Artificial Intelligence and Law(s)

In Philip K. Dick’s book “Do Androids Dream of Electric Sheep” – made into the brilliant movie “Bladerunner” directed by Ridley Scott – the genetically engineered replicants, indistinguishable from human beings, were banned from Earth and set to do work on off-world colonies. There was a fear of the threat that these “manufactured” beings could pose to humans.

Isaac Asimov’s extraordinarily successful “Robot” series of short stories and books had a similar premise –  that intelligent robots would pose a threat to humans. In “Androids” the way that the replicants were regulated was that they were shipped off-world and if they returned to Earth they were hunted down and “retired”. Asimov’s regulatory solution was a little more nuanced. Robots, upon the creation of their positronic brains, were programmed with the Three Laws of Robotics. These were as follows:

  1. A robot may not injure a human being or, through inaction, allow a human being to come to harm.
  2. A robot must obey orders given it by human beings except where such orders would conflict with the First Law.
  3. A robot must protect its own existence as long as such protection does not conflict with the First or Second Law.

These three laws were the foundation of all the tensions that arose in Asimov’s stories. How were the Three Laws to be applied? What happens when there is a conflict? Which rule prevails?

The stories are classified as science fiction. I prefer to treat them as examples of statutory interpretation. But underpinning the Three Laws and the reason for them was what Asimov called “The Frankenstein Complex” – a term he coined for fear of mechanical men or created beings that resemble human beings. And his answer to that fear and how it could be mitigated was the Three Laws.

A similar call recently went out about how we should deal with Artificial Intelligence. A report entitled “Determining Our Future: Artificial Intelligence”  written collaboratively by people from the Institute of Directors and the law firm Chapman Tripp, whilst pointing out the not insubstantial benefits that artificial intelligence or “smart systems” may provide, has a significant undertone of concern.

The report calls for the Government to establish a high-level working group on AI which should consider

“the potential impacts of AI on New Zealand, identifying major areas of opportunity and concern, and making recommendations about how New Zealand should prepare for AI-driven change.”

The writers consider AI is an extraordinary challenge for our future and the establishment of a high level working group is a critical first step to help New Zealand rise to that challenge. It seems to be the New Zealand way to look to the Government to solve everything, problematical or otherwise which says interesting things about self-reliance.

The report is an interesting one. It acknowledges the first real problem which is how do we define AI. What exactly does it encompass? Is it the mimicking of human cognitive functions like learning or problem solving. Or is it making machines intelligent – intelligence being the quality that enables an entity to function appropriately and with foresight in its environment.

Even although there seems to be an inability to settle upon a definition a more fruitful part of the examination is in the way in which “smart” computing systems are used in a range of industries and there is the observation that there has been a significant increase in investment in such “smart” systems by a number of players.

The disruptive impact of AI is then considered. This is not new. One of the realities of the Digital Paradigm is continuing disruptive change. There is little time to catch breath between getting used to one new thing and having to confront and deal with a new new thing. Disruption has been taking place from before the Digital Paradigm and indeed back to the First Industrial Revolution.

There is a recognition that we need to prepare for the disruptive effects of any new technology, but what the report fails to consider is the way in which disruptive technologies may ultimately be transformative. There is some speculation that after an initial period of disruption to established skills and industries, AI may lead to greater employment as new work becomes available in areas that have not been automated.

The sense of gloom begins to increase as the report moves to consider legal and policy issues. Although the use of AI in the legal or court process – I prefer to use the term expert legal systems – is not discussed, issues such as whether AI systems should be recognised as persons are mentioned. In this time of Assisted Birth Technologies and other than purely natural creation of life, it is not an easy question to answer. “Created by a human” doesn’t cut it because that is the way that the race has propagated itself for millennia. “Artificially created by a human” may encompass artificial insemination and confine people who are otherwise humans to some limbo status as a result.  But really what are we talking about. We are talking about MACHINE intelligence that is driven by algorithms. I don’t think we are talking about organic systems – at least not yet.

But it is the last question in that section that gives me cause for pause. Are New Zealand’s regulatory and legislative processes adaptive enough to respond to and encourage innovations in AI? What exactly is meant by that? Should we have regulatory systems in place to control AI or to develop it further? That has to be read within the context of the introductory paragraph

“AI presents substantial legal and regulatory challenges. These challenges include problems with controlling and foreseeing the actions of autonomous systems.”

Then the report raises the “Frankenstein Complex.” The introductory paragraph reads as follows:

“Leaders in many fields have voiced concerns over safety and the risk of losing control of AI systems. Initially the subject of science fiction (think Skynet in the Terminator movies), these concerns are now tangible in certain types of safety-critical AI applications – such as vehicles and weapons platforms – where it may be necessary to retain some form of human control.”

