Court Hearings and Covid-19 – Another View

Many of the concerns about the use of technology in Courts raised by Dr. James Farmer QC in his blogpost “Court Hearings and Covid-19” have been ventilated before. Rather like the Chief Justice his starting point is that technology compromises certain fundamentals that underpin our adversarial system.

The major premise of the post is that the use of virtual hearing technology – even if it were reliable which he claims it is not – is inherently unable to provide a top quality judicial process in certain categories of cases. Mr Farmer refers especially to lengthy complex trials, Court of Appeal Hearings and Supreme Court hearings.

His post notes that the Court of Appeal and Supreme Court issued a Remote Hearings Protocol providing for virtual hearings (Farmer uses the adjective euphemistically but the reason for that eludes me) Remote (or virtual) hearings are provided for during the various Alert levels and I recognise that this type of hearing will not be appropriate in all circumstances.

What critics fail to recognize when the issue of online courts or remote\virtual hearings is raised is that the proposals do not represent a shift away from what could be called the normal adversarial type of hearing. Rather, virtual or remote hearings provide another means by which justice may be delivered.

From the outset I agree, as I have said, that virtual or remote hearings may not be ideal for every type of case. But there are some cases for which they will be ideal. It is completely unnecessary for counsel to trail across town from their various offices to personally attend a pre-trial conference hearing. These have been done via teleconference for many years as Dr Farmer observes.

That the technology exists to allow a video appearance may enhance the process and allow for an additional nuance that is absence in a voice-only communication. That some attempts to engage in video conferences have encountered technological difficulties is to be expected in the early use of technology.

In my view the fact that Covid-19 has forced the Courts to utilize video technology more extensively beyond the use of the dedicated AVL system is an indictment upon lack of planning and innovation. These tools have been around for a while. They should have been deployed, used and had the rough spots smoothed long ere this.

The importance of process still remains in the virtual hearing. Although the participants may not be in the same physical or geographical location the hearing itself is centralized in that all parties can see one another and the exchanges that would take place in the same location still take place in the virtual space.

Openness is straight forward. Cases can be live streamed as was the case with the 9th Circuit Court of Appeals argument in State of Washington v Trump. In that case there was no courtroom. The judges were remotely located as were counsel. The audio of the argument was livestreamed. There were over 130,000 in the online audience – a few more than could sit in the courtroom in San Francisco. Similarly in New Zealand the arguments in the High Court in Ortmann v US – the Dotcom extradition case – were livestreamed on YouTube subject to certain directions from the Court. I think that we can safely say that there are technological solutions to preserve the openness of virtual hearings.

The importance of the “day in court” is present in the virtual hearing. Is it really necessary for all the parties and their witnesses to travel from their various geographical locations to a large, imposing and predominantly symbolic building, wait around for an ill-defined period of time to be heard.

The words “day in court” have become part of the popular lexicon but in fact represent another concept entirely and that is the wish, desire and indeed right of litigants to be HEARD. The importance of the day in court is the Court hearing – it is not called a hearing for nothing – and the words “Court hearing” in my view more correctly exemplify what the process is all about rather than the emotive use of the term “day in court”.

A further reality of the Court hearing is that what takes place is not an elegant forensic intellectual exercise, although it may be for some, but an process of information exchange and evaluation. In the final analysis that is what happens when client communications instructions, when a lawyer looks up a statute or a case, when that same lawyer provides advice to the client, when a lawyer files pleadings or submissions, adduces evidence from a witness or makes an argument in Court to the point when a Judge delivers a decision based on the information communicated.

In the past the nature of that process has been determined by the available technology. Pleadings were originally prepared by scribes but later were provided in typescript when the technology of the typewriter became available. Law reports did not exist until Plowden’s Commentaries in 1571 and before then the “reports” were handwritten notes circulated among coteries of lawyers. It took some time for reliable reports to be made available per medium the technology of the printing press. The photocopier has had an impact making it possible for multiple copies of papers to be provided along with voluminous attachments and cases, often to the dismay of the Judge. The mobile phone means that lawyers are available to clients 24/7 rather than Monday to Friday, 9 -5.

Yet despite the advances in communications technologies made available by developments in the Digital Paradigm, lawyers and judges seem unwilling to adopt and adapt to the new communications environment in the Court process and use new and innovative ways of doing what the job is all about – communicating information.

But in saying this I return to my major premise – not all cases are going to be amenable to virtual hearing tools.

