Online courts: accessible, available, useable
In the final of a two-part series, Auckland Judge David Harvey continues his discussion of a new book Online Courts and the Future of Justice by legal tech expert Professor Richard Susskind
The third part of the book is entitled “The Case Against” and Professor Richard Susskind methodically dissects and critiques the criticisms of the online court.
Some of the objections feature in his UCL presentation and are examined in more detail in this section.
One is that the online court will result in “economy class” justice.
In a rather robust answer Susskind suggests the full panoply of a High Court civil proceeding may be disproportionate in a number of ways to a low-value dispute. Rather, the online court may be quicker, cheaper, more intelligible, and less combative and forbidding than the traditional court.
Critics from the legal profession argue, according to Susskind, from a lawyer-centric perspective. They are familiar with the present system, enjoy the traditions it embodies and find it difficult to imagine a different way of administering justice.
All this amounts to what Susskind calls “status-quo bias”.
Other criticisms involve a lack of transparency, and concerns about the fairness of proceedings, the digital divide and digital exclusion, encouraging litigiousness by means of an easily accessible, useable and available online system (those three words – accessible, available, useable – sum up the advantages of the online court), jurisprudential concerns, and the inevitable criticism of large public service failures in implementing and costing online projects.
Susskind meets all these comments. He argues the present system enables limited transparency and that, via the internet, the public will have access to more data about cases and a clearer view of the workload and output of the courts.
The absence of a courtroom does not put an end to transparency. In the case of State of Washington v Trump, argument took place before three judges who were remotely located, as were the lawyers.
The argument was audio live-streamed before an audience that at times amounted to 130,000 people – a slightly larger number than might be expected to fit into a courtroom.
Susskind challenges the suggestion that a fair trial demands physical presence and that online proceedings are dehumanising.
He suggests other disciplines have moved to the online space, including medicine and psychotherapy. Why not legal proceedings?
What magic does physical presence have that cannot be obtained via an online connection? In addition, coming generations, more familiar with using communications devices, might wonder why the law should hold fast to antiquated concepts such as the necessity for physical presence as a fundamental element of a fair trial.
Although Susskind does not suggest the phrase, could this be the law’s ”Ok Boomer” moment?
The familiarity of the coming generation with digital technologies provides a lead-in to the concerns about digital exclusion.
Those who may be on the wrong side of the digital divide could still have access to online services by proxy, asking children or perhaps grandchildren to assist as they currently do with online shopping and the like.
As far as New Zealand is concerned, a recent study determined that 93% of New Zealanders have access to the internet in some shape or form. An online court system for low-value claims would mean at least 93% of the population might have actual and direct access to a means of resolving a dispute.
That an online court might encourage litigiousness is met by a principled response. Susskind says:
“I want a justice system that enables citizens and organisations to assert their legal right but I will join others in resisting the rise of a culture that is compensation-obsessed, unhealthily claims-conscious, excessively adversarial, combative and litigious.”
There should be appropriate incentives and disincentives directing citizens towards a proportionate use of online services. These could include penalties and costs orders for misuse.
The jurisprudential arguments focus upon such issues as the separation of powers, the possible development of an inquisitorial system, courts without lawyers and the development of the common law.
Susskind draws a distinction between the primary and secondary functions of online courts. An independent judiciary remains a key part of the process when it comes to the “hearing” phase of proceedings.
The executive function is compartmentalised to tiers one and two of the process. In any event, Susskind notes the judiciary and the executive have a unique relationship and neither is hermetically sealed from the other.
As far as a drift towards inquisitorialism is concerned, Susskind considers some of the shortcomings of a purely adversarial system and suggests outcome-thinking leads us to worry less about perpetuating old processes and methods than whether reforms might produce better results.
Diluting a purely adversarial process may enable a wider, quicker, less expensive, less combative and more intelligible court service.
The loss of legal representation is offered as an argument against online courts. Nothing in the proposals of Susskind or Lord Justice Briggs (see LawNews 29 November) suggest that lawyers be excluded from the process.
Already there is a high rate of self-representation in low-level civil proceedings arising primarily from the high cost of legal service. But a litigant before the online court could still have legal representation.
The reality is those who choose to self-represent before the online court would have available a service from which they might otherwise feel excluded as a result of cost, unfamiliarity, complexity or ignorance.
Access to justice
One of Susskind’s fundamental themes is that the online court will improve and enhance access to justice.
Concerns about the development of the common law are easily met. Not all cases will be dealt with before the online court.
In its starting iteration it will be for low-level claims only. There will be a power to direct cases to the traditional track should the need arise. In many respects the argument about the development of the common law is a red herring.
The development of the doctrine of precedent and stare decisis took place within the context of print – an earlier technological paradigm.
The formalisation and standardisation offered by the printing press enhanced the development and acceptance of printed law as authoritative. The dissemination of texts enabled by identical printed copies assisted in an acceptance of printed law as authoritative.
This dissemination, together with the citation of, and reliance upon, earlier cases in print gave rise to the development of precedent and stare decisis. But identical, distributed texts were essential. Law reporting could not have developed in the way that it did without print.
At the same time, it has been argued that the theory of precedent depends, for its ideal operation, on the existence of a comfortable number of precedents, but not too many.
A precedent-based case-law system needs a substantial amount of past wisdom but when the volume of cases becomes too great, too varied or too confused, the course of judicial decision becomes unpredictable and turns into a ‘random operation’. This issue of critical mass was addressed by other qualities of print.
Printed material has built-in physical and economic limitations which impact on the volume of legal information available.
Redirecting significant cases from an online court into the traditional track will, in a similar way, allow for that critical mass of cases necessary for common law development.
Finally, there is the issue of the rather dire performance of government IT projects.
In this regard, rather than a “big bang” approach, Susskind argues for a gradual, incremental pilotbased introduction of the system to enable the system to be examined, refined and adapted.
This has already commenced in parts in England and the present system has been the subject of criticism from Frederick Wilmot-Smith (Justice E-Bay Style).
The criticism is useful and helpful. It identifies the very reason Susskind argues for an incremental pilot-based approach – so shortcomings in the system can be identified, addressed and improved.
Underlying Susskind’s answers to his critics is the common theme of what he calls “Voltaire’s Riposte”. This develops from Voltaire’s comment that “the best is the enemy of the good” and Susskind suggests it could be reworded to read “the best is the enemy of the better”.
Voltaire’s Riposte works in this way: although online courts may have drawbacks, they will amount to an advance on the current disproportionate system used for resolving low-value disputes.
Furthermore, the new system will provide a remedy for people who currently, for whatever reason, are unable to avail themselves of it. The online court system may not be perfect but it is better than the system that exists at present.
The final part of the book deals with the future and examines emerging technologies, artificial intelligence – something with which Susskind has been involved since the mid-1980s, what he refers to as the computer judge – and finally the global challenge: introducing online courts to countries with enormous backlogs of cases in their traditional systems.
He envisages a standard, adaptable, global platform for online courts while at the same time accepting such an approach is highly ambitious.
Susskind’s book is challenging on several levels. It will provoke debate, not only about the state of our current court system but about ways it can be improved, modified or changed entirely.
The ultimate objective is indisputable in its validity – better access to justice systems. Susskind argues technology gives us an opportunity to adopt a new and innovative way of achieving such a goal.
As he says, “I know of no principle of justice that requires us to ignore such an opportunity.”
Professor Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) ISBN 978-0-19-883836-4
David Harvey is a District Court Judge (Acting Warrant)