The report goes on to state:

Similar concerns exist in relation to potential threats posed by self-improving AI systems. Elon Musk, in a 2014 interview at MIT, famously called AI “our greatest existential threat”.
Professor Stephen Hawking, in a 2014 interview with BBC said that “humans, limited by slow biological evolution, couldn’t compete and would be superseded by AI”.

Stanford’s One-Hundred Year Study of AI notes that

“we could one day lose control of AI systems via the rise of superintelligences that do not act in accordance with human wishes – and that such powerful systems would threaten humanity”.

Google’s DeepMind lab has developed an AI ‘off-switch’, while others are developing a principles-based framework to address security.

Then the question is asked

“What controls and limitations should be placed on AI technology.”

I think the answer would have to be as few as possible consistent with human safety that allow for innovation and continued development of AI. It must be disturbing to see such eminent persons such as Hawking and Musk expressing concerns about the future of AI. The answer to the machine lies in the machine as Google has demonstrated – turn it off if need be.

The report closes with the following observation.

The potential economic and social opportunities from AI technologies are immense. The public and private sectors must move promptly and together to ensure we are prepared to reap the benefits, and address the risks of AI.

And regulation is the answer? I think not.

Artificial Intelligence as a Tool for Lawyers

My particular interest in AI has been in its application to the law so let’s have a brief look at that issue. Viewed dispassionately the proposals are not “Orwellian” nor do they suggest the elevation of “Terminator J” to the Bench. It may also serve to put a different perspective on AI and the future.

In a recent article, Lex Machina’s Chief Data Scientist observed that data analytics refined information to match specific situations.

“Picture this: You’re building an antitrust case in Central California and want to get an idea of potential outcomes based on everything from judges, to districts, to decisions and length of litigation. In days of law past, coming up with an answer might involve walking down the hall and asking a partner or two about their experiences in such matters, then begin writing a budget around a presumed time frame. “

Howard says that analytics change the stakes. “Not only are you getting a more precise answer,” he attests, “but you’re getting an answer that is based on more relevant data.”

Putting the matter very simplistically legal information either in the form of statutes or case law is data which has meaning when properly analysed or interpreted. Apart from the difficulties in location of such data, the analytical process is done by lawyers or other trained professionals.

The “Law as Data” approach uses data analysis and analytics which match fact situations with existing legal rules.

Already a form of data analysis or AI variant is available in the form of databases such as LexisNexis, Westlaw, NZLii, Austlii or Bailii. Lexis and Westlaw have applied natural language processing (NLP) techniques to legal research for 10-plus years. The core NLP algorithms were all published in academic journals long ago and are readily available. The hard (very hard) work is practical implementation. Legal research innovators like Fastcase and RavelLaw have done that hard work, and added visualizations to improve the utility of results.

Using LexisNexis or Westlaw, the usual process involves the construction of a search which, depending upon the parameters used will return a limited or extensive dataset. It is at that point that human analysis takes over.

What if the entire corpus of legal information is reduced to a machine readable dataset. This would be a form of Big Data with a vengeance, but it is a necessary starting point. The issue then is to:

  1. Reduce the dataset to information that is relevant and manageable
  2. Deploy tools that would measure the returned results against the facts or a particular case to predict a likely outcome.

Part (a) is relatively straight forward. There are a number of methodologies and software tools that are deployed in the e-Discovery space that perform this function. Technology-assisted review (TAR, or predictive coding) uses natural language and machine learning techniques against the gigantic data sets of e-discovery. TAR has been proven to be faster, better, cheaper and much more consistent than human-powered review (HPR). It is assisted review, in two senses. First, the technology needs to be assisted; it needs to be trained by senior lawyers very knowledgeable about the case. Second, the lawyers are assisted by the technology, and the careful statistical thinking that must be done to use it wisely. Thus, lawyers are not replaced, though they will be fewer in number. TAR is the success story of machine learning in the law. It would be even bigger but for the slow pace of adoption by both lawyers and their clients.

Part (b) would require the development of the necessary algorithms that could undertake the comparative and predictive analysis, together with a form of probability analysis to generate an outcome that would be useful and informative. There are already variants at work now in the field of what is known as Outcome Prediction utilising cognitive technologies.

There are a number of examples of legal analytics tools. Lex Machina, having developed a set of intellectual property (IP) case data, uses data mining and predictive analytics techniques to forecast outcomes of IP litigation. Recently, it has extended the range of data it is mining to include court dockets, enabling new forms of insight and prediction. Now they have moved into multi-District anti-trust litigation.

LexPredict developed systems to predict the outcome of Supreme Court cases, at accuracy levels which challenge experienced Supreme Court practitioners.

Premonition uses data mining, analytics and other AI techniques “to expose, for the first time ever, which lawyers win the most before which Judge.”