There are some more fundamental issues that need to be considered – perhaps a little more significant than the image of the Court as a community centre or the idea that the only way we can achieve justice is by the physical presence of everyone in the same place at the same time.

The first – which has been highlighted by the Covid-19 crisis – is that of health, safety and associated with that, convenience.

Court houses are inherently unhealthy places to be – this before Covid-19. Large groups of people, many of whom are not able to afford medical care and may have communicable complaints or illnesses, are gathered together in waiting areas or courtrooms, counsel who must interview clients or take instructions in close quarters, jurors who are seated close to one another for extended periods of time – although I concede that jury trials of necessity must be in-person at this stage.

The convenience aspect, especially for busy lawyers in the District Court, has been exemplified by the use of remote hearings for administrative or routine matters which might earlier have required an appearance at several courts in, say, the Auckland region, but which can be dealt with expeditiously by a remote hearing where counsel does not have to leave the office. All “appearances” have been expeditiously completed in a morning – no travel involved.

A second aspect of the use of technology in Courts, highlighted by the Covid-19 crisis but not referred to by Dr Farmer, has been the development of ad hoc electronic filing solutions. I have referred to this in an earlier post.

All courts must have a record. These comprise the pleadings and associated documents and applications relevant to a case. In the past these records of court files were filed manually in hard copy across the counter. This still occurs although in many cases electronic copies may be sent to the court in PDF format as email attachments. In the Disputes Tribunal in New Zealand there is provision for creating an application using on-line forms. The e-document so created is then printed out and sent to the appropriate Court office, simply because there is not a system that allows for an electronic file (e-file).

As I have said, ad hoc e-filing solutions involving the use of attachments to emails, and, as proposed by the Defence Lawyers Association, the use of a dedicated email e-filing address, have been developed.

There is a solution that allows for the creation of an e-file that is readily accessible by the parties and the Court, that can be integrated into a courts management system, that is not “rule specific” in that it can be used within the context or court rules that allow electronic filing, that does not require major infrastructural changes or expense and that has been tried and proven in other jurisdictions.

The solution that I offered in my previous post and which I repeat here is Caselines which was developed in England. It is a document management and collation system that is Cloud based. A “file” is created by the appropriate Court and the parties, the lawyers, the Court staff and the Judge have access to the file dependent upon permissions.

The file is developed as the parties electronically transmit their pleadings and associated “documents.”  Evidence from a number of sources including multimedia can be filed with the bundle. Because everything is held on the one system, all the parties have access to the evidence at any time. Judges can review and make private annotations before and during the hearing.

Finally, Caselines is designed to assist counsel present their evidence and documents in such a way that as each document is reference it appears on the screens of all participants in Court. It can also allow consel to present or refer to documents from a remote location

Caselines involves the deployment of digital cloud-based systems as a means of replacing the clumsy morass of paper or PDF files on USB sticks that accompany Court proceedings. Caselines enhances the gathering and production of evidence during the course of a hearing.

It is not an aspect that challenges the “presence-based” model of the Court although it could be deployed during the course of an on-line hearing. It is also an element whose deployment, although prompted by Covid 19 would have continued use and relevance in the post Covid 19 environment.

A third aspect of virtual or online hearings is that of relevance to users. I have written on this aspect in an earlier post, but what I said then bears repeating.

Although the panoply of justice and the “majesty of the law” aspects of public performance may serve some ceremonial or symbolic purpose they are not necessary to the proper and efficient delivery of justice services. Indeed the use of those last two words recognizes that in fact Courts deliver a service to the community and for the purposes of maintain the Rule of Law must continue to do so.

Societal lockdowns, social distancing, limitations on movement, proper hygiene and the need for continued cleanliness means that the “Court as a Place” model may no longer fit social and societal expectations as a result of the onset of COVID 19 and its aftermath which will be with us for some considerable time..

The Rule of Law in our society is essential. We need to reimagine some of our processes to cope with the “new normal” forced upon us by COVID 19. We need to be innovative and proactive in terms of solutions. We need to look at issues in terms of “how can this work” rather than finding reasons for “why it cannot” or remaining wedded to archaic business models because they are what have been used is the past and fulfil some imagined level of near perfection.

We need to ensure:

a. Public confidence in the system; and

b. Associated with that a recognition that Courts are responding effectively to the crisis; and

c. That the solutions offered are relevant to present and future circumstances.

