocates a case for using technology to improve the court system.

His is not a book that, like Athena from the head of Zeus, suddenly sprung fully formed. Susskind has been working in the area of online courts since 2015 when he chaired the Civil Justice Council Online Dispute Resolution Advisory Group.

This work produced a report in February 2015 which described the prototype for an online court process for dealing with low-level civil claims.

Shortly after that report was published, Justice – an all-party law reform and human rights organisation working to strengthen the justice system in the UK – released its own report Delivering Justice in an Age of Austerity. This also advocated online courts with wider scope than those recommended by the Civil Justice Council.

Unsurprisingly, Susskind was a member of the working party that produced that report.

His model was taken up by Lord Justice Briggs (as he then was) in two reports addressing the Civil Court Structure Review which has formed the basis for some significant and ongoing reforms of the delivery of court services in England.

Unsurprisingly the vision of the online court has attracted considerable controversy.

Since 2015, Susskind has developed his thinking on the subject. For example, in 2017 he presented his thoughts at a seminar conducted by the UK Judicial Institute and chaired by Dame Hazel Genn. He engaged with a number of critics of his proposal and also deals with critics at some length in his book.

Delivering justice

One of the central themes underlying Susskind’s arguments is the way technology can enhance and improve access to justice.

This theme was present in his Judicial Institute discussion and was further articulated in a lecture he delivered on 23 February 2017 at Harvard Law School entitled Upgrading Justice.

He introduces the theme in his examination of courts and the role they play in the delivery of justice, and looks at the way courts have developed as a part of the structure of society and the way in which they operate.

One aspect is the underlying theme of what courts do and what users expect of them.

Susskind encourages a mindset called “outcome thinking” which he considers can be invoked for all professions and professionals.

In terms of courts, outcome thinking should focus on the benefits courts can bring rather than the preservation of traditional practices and processes for their own sake.

He poses the question: are there any benefits or features of our current system that are so intrinsically valuable or important that replacing them should be resisted, even if a different approach can yield better outcomes?

He asks: “Should we… in the name of the ‘humanity of physical presence’ or the ‘majesty of the law’ insist on maintaining the tradition of physical hearings even if online courts could greatly and reliably increase access to justice?”

Virtual presence

In his consideration of the way technology can improve access to justice and the work the courts can do, Susskind considers the various remote technologies available and that allow “virtual” presence.

He advances a model where a fully virtual hearing could take place without a central location where everyone participates virtually, using immersive telepresence systems, such as Cisco Telepresence.

These employ identical furnishings and accoutrements so all participants feel they are in the same space. But this is only an aspect of the fully-fledged online court that he envisages.

Susskind suggests we need to reconsider the role of the court.

Is it a place where people come together or should the court system provide a service? He argues for the latter, suggesting the use of technology and the various ways digital systems enhance communication challenge a 19th century model of court operation.

As he puts it, the “court as a place” perpetuates the oral/physical presence/synchronous participation model.

The “court as a service” recognises the court as an essential aspect of the rule of law, available to all with a variety of delivery services to help citizens use the law to achieve their objectives in a dispute.

The use of technology means there is no need for the “court as a place” because all participants may be remotely located.

Apart from the saving in cost of existing or new court buildings, the need for travel is eliminated (an advantage in a world where the use of heat-producing transport systems is discouraged), timeliness is increased (participants are not late because of traffic delays), it is not necessary for everyone to be in the same place at the same time, and the use of AVL, multi-media and digital filing means hearings may take place asynchronously.

This would allow parties to fully put their case, unrestrained by limited hearing time available in court. In addition, work-flows can be better managed and disposed of more effectively and efficiently.

Pushback

The subject is a significant and challenging one.

Susskind acknowledges there is, and will continue to be, substantial pushback from lawyers, judges and government officials.

For that reason, he structures his book as a form of rolling argument, using robust prose and clear expression. I have heard several of Susskind’s presentations and he writes as he speaks. I could hear his distinctive, light Scottish accent beneath the prose.

The book is divided into four parts. The first deals with courts and justice – large topics, one might think.

Susskind deconstructs the justice system into its fundamental parts and questions why it is not working as satisfactorily as it might, and whether the 19th century model which is still with us is relevant in a new communications paradigm.

He suggests there may be two approaches to reform; one is based on adding technology onto the old model. The other envisages using technology to enhance fundamental concepts such as access to justice and offering a radically different model for resolving low-value civil claims.

It should be emphasised that Susskind sees the online court as a part of a greater whole, in that complex cases could still be dealt with in what may be called the traditional way.

This leads into the second part of the book, dealing with a theme upon which I have touched – the questions of whether the court is a service or a place.

In this section he proposes some of the fundamentals of his model of the online court – the use of technology to provide online legal guidance and assistance for self-represented litigants, something the court system has largely avoided.

In this regard he offers the British Columbia Civil Resolution Tribunal Solution Explorer as an example. This is the first tier of Susskind’s model and was what Lord Justice Briggs described as the “triage” phase of the dispute.

He then proceeds to the second phase in the life of the online court dispute, involving containment.

This process actually commences in the first phase when, using smart technology, the nature of a dispute and some of the underlying issues can be identified.

In the second phase, the containment is enhanced by what is essentially an online mediation phase which may be conducted synchronously or asynschronously and involves the intervention of a legally-trained mediator.

Should the matter fail to settle, it may progress to a “hearing” although this may be “on the papers” or may be conducted asynchronously, thus avoiding the need for every participant to be present (in court or online via AVL) at the same time.

Susskind closes this part of the book with case studies from British Columbia, the British Traffic Penalty Appeal Tribunal, China, Singapore, Australia and the United States of America.

To be concluded next week. David Harvey is a District Court Judge (Acting warrant)

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