These proposals, of course, immediately raises issues of whether or not we are approaching the situation where we have decision by machine.

As I envisage the deployment of AI systems, the analytical process would be seen as a part of the triaging or Early Case Assessment process in the Online Court Model, rather than as part of the decision making process. The advantages of the process are in the manner in which the information is reduced to a relevant dataset performed automatically and faster than could be achieved by human means. Within the context of the Online Court process it could be seen as facilitative rather than determinative. If the case reached the decision making process it would, of course, be open to a Judge to consider utilising the “Law as Data” approach with, of course, the ultimate sign-off. The Judge would find the relevant facts. The machine would process the facts against the existing database that is the law and present the Judge with a number of possible options with supporting material. In that way the decision would still be a human one, albeit machine assisted.

Conclusion

As we embark down this road let us ensure that we do not over-regulate out of fear. Let us ensure that innovation in this exciting field is not stifled and that it continues to develop. The self-aware, self-correcting, self-protecting Skynet scenario is not a realistic one and, in my view, needs to be put to one side as an obstruction and recognised for what it is – a manifestation of the Frankenstein complex. And perhaps, before we consider whether or not we travel the path suggested in the report we should make sure that the Frankenstein complex is put well behind us.

 

Technological Competence for Lawyers

The rise of technology and its pervasive effect on all our lives – whether we like it or not – has implications for everyone involved in the practice of law. Conveyancing transactions are done on-line. Some company documents can only be filed on line. The use of computer systems, on-line legal research, networked communications and the Internet all feature to some extent in legal offices.

Yet, how technologically aware are lawyers.

This is a matter that has been addressed as a matter of competence to practice in the United States. In 2012 the American Bar Association made several changes to its Model Rules and commentary.

The starting point is basic competence. Rule 1.1 states:

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

Comment 8 to the Rule states what is required to achieve that level of competence.

“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

On this basis, lawyers cannot plead ignorance or inability regarding the use of technology and its associated risks.

So what is the technology that needs to be understood? First is the equipment that forms part of day-to-day legal practice such as computers, tablets, smart phones, scanners, printers or copiers. This category also includes the use of email, and the electronic storage of documents and other information.

Then there is an understanding of the software and programs that are used that may streamline or simplify legal practice. This may include programs for storing, managing and reviewing electronically stored information as well as law practice and management software including matters such as client information, contacts, time entry, billing, document management, docketing and calendaring.

Lawyers also need to be aware of the technology used by their clients and how that has an impact upon business as well as technology that may  impose liability on clients, such as, for example, GPS technology, electronic logging, or automated driving technology.

For litigators there has to be knowledge of and familiarity with  courtroom technology.

All of this may seem pretty intimidating but in today’s technological age, beset as we are with continuing disruptive change, it is necessary.

If practitioners are concerned at the ABA proposals the Florida Bar has gone one step further. Application was made to the Supreme Court of Florida in September 2016 to amend the Bar Rules to require all lawyers to maintain technological competence by undertaking 3 CLE hours of approved technological education courses. Florida lawyers have to complete 33 hours every 3 years. The standard comes into effect on 1 January 2017

Interestingly enough there was been little resistance from Florida practitioners. The benefits seem to have made themselves clear.

The question that comes to mind is whether or not there should be a technological competence requirement along the lines proposed by the ABA for New Zealand law practitioners or whether the New Zealand Law Society should adopt some form of advisory about technological competence and upskilling for practitioners.

Technology for Lawyers: A competence requirement?

There has been a bit of publicity of late about the difficulties that some law firms are having in adapting to the continuing disruptive change that characterises the Digital Paradigm. The introduction and use of information technologies provides one example.

A lawyer’s stock in trade is not time, as has been suggested in the past. It is, in fact, information. The law office is an information hub with information flows coming in and out in the form of instructions, advice, the provision of information necessary to complete transactions, the preparation of materials to inform the Court of the nature of a dispute and the like. Information technologies must be a part of everyday legal practice. Technology enables law firms to do better in the provision of their services, and can assist in providing clients with cheaper, high-quality and nimble services.

Smaller law firms face a real challenge. There is not the division of labour in a smaller form, tuned to fulfilling client needs, to step back and take a deep perspective view of the future. Big law firms are able to attend to this aspect of practice management and often have internal teams working on little else. The smaller firms and the sole practitioners need to focus on things like websites, digital marketing, social media, e-discovery and cloud-based tools for practice and case management—hopefully giving them a competitive advantage in job market and spurring the use of new technology in every day legal practice. Cloud technology, for example, “is removing many obstacles by reducing hardware and in-house IT investments, quelling cybersecurity concerns, easing the complexity of scaling and updating software, and providing better overall access to general computing power. Additionally, as vendors continue to place more of a premium on providing online training modules for their products, the last great barrier to remain will simply be motivation” according to Mike Susong of Legaltech News.