I shall expand on the last item.

Whether we like or not, new technologies have been having an impact upon our behaviour and upon our attitudes to and expectations of information.  All senior members of the profession and the Judiciary grew up in the pre-digital age. We are digital immigrants. 

Those who were born after 1985 are generally referred to as digital natives.  They have known no other communication system than that of the internet and are intimately familiar with and, indeed, dependent upon devices for the receipt of information and communication. Thus, their expectations of the way in which information systems are deployed is quite different from those of who are digital immigrants.

It may be considered laughable or at best quaint that the court should be a place where the requirement to be physically present for the disposal of court business, particularly when there are other communications systems that are available. One must express some concern that if the court process is not seen as relevant to modern technologies and modern means of communication, where then will lie respect for the Rule of Law?

The assumptions that underly the elements of public demonstration and public participation are all based upon a view that these are the only ways of achieving objectives.  In the minds of the coming generations, such attitudes could be seen at least as quaint and, at worst, as no longer relevant.

Therefore, whilst I applaud and support the necessity for the care that must be employed in evaluating the applicability of new technologies to the court and to the justice system, I question whether the importance of the personal participation element is over-rated and of diminishing relevance. The onset of COVID 19 places the issue of relevance of personal presence and the ability to be “present” virtually into sharp focus.

Put simply the requirement for personal presence gives way in the face of the health risks to those who have business before the Court. This has been recognised by the fact that the Courts were closed to members of the public whose presence is not required for the business of the Court.

Covid 19 – whatever the Alert level – presents us with a challenge to continue to deliver Court services – for it must be plain by now that the new reality must recognise that Courts provide a service. In my opinion the use of digital and communications technologies allow us in part to meet that challenge.

The tools and means are available. They can be added to and become part of the processes that are important in the justice system.

Courts and Covid 19: Delivering the Rule of Law in a Time of Crisis

“Some men see things as they are and say why? I dream of things that never were and say why not?[1]

Introduction

In this post I consider the effects of the Covid 19 pandemic upon the operation of the Courts and the delivery of Justice services in New Zealand. I argue that Covid 19 has demonstrated the fragility and fallibility of the physical presence “Court as a Place” model of justice services delivery.

I suggest that technology can be deployed to meet the challenges of Covid 19 and presents us with an opportunity to remodel the delivery of Court services so that elements of the Rule of Law and protected along with the physical safety and health of all participants.

Recent legislative changes following the invocation of the Epidemic Preparedness Act 2006 give Judges the power to be innovative in the way in which proceedings may be conducted in this time of crisis. The steps taken now may be an open door to things that previously never were.

The Physical Presence Model

Covid 19 has challenged many of the aspects of and assumptions that we have about the delivery of justice through the Court system. Some of these aspects and assumptions were outlined by the Chief Justice in a paper to the Australasian Supreme and Federal Court Judges’ Conference in Canberra on 20 January 2020.  It was entitled “A Framework for the future; Technology and the Rule of Law”.

She identified elements such as the importance of the Courthouse to the Rule of Law, the court hearing as a public demonstration of the Rule of Law in action and public hearings which exemplify fairness and legality. These three elements are all part of what could be described as the “Court as a Place” or “physical presence” model of the delivery of justice.

COVID 19 challenges this “physical presence” model. The way in which the virus spreads, its apparent virulence, the requirements for reduced opportunities for gatherings and the need for what is referred to as “social isolation,” the restriction on movement of participants based on age means that the physical presence aspect of human interaction in a courtroom in a courthouse render the “Court as a place” model of delivery of justice services becomes untenable. Indeed on 26 March 2020 the unprecedented step was taken to close the District Court and High Court to members of the public whose presence is not required for the conduct of the day’s business in the interests of public safety.

Covid 19 demonstrates the fragility and instability of the Court system as a means of justice delivery, using a “presence” based model. What was thought to be as solid as some of the architectural and symbolic representations of the Court has proven to be at risk because of the nature of a virulent disease and an apparent reluctance in the past to confront the winds of change and take up the opportunities that new technologies present.

Remote participation to the limited extent that audio-visual links allows and the use of electronic books – a digital mirror of the old Eastlight file – are a start but sadly are constrained by an infrastructure that is not fit for purpose.

Public Confidence, Responsiveness and Relevance.

