Access To Justice for More Than Now

COVID-19 and the methodologies adopted to manage the spread has engaged futuristic changes into modern technological systems. The following is one such change getting positive feedback.

SUMMARY OF PROFESSOR RICHARD SUSSKIND 2019 BOOK, ONLINE COURTS AND THE FUTURE OF JUSTICE. (A must read for all Judicial Personnel).

Richard Susskind President, Society for Computers and Law

Here is a summary of some central themes in my new book (with thanks to Legal Week, where this piece first appeared - https://www.law.com/.../11/22/why-we-need-online-courts/).

Even in the world’s most advanced jurisdictions, most civil disputes cost too much, take too long, the processes are antiquated, and the whole business is unintelligible to non-lawyers. To make matters worse, legal aid has been drastically cut in most countries. In some court systems, there are staggering backlogs – 100 million cases in Brazil, 30 million in India. Worse, according to the OECD (Organisation for Economic Co-operation and Development), less than 50% of people on earth live under the protection of the law. Inaccess to justice is now a global pandemic.

This is not a challenge that can be met by a modest injection of funds or by streamlining a few inefficient and outmoded practices. Much more radical change is required. In my new book, Online Courts and the Future of Justice (Oxford University Press), I argue that the transformation can only be achieved through the use of technology. In an increasingly digital society, it now makes sense for much of the work of our public courts to be conducted online.

Initially I ask whether court is a service or a place. Do we really need to congregate physically to resolve all our differences, especially if they are relatively minor? I argue not and call for the introduction ‘online courts’, a state-provided dispute management and resolution service. This is not electronic ADR (alternative dispute resolution). It is a reconceptualization of our public courts as a digital service, overhauling a system that dates directly to reforms of more than 150 years ago. By contrast, online courts were neither possible nor conceivable until the birth of the World Wide Web in the early 1990s.

Two lines of services can be provided through online courts. The first is ‘online judging’ which involves the determination of cases by human judges but not in traditional courtrooms. Instead, evidence and arguments are submitted through online services. In turn, judges deliver their decisions not in open court but again via online platforms. The proceedings are not conducted in live sittings by video, audio, or real-time chat. There are no hearings, virtual or otherwise. Online judging is not appropriate for all cases, but it is well-suited to the disposal of the many low value disputes (especially civil, family and tribunal cases) that our current courts struggle to handle efficiently. The underlying approach here is not new. Judges already make a range of decisions on the papers alone. Likewise, in large scale arbitration, many decisions are made without oral hearings. Technology allows us to offer such services publicly, systemically, and at scale.

The second service is in some ways more radical. The idea here is that technology can and should enable courts to deliver more than judicial decisions. These ‘extended courts’ provide tools, for example, that can help court users understand relevant law and the options available to them. They can guide users in completing court forms and help them to formulate their arguments and assemble their evidence. They can also offer various forms of non-judicial settlement such as negotiation and early neutral evaluation, not as an alternative to the public court system but as part of it. Less dramatically, everyday techniques and technologies – apps, smartphones, portals, messaging, video calling, chat bots, livechats, webcasts – can help non-lawyers interact much more easily with the courts. The extension here, and it is a major change, is that the latest systems are being designed primarily for self-represented litigants rather than for lawyers. And these court users can themselves file documents, track cases, engage with court officials and judges, and progress their disputes by using intuitive, jargon-free systems.

As an illustration of extended courts, consider the first phase of the online divorce project in England and Wales. This focused on applications for uncontested divorce and was launched at the end of April 2018. Between then and mid-September 2018, almost 14,000 online applications were received. Fewer than 1% of these contained errors requiring re-submission. Since then, this figure has dropped to below 0.5%. In the old paper-form system, the court required over 40% of the applications to be corrected and re-submitted.

Online courts are up and running in other countries too - in Canada, the United States, China, Singapore, and Australia. The levels of user satisfaction are remarkable, overwhelmingly regarded as more accessible, more convenient, and less costly than traditional court service. They provide a route to public resolution where today many litigants have none. And they offer a more convenient, less costly, speedier, and more understandable for today’s self-represented parties.

What lies ahead? In the current generation of online courts, all authoritative directions or decisions are made by human beings. But we can also envisage a later generation which, in broad terms, draws on artificial intelligence techniques, so that some if not many of the formal directions and decisions will be made by systems rather than flesh-and-blood people. Unsurprisingly, the prospect of this later generation gives rise to much greater debate than the first. Can we actually be spending valuable time, I am often challenged, on the idea of computers making binding decisions? To be sure, this remains a distant prospect, but it is important that we start now to confront some of the ethical and social questions that will inevitably arise as our machines become much more capable.