At a recent forum titled “The Future of Legal Services in the United States: The ABA Issues a Clarion Call for Change” discussions centred on the problems citizens faced getting access to legal services. William Hubbard, immediate past-president of the American Bar Association suggested lawyers think more creatively about how they deliver legal services meaning that lawyers should “embrace technology and the benefits technology can bring to provide new avenues to provide legal services to those in need.”

There is a significant recognition, especially by the ABA, of the importance of technological knowledge and understanding as part of professional competence requirements. Four years ago, in 2012 the ABA Model Rules of Professional Conduct required, as part of the commentary to Rule 1.1, that lawyers have a duty to keep abreast of the benefits and risks associated with technology.

In September 2016 the Florida Supreme Court took the matter one step further, issuing an opinion adopting the Florida Bar Association’s proposal for mandatory technology Continuing Legal Education (CLE).

“In addition to adding the three-hour requirement, the court also amended a comment to its rule on lawyer competence to say that lawyers could retain non-lawyer advisers with “established technological competence in the relevant field.”

The court added that competent representation may also involve cybersecurity and safeguarding confidential information. “In order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology,” the court held.”

It will be interesting to see if this move catches on. There can be no doubt that CLE programmes contain technology oriented modules, but the Florida move now makes it mandatory. This must be viewed as a necessary step as we move further and further into the Digital Paradigm and more and more aspects of technology permeate the legal landscape.

I have argued in the past that lawyers who argue technology related cases need to understand the technology and how it works. There is no point arguing a case about publication of material on social media without knowing how the platform operates, what its parameters and settings are, what the settings were at the relevant time and, importantly, how those settings can be located and examined. There is not really a “one size fits all” approach that can be adopted to social media and it would be unwise to make generalised assumptions about the qualities and operation of a platform.

There is little point in attending a case management conference about e-discovery unless the lawyers are aware of the various technologies that are available and, as importantly, how they work so that a reasonable and proportionate discovery proposal can be reached.

The nature of digital information, in and of itself, is paradigmatically different from that which is recorded on paper. Lawyers must understand this and recognise that although content is king most of the time, what lies beneath the content can be as informative, if not more so, than the content on the face of the document.

There are many more examples but the message is clear. Lawyers cannot be resistant to the Digital winds of change that are blowing. Bend, adapt, adopt must be the message for lawyers in the Digital Paradigm.

Memory Illusions and Cybernannies

Over the last week I read a couple of very interesting books. One was Dr Julia Shaw’s The Memory Illusion. Dr. Shaw describes herself as a “memory hacker” and has a You Tube presence where she explains a number of the issues that arise in her book.

The other book was The Cyber Effect by Dr Mary Aiken who reminds us on a number of occasions in every chapter that she is a trained cyberpsychologist and cyberbehavioural specialist and who was a consultant for CSI-Cyber which, having watched a few episodes, I abandoned. Regrettably I don’t see that qualification as a recommendation, but that is a subjective view and I put it to one side.

Both books were fascinating. Julia Shaw’s book in my view should be required reading for lawyers and judges. We place a considerable amount of emphasis upon memory assisted by the way in which a witness presents him or herself -what we call demeanour. Demeanour has been well and truly discredited by Robert Fisher QC in an article entitled “The Demeanour Fallacy” [2014] NZ Law Review 575. The issue has also been covered by  Chris Gallavin in a piece entitled “Demeanour Evidence as the backbone of the adversarial process” Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-adversarial-process

A careful reading of The Memory Illusion is rewarding although worrisome. The chapter on false memories, evidence and the way in which investigators may conclude that “where there is smoke there is fire” along with suggestive interviewing techniques is quite disturbing and horrifying at times.

But the book is more than that, although the chapter on false memories, particularly the discussions about memory retrieval techniques, was very interesting. The book examines the nature of memory and how memories develop and shift over time, often in a deceptive way. The book also emphasises how the power of suggestion can influence memory. What does this mean – that everyone is a liar to some degree? Of course not. A liar is a person who tells a falsehood knowing it to be false. Slippery memory, as Sir Edward Coke described it, means that what we are saying we believe to be true even although, objectively, it is not.

A skilful cross-examiner knows how to work on memory and highlight its fallibility. If the lawyer can get the witness in a criminal trial to acknowledge that he or she cannot be sure, the battle is pretty well won. But even the most skilful cross-examiner will benefit from a reading of The Memory Illusion. It will add a number of additional arrows to the forensic armoury. For me the book emphasises the risks of determining criminal liability on memory or recalled facts alone. A healthy amount of scepticism and a reluctance to take an account simply and uncritically at face value is a lesson I draw from the book.