Although the panoply of justice and the “majesty of the law” aspects of public performance may serve some ceremonial or symbolic purpose they are not necessary to the proper and efficient delivery of justice services. Indeed the use of those last two words recognizes that in fact Courts deliver a service to the community and for the purposes of maintain the Rule of Law must continue to do so.

Societal lockdowns, social distancing, limitations on movement, proper hygiene and the need for continued cleanliness means that we must look for other solutions for the delivery of Court services. In re-evaluating what it is that Courts do, the “Court as a Place” model may no longer fit social and societal expectations as a result of the onset of COVID 19.

The Rule of Law in our society is essential. We need to reimagine some of our processes to cope with the “new normal” forced upon us by COVID 19. We need to be innovative and proactive in terms of solutions. We need to look at issues in terms of “how can this work” rather than finding reasons for “why it cannot.”

We need to ensure:

  • Public confidence in the system; and
  • Associated with that a recognition that Courts are responding effectively to the crisis; and
  • That the solutions offered are relevant to present and future circumstances.

Allow me to expand on the last item.

Whether we like or not, new technologies have been having an impact upon our behaviour and upon our attitudes to and expectations of information.  All senior members of the profession and the Judiciary grew up in the pre-digital age. We are digital immigrants.  Those who were born after 1985 are generally referred to as digital natives.  They have known no other communication system than that of the internet and are intimately familiar with and, indeed, dependent upon devices for the receipt of information and communication. Thus, their expectations of the way in which information systems are deployed is quite different from those of who are digital immigrants. 

Their attitude towards the symbolism of the court is that the court is a place where the requirement to be physically present at a certain place for the disposal of court business may be seen as laughable, particularly when there are other systems that are available. One must express some concern that if the court process is not seen as relevant to modern technologies and modern means of communication, where then will lie the respect for the Rule of Law?

The assumptions that underly the elements of public demonstration and public participation are all based upon a view that these are the only ways of achieving objectives.  In the minds of the coming generations, such attitudes could be seen at least as quaint and, at worst, as no longer relevant. 

Therefore, whilst I applaud and support the necessity for the care that must be employed in evaluating the applicability of new technologies to the court and to the justice system, I question whether the importance of the personal participation element is over-rated and of diminishing relevance. The onset of COVID 19 places the issue of relevance of personal presence and the ability to be “present” virtually into sharp focus.

Put simply the requirement for personal presence gives way in the face of the health risks to those who have business before the Court. This has been recognised by the fact that the Courts are closed to members of the public whose presence is not required for the business of the Court. Covid 19 present us with a challenge to continue to deliver Court services – for it must be plain by now that the new reality must recognise that Courts provide a service. In my opinion the use of digital and communications technologies allow us to meet the challenge.

We need to recognise that we must reduce as far as possible physical human interaction in Court processes. Electronic filing using the Internet and Cloud based systems mean that physical documents need not pass over a Registry desk and there is an absence of any need to handle paper or other physical objects that can transmit disease.

E-Filing and E-Bundles as a Solution

All courts must have a record. These comprise the pleadings and associated documents and applications relevant to a case. In the past these records of court files were filed manually in hard copy across the counter. This still occurs although in many cases electronic copies may be sent to the court in PDF format as email attachments. In the Disputes Tribunal in New Zealand there is provision for creating an application using on-line forms. The e-document so created is then printed out and sent to the appropriate Court office, simply because there is not a system that allows for an electronic file (e-file).

There is a solution that allows for the creation of an e-file that is readily accessible by the parties and the Court, that can be integrated into a courts management system, that is not “rule specific” in that it can be used within the context or court rules that allow electronic filing, that does not require major infrastructural changes or expense and that has been tried and proven in other jurisdictions.

The solution that I offer is Caselines which was developed in England. It is a document management and collation system that is Cloud based. A “file” is created by the appropriate Court and the parties, the lawyers, the Court staff and the Judge have access to the file dependent upon permissions.

The file is developed as the parties electronically transmit their pleadings and associated “documents.”  Evidence from a number of sources including multimedia can be filed with the bundle. Because everything is held on the one system, all the parties have access to the evidence at any time. Judges can review and make private annotations before and during the hearing.