The Cyber Effect is about how technology is changing human behaviour. Although Dr Aiken starts out by stating the advantages of the Internet and new communications technologies, I fear that within a few pages the problems start with the suggestion that cyberspace is an actual place. Although Dr Aiken answers unequivocally in the affirmative it clearly is not. I am not sure that it would be helpful to try and define cyberspace – it is many things to many people. The term was coined by William Gibson in his astonishingly insightful Neuromancer and in subsequent books Gibson imagines the network (I use the term generically) as a place. But it isn’t. The Internet is no more and no less than a transport system to which a number of platforms and applications have been bolted. Its purpose –  Communication. But it is communication plus interactivity and it is that upon which Aiken relies to support her argument. If that gives rise to a “place” then may I congratulate her imagination. The printing press – a form of mechanised writing that revolutionised intellectual activity in Early-modern Europe – didn’t create a new “place”. It enabled alternative means of communication. The Printing Press was the first Information Technology. And it was roundly criticised as well.

Although the book purports to explain how new technologies influence human behaviour it doesn’t really offer a convincing argument. I have often quoted the phrase attributed to McLuhan – we shape our tools and thereafter our tools shape us – and I was hoping for a rational expansion of that theory. It was not to be. Instead it was a collection of horror stories about how people and technology have had problems. And so we get stories of kids with technology, the problems of cyberbullying, the issues of on-line relationships, the misnamed Deep Web when she really means the Dark Web – all the familiar tales attributing all sorts of bizarre behaviours to technology – which is correct – and suggesting that this could become the norm.

What Dr Aiken fails to see is that by the time we recognise the problems with the technology it is too late. I assume that Dr Aiken is a Digital Immigrant, and she certainly espouses the cause that our established values are slipping away in the face of an unrelenting onslaught of cyber-bad stuff. But as I say, the changes have already taken place. By the end of the book she makes her position clear (although she misquotes the comments Robert Bolt attributed to Thomas More in A Man for All Seasons which the historical More would never have said). She is pro-social order in cyberspace, even if that means governance or regulation and she makes no apology for that.

Dr Aiken is free to hold her position and to advocate it and she argues her case well in her book. But it is all a bit unrelenting, all a bit tiresome these tales of Internet woe. It is clear that if Dr Aiken had her way the very qualities that distinguish the Digital Paradigm from what has gone before, including continuous disruptive and transformative change and permissionless innovation, will be hobbled and restricted in a Nanny Net.

For another review of The Cyber Effect see here

Rozenberg QC on the Online Court – A Review

Joshua Rozenberg QC is an English journalist and commentator on matters legal. I have read his articles and commentaries now for some time. He is thoughtful and balanced, unafraid to call it as he sees it. He practiced as a barrister before moving into journalism and was appointed honorary Queens Counsel for his work as the “pre-eminent legal analyst or modern times.”

So it was that I saw a reference to his monograph entitled “The Online Court – will it work?” on his Facebook page. Rozenberg conceded that it was too long for any of his normal outlets to publish but this piece was available for download from Amazon. He hastened to point out that although much of his work is available at no charge the essay was not commissioned, sponsored nor supported by advertising so a small charge of £1.99 was levied at the UK Amazon store and $US2.49 at Amazon.com. A reasonable fee under the circumstances. Just one problem. The essay was available only to UK customers.

I have written before about the bizarre practice of geoblocking in an on-line borderless world. My earlier encounters with this loathsome practice have been in attempts to purchase software and video content. The physical product isn’t a problem. A proxy forwarding address in the US or UK solves most difficulties. However, additional issues arise when one is dealing solely with digital content. Without an English address, obtaining the content seems nigh impossible. What I cannot understand is why Amazon would want to restrict distribution in this way. After all, place doesn’t matter in the delivery of online content. No greater delivery or packaging costs are incurred. No explanation is given for restricting distribution.

However, that said, Rozenberg’s essay makes fascinating reading. He opens his discussion with the background to the current reforms starting with early attempts which were not very successful because they were not judge-led – indeed an essential requirement in any proposed reform of the Courts process. After all, next to Court staff Judges are the principal users of the Court system. Furthermore, when I talk about “Judge-led” I don’t mean that judges should be kept informed about what the IT people are doing, but that the judges actively lead the process. This was enabled in England by the formation of the Judicial Office which was set up in 2006 under leadership of the Lord Chief Justice. The development of a single courts service further assisted. Rozenberg sets out the way in which the current judicial leadership role came to be in a helpful overview.

He then passes on to cover the reform programme of Her Majesty’s Courts Service (HMCTS) and the three strands of work suggested by Lord Justice Briggs

  • The use of modern IT
  • Less reliance on Court buildings
  • The allocation of some work done by Judges to case lawyers

The allocation of funding in 2014 has remained in place, an achievement Rozenberg attributes to the influence of the Lord Chief Justice, Lord Thomas of Cwmgiedd.

Rozenberg then goes on to summaries the various projects, numbering in total 21, some of which, like the eJudiciary service, are already up and running. For those of us looking at the English IT reforms from the outside, this is an invaluable snapshot of where things are and where it is hoped they may go. Most of the publicity that one sees about the reforms focus upon the Online Court proposals but Rozenberg makes it clear that this is only a part of the story. I was impressed with the scope of the proposals. I was familiar with the eJudiciary service, having had it demonstrated to me by His Honour Judge John Tanzer in 2015. I was also familiar with the Rolls project but other elements were new.

Rozenberg then passes to deal with the online court which is probably the most revolutionary proposal.  He covers the initial proposals by Professor Richard Susskind and Lord Justice Briggs. The Online Court involves the innovative use of technology. Two paths were available. One was to use technology to imitate the existing system. This would merely be a digital replication of a system that would be recognisable to William Garrow or Charles Dickens. Digital technologies allow for disruptive change. Disruption in and of itself cannot be seen to be an end. But transformation by means of disruption, especially if that transformation improves, in this case, just outcomes is to be applauded.

The Susskind and Briggs proposals change the emphasis of the Court process. In the past, the process has been geared towards getting the case before the Court. That can be somewhat complex and that complexity will invariably involve the participation of lawyers, assisting the litigants through the procedural shoals to a hearing.

The online process is geared towards introducing the possibility of resolution from the very beginning. At all stages of the process resolution is the objective, rather than waiting for the judge to resolve the matter. This the various stages of the process offer opportunities for resolution, rather than being milestones that have to be passed on the way to a hearing.

The issue that has given cause for concern is that lawyers are not seen as essential to the process. Rozenberg covers this real area of concern by pointing out that lawyers will have a different role in the process, rather than being excluded from it all together. The use of an App will assist litigants although there is nothing to prevent a litigant seeking legal assistance or advice. But one of the objectives of the new process is to improve access to justice and if that can be achieved it will be a significant accomplishment and a validation of the use of IT.

Rozenberg examines the feasibility of the system uner the ambiguous heading “Will IT work”. There are two questions posed here. Will I(nformation)T(echnology) work which puts the focus upon the way in which the IT projects are put together. Or will IT (the big strategic plan) work. It is the first question that Rozenberg attempts to answer although, because the projects are IT dependent the answer to one will answer the other.

Rozenberg ends on a cautious note, stating, correctly in my view, that digitising the courts is the biggest challenge to the judicial system in 150 years and it is a reform that must not fail, if the restoration and maintenance of access to justice for those who need it most is to take place.

The essay or publication is an excellent example of the enabling power of technology. A close examination of highly significant and innovative approaches to the justice system by England’s leading legal commentator adds to informed debate. Rozenberg is to be congratulated for taking the initiative to put the information on line. It is a pity that Amazon’s policies limit its accessibility.

But for me the essay was extremely valuable in that it provides meaningful context to the on-line court – an innovation in which I have been very interested since I met and spoke with Professor Susskind about it in May of last year. That broader view, and the scope of the IT projects that are in train for the English system give added weight to Rozenberg’s conclusion. It is clearly written, as one would expect, well worth the £1.99 from Amazon and valuable assessment of the state of English Courts IT at the cross roads.

District Court Decisions Online?

Recently David Farrar in Kiwiblog commented on the decision of the Government to step back from a provision – Clause 401 – of the Judicature Modernisation Bill requiring final decisions of the District Court to be published online. I thought I would expand on his piece.

The deleted Clause 401 reads:

(1) Every final written judgment of the court (excluding the Family Court, the Youth Court, and the Disputes Tribunal) must be published on the Internet as soon as practicable unless there is good reason not to publish the complete judgment.

(2) Good reason not to publish a judgment or part of it includes the following:

(a) non-publication is necessary because of a suppression order or statutory requirement that affects publication or continued publication:

(b)the judgment falls into a category of judgments that are of limited public value:

(c) taking into account the presumption in subsection (1) in favour of publication, a Judge nevertheless determines that the judgment or any part of it should not be published because publication or the effect of publication would be contrary to the interests of justice.

(3) In this section, final written judgment means a written decision that determines or substantially determines the outcome of any proceedings and is either—

(a) a written reserved judgment; or

(b) an oral judgment transcribed by an official transcription service.

 

I was gratified when I saw this section was to be part of the Act. It was the culmination of a process in which I had been involved since 1996 to have the decisions of all the New Zealand Courts made available online.

The proposition is not that revolutionary. In common law countries – those that have inherited or adopted the English system of justice – the decisions of the Courts interpret and develop the law. The Internet meant that the decisions of the Courts could be released from the restrictions of paper and library shelves and be available for distribution to all. As a society that holds that ignorance of the law is no excuse it seemed perverse that there should still be obstacles to knowing what the law was.