Finally, Caselines is designed to assist counsel present their evidence and documents in such a way that as each document is reference it appears on the screens of all participants in Court. It can also allow consel to present or refer to documents from a remote location

In many respects this is a neutral element of the system. It involves the deployment of digital cloud-based systems as a means of replacing the clumsy morass of paper that accompanies Court proceedings and enhances the gathering and production of evidence during the course of a hearing. It is not an aspect that challenges the “presence-based” model of the Court although it could be deployed during the course of an on-line or asynchronous hearing. It is also an element whose deployment, although prompted by Covid 19 would have continued use and relevance in the post Covid 19 environment.

Technology and the Asynchronous Hearing

My next suggestion challenges the synchronous model of the Court hearing.

In our present system the court as a place is central.  It is necessary for all of the parties, their witnesses, their lawyers and the Judge to be available at the same place and at the same time.  Thus, the hearing takes place synchronously and must take place within time allocated or any additional time that may be available. 

Bringing everybody together at the same place and at the same time is one of the difficulties of bringing a case to some form of finality by way of a hearing. Even a hearing where all the parties are remotely present via videolink suffers from this deficiency.

Professor Richard Susskind proposes[2]  in his discussions about Online Courts that there be asynchronous hearings, which means that utilising technology one party may give evidence at a time that is convenient to him or her and for the Judge.  The other party may be present in the virtual sense to hear that evidence.  At a later time, that other party would have a right of reply.  It would mean that the hearing would proceed in fits and starts, a process that is not unknown to current judicial decision-makers and lawyers.  It does involve something of a major cultural shift within a system that has become used to having a court case start at the beginning and carry on through until the end – a synchronous process. 

The advantage of the a-synchronous hearing is that it does not necessarily involve everybody being in the same place at the same time. They can be “virtually” present. It is in this respect that Professor Susskind develops his concept of the court as a service rather the court as a place, because technology can allow the asynchronous hearing to take place, even although the parties are not physically in the presence of one another.

The synchronous hearing has been supported in the past because that is the way court cases have been conducted in the past. The focus of the parties and the tribunal is upon the one matter. The model is akin to that in Alice in Wonderland “Begin at the beginning,” the King said gravely, “and go on till you come to the end: then stop”.[3]

The reality is that the focus is never as tight as that. The parties go home at the end of the day and attend to their affairs. The lawyers deal with other matters in their caseloads. The judge works on a reserved decision in another case. In this respect a certain level of ascynchronicity is already present in a Court case even although the matter may proceed over the course of consecutive days or weeks.

The asynchronous hearing challenges the “presence-based” model in that the hearing may take place over a period of time at the convenience of the parties and their lawyers, dealing with certain issues or evidence on a step by step basis. The use of technology – notably audio-visual links or AVL – means that place does not matter.

It may well be that this model of hearing may be more appropriate for a civil case rather than a criminal one. Yet it is my view that criminal cases could and should be considered for full remote presence hearings with perhaps a facility for private communications between client and counsel.

Objections to this method of proceeding are probably a mixture of cultural practice and habitual training. It is never easy to change a “traditional” way of doing things, but disruption always accompanies technological change. In the same way that many commercial and governmental operations have changed process to adapt to new technologies and the saving and convenience that accompany them, so too the legal profession and the Court system must adapt to remain relevant and credible. There is nothing new about the law’s delays. Hamlet complained of them in 1599.

What is remarkable is that over half a millennium later we have a chance to tackle such problems, yet seem to find reasons for not doing so. The onset of Covid 19 means that remote asynchronous hearings may prove an alternative to the unhealthy, physical presence synchronous model that we presently have.

It is acknowledged that the asynchronous hearing challenges the public administration of justice, the importance of the courthouse as a symbol and the court hearing as a public demonstration of the rule of law – what may be described as the performative aspect. Nevertheless it is incumbent upon the Courts to respond to new challenges, including those involving the health of participants. There is still participation. There is still an opportunity to be heard and for a decision maker to actively participate. It does not require all persons to be present in the same room for a Judge to be seen to pay equal attention to the arguments of each side.

In many respects these presence-based arguments are of a cultural nature that have developed over a period of centuries.  They have developed within the context of the availability, or lack of availability, of different systems of communication.  The oral hearing arose because that was the only way in which a dispute could be litigated as the court system was developing many centuries ago. Times have changed – changed utterly and the Courts must change with them.

The Hearing Technology

The provision of AVL for Court hearings is premised upon a “presence” model and the “court as a place” still prevails. There are shortcomings with the technology in terms of quality, ability to effectively communicate and technological protocols that could be improved.

For all participants to be “present” remotely some other solution that does not envisage or require a central location must be deployed. The necessary documents and other materials would be available via the Cloud-based document system described above. One solution that provides a workable model is Microsoft Teams. Teams at its most basic operates as a messaging app but can act as a remote working and conferencing application that allows all participants to be “present” in the one conference area. The only difference between that and a court is that the participants would be remotely located.

Another solution may be found in the videoconferencing application Zoom which can be used for webinars, conferences and meetings. When one reduces it to its most fundamental element, a court hearing is no more and no less than a meeting, albeit of a rather formal and ritualised nature.

Teams, or indeed any “off the shelf” solution such as Zoom would not have infrastructure requirements other than the Internet. It could be run independently of the Courts network. Teams and Zoom allow for the creation and retention of a record of the hearing including audio, video and screen sharing. It would allow for hearings to take place without putting the participants at risk.

Although the infrastructure of the New Zealand Ministry of Justice was deployed, on 26 March 2020 the guilty plea of Brenton Tarrant, the 15 March 2019 Christchurch terrorist, was taken by video link. Despite the lockdown the Judge and Crown counsel were present in Christchurch. Defence counsel were present by video link in another courtroom. The prisoner was “present” via video link from prison. The video may be found here https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12320188

Using different systems such as Zoom or Teams there was no need for any of the participants to have been at any Courtroom.

The opportunity now presents itself for Judges to take a lead in the current crisis and continue to deliver justice services remotely. The invocation of the provisions of the Economic Preparedness Act 2006 and a very swiftly enacted amendment mean that any administrative difficulties posed by the current Rules of Court may be modified suspended or waived. The power given to Judges do not include the power to vary the requirements of a statute, but the provisions of the Courts (Remote Participation) Act 2010 already allow for remote hearings in many cases.

What we do now could provide a proven working model for the future delivery of Justice services post Covid 19

Conclusion

It is one of the functions of the Rule of Law to provide an effective and accessible means of resolving disputes. Inevitably this involves an exchange of information and in the past, that has been what takes place in a court – an information exchange about a dispute that leads to a resolution by a decision-maker.

Communications technologies and digital communications technologies have evolved to the point that a wide variety of means of communication of information are now available. It seems counter-intuitive for the Justice system to rely on one model when there are a variety of opportunities available.

My proposals do not dispense with the fundamentals that underly the Rule of Law. I realise that in many respects these proposals have significant elements present in Professor Susskind’s Online Court but with wider application than small civil claims.

I would suggest that they enhance the Rule of Law and allow the justice system to appear relevant rather than a quaint way of resolving disputes that the protagonists of Bleak House would recognise and would provide workable solutions for the continued delivery of Courts services in the Covid 19 environment.


[1] Attributed to Robert F Kennedy paraphrasing George Bernard Shaw Back to Methuselah where the Serpent said “You see things; and you say, ‘Why?’ But I dream things that never were; and I say, ‘Why not?’”.

[2] Richard Susskind Online Courts and the Future of Justice (Oxford, Oxford 2019)

[3] Lewis Carroll “Alice’s Adventure in Wonderland” Chapter 9

Paperless Lawyers, Paperless Courts

A temptation for lawyers is to use technology to mirror paper-based practices. Technology merely means that the screen becomes the functional equivalent of paper and underlying behaviours relating to information do not change. What should make the utilisation of technology different is that underlying the functional equivalent of a paper based file are all the tools and advantages that digital technologies can bring such as indexing searching on the fly annotating and so on.

Andrew Downie, a lawyer in Victoria, Australia, in February of 2014, blogged on the creation of an electronic brief – ahandy “how to” guide focusing particularly upon methods of converting documents and organising them using a computer system.

But electronic case files are not the exclusive preserve of counsel. In New Zealand there are several practice notes on the utilisation of electronic bundles of documents in court.  The Senior Courts Civil Electronic Document Protocol addresses the use of electronic documents in the Higher Courts in New Zealand. The Electronic Document Practice Note 2017 is intended to encourage and facilitate the use of electronic documents for civil cases in the Court of Appeal. The 2016 Practice Note “The Use of Electronic and Common Bundles and Electronic Casebooks in the High Court” sets out guidance about when an order should be made for a common bundle and/or casebook to be filed electronically in the High Court and the default directions that apply. It is to be read and interpreted consistently with the Senior Courts Civil Electronic Protocol.

The concept of functional equivalence is to