The path to publication of the decisions of the Courts was not an easy one. I won’t traverse that story here. Suffice to say there was resistance from a number of unexpected quarters and a lack of understanding of the importance of the concept of the transparent operation of the Courts.

The decisions of the appellate Courts such as the Court of Appeal and the Supreme Court are available from the Courts of New Zealand Website as well as the clunky and difficult to navigate Judicial Decisions Online (JDO) where the decisions of the High Court may be found. Decisions are also available from the excellent if underfunded and little appreciated NZLII (New Zealand Legal Information Institute) where the search capabilities are a little easier in terms of analysing results than JDO and the databases are larger.

All that remained was for the decisions of the District Court to be made available online. Having a requirement in legislation made compliance mandatory. It was going to be a large task but there were a number of alternative ways in which it could be accomplished. But  mandatory publication will now not take place.

All is not lost. The District Court recently launched its own website and selected decisions of the District Court will be made available. Upon its release

Chief District Court Judge Jan-Marie Doogue said that from now on, a Publications Unit working under an editorial board of senior judges, will select for online publication those decisions considered of high public or legal interest and which meet criteria for publication. This calendar year, the website expects to publish about 2500 decisions, rising to about 4000 next year.

That is to be applauded. But if Clause 401 had remained it would have required funding. And that seems to have been an important driver. Recently the Minister of Justice released a statement explaining why Clause 401 had been removed. I reproduce it below along with my comments and critique.

“The Justice Ministry has advised me that each year the District Court (excluding the Family Court and Youth Court) delivers 15,300 final decisions that would fall within the scope of the requirement in the Bill.

 They are made up of:

*       300 written decisions (reserved judgments), mainly delivered in the civil jurisdiction; and

*       15,000 transcribed oral decisions, including civil and criminal judgments, and sentencing notes.

 The District Court doesn’t publish its judgments online, because it does not have the judicial resource that senior courts have in the form of Clerks and other judicial staff.

This is the first problem. The publication of decisions should have been properly resourced from the beginning rather than be left to existing internal arrangements. That said, there is in existence a database of decisions available on the internal Court system where decisions are collected and indexed. This is done as decisions are transcribed either by the transcription service or Judges’ PAs.

 The sheer volume of decisions by the District Court alone make it difficult for every decision to be published, especially due to the fact 15,000 oral decisions would need to be transcribed, checked, and for each Judge to sign off on each decision before they are published.

Believe it or not a large number of decisions are transcribed and must be signed in hard copy by Judges. Included in these are decisions declining bail and sentencing decisions. If one looks at the proposed clause 401(3) the definition of a final written judgement reduced the volume quite considerably. I recall when we were discussing the publishing criteria for judgements in the early phases of the campaign for putting decisions online the test was “a final decision of a contested issue between the parties or the sentence imposed in criminal matters.” Furthermore the provisions of Clause 401(2)(a) – (c) provided a further filter. This seems to have been overlooked.

 The resourcing of staff alone to begin publishing final judgments would result in an increase of at least 10 FTE publication staff, at approximately $1 million. This does not take into consideration other staffing increases, training, overhead costs, equipment, and increases in workload. The vast majority of these decisions are also oral, meaning transcribing services would need to be resourced and serviced.

That is probably correct if it is done internally. Given that the Courts are an arm of Government I would have thought that the obligation of making law available to the people in a free and democratic society would be something that should be provided at a reasonable cost. In the overall scheme of things $1 million is a small price to pay for transparent justice.

 Considering there is essentially no precedent value (i.e. decisions do not bind the higher courts, and they are often just a straight declaration of sentence rather than reasoning) in the decisions made by the District Court, the time, effort and resource that transcribing would take would add little value to access to justice.

This is a red herring. True, the decisions of a District Court are not binding on the higher courts although they can be helpful if the issue has been considered below and needs to be critiqued on appeal or in other proceedings higher up the hierarchy. Precedent brings with it consistency, and a consistent approach has been a touchstone of our justice system. By and large, like cases should be treated alike. And so it is that the availability of District Court decisions enhances consistency. Not only do the public get a chance to see that a consistent approach has been adopted. Lawyers are able to access to database to properly advocate a position based on earlier similar outcomes thus maintaining and ensuring consistency.

I can recall that for many years counsel and law researchers have struggled with the fact that sentencing decisions of the District Court in Health and Safety prosecutions, Fisheries prosecutions and other prosecutions by Government departments have not been available so that a position may be advocated on the basis of earlier cases or clients can be advised of likely outcomes. A central database of decision would have been helpful in this regard.

Furthermore, to say that a sentencing decision is just a straight declaration of sentence rather than reasoning may happen for a run of the mill excess blood alcohol case, but the minute a judge is looking at anything more than a fine or low level community work, a complex analytical process is required involving identifying the circumstances of the offence, culpability levels, aggravating and mitigating circumstances both of the offence and the offender along with adjustments for guilty pleas, remorse and the like and stating them. All of these are very valuable in ensuring consistency of approach as appeal courts have often observed.

So to say that there is little value added to access to justice completely ignores the importance of consistency of approach in the decisions of the Courts which can be better informed by making decisions available online for the public and lawyers, rather than being closeted on an internal database.

 To argue that all 15,000 final decisions should be made online simply for the sake of it would require significant funds and resources. That would mean less money for supporting victims, putting police on the beat, and keeping our communities safe.

For the reason just articulated – consistency of approach – the decisions would not be there “simply for the sake of it”

 It’s worth noting that the judiciary have launched a new website (www.districtcourts.govt.nz<http://www.districtcourts.govt.nz>) which has started publishing judicial decisions from the District Courts. Criteria for publication in the criminal jurisdiction include sentencing notes and reserved decisions from judge-alone trials in cases of more serious offending, or cases where there has been discussion of high-level principles.

I have already commented on this. A commendable judge-led move but there are certain self-limiting factors imposed for the very reason the Minister identified earlier in her statement

All decisions resulting from proceedings brought under the Harmful Digital Communications Act will be published automatically because this is a requirement of that legislation.”

As they should be, along with all the other decisions of the District Court.

Is there an alternative way to comply with the former Clause 401? Yes there is.

Perhaps the Minister and her Department could have considered taking the online dissemination of judgments out of the hands of her Ministry and the Judiciary and, as is done in Australia and England where decisions are automatically made available to the Australasian Legal Information Institute (AUSTLII) or the British and Irish Legal Information Institute (BAILII), direct the necessary funding and the database of decision to the New Zealand Legal Information Institute (NZLII) who have established expertise in this area. The resources that would be freed up in the Ministry could be translated into funding for NZLII to provide the service. It is not hard. It has been done elsewhere. There is no need to re-invest the wheel. I have advocated such an outcome for years. Once again, an opportunity has been lost.

 

Live Streaming the High Court

The United States’ efforts to extradite Kim Dotcom and his associates from New Zealand has provided a fertile field for litigation and interpretation of the law. Issues such as the validity of search warrants and whether and to what extent there should be disclosure of information in addition to the Requesting State’s Record of the Case have been as far as the Supreme Court.

Last year the District Court conducted an Eligibility Hearing – a hearing which considers whether or not the Request for Extradition conforms with legal requirements. If so, the matter is passed on to the Minister who will make an Order for Extradition. The hearing concluded that Mr Dotcom and his associates were indeed eligible for extradition.

Unsurprisingly there has been an appeal against that decision, together with an application for judicial review and the appeal commenced before the High Court on 29 August. The case has been set down for four weeks

In yet another ground-breaking development an application to live stream the argument was made on behalf of Mr Dotcom and after argument and opposition from the United States, the application was granted, subject to conditions. The decision of Justice Gilbert can be found here.

This is the first occasion that the proceedings of the High Court have been live streamed – indeed, it is the first time that any New Zealand Court proceedings have been live streamed. There is a considerable amount of interest world-wide in the case, although that said it should be noted that the appeal is highly technical and involves lawyers putting their cases and developing their legal arguments. If you are looking for high drama this is not the place, but if you enjoy highly nuanced and carefully developed legal argument, it is certainly worth a look. The stream is on Youtube Live and the last URL is here.

Live streaming Court proceedings happens in other parts of the world. The UK Supreme Court live streams its  proceedings and archives them as well so that, as Lord Neuberger said, “justice may be seen to be done at a time that suits you.” Other appellate Courts live stream. The Ninth Circuit Federal Court of Appeals live streams argument – all part of open justice and bringing the proceedings of the Court to the people using new communications technologies.Courts such as the US Supreme Court have yet to follow.

Is this likely to become the norm in New Zealand? That is difficult to say. The In-Court Media Guidelines certainly don’t prohibit live streaming but whether or not we are going to see a live stream of a full-scale trial will depend upon a number of factors. An appellate argument involves only the lawyers. No one is giving evidence. There is no cross-examination. There are no issues of privacy or witness anonymity that could be claimed by participants – be they members of the jury or witnesses. A whole range of different factors will have to be taken into account.

Nevertheless, the decision to live stream in and of itself is significant and important. As an example of access to an arm of government – the Court in action – it is excellent and furthers the concept of open justice. It allows anyone with a computer and an internet connection anywhere to see the High Court in action conducting a hearing, minute by minute. That is a dramatic step forward in bringing the business of the Court to the people and is an example of the enabling power of the Internet – a great step forward for the New Zealand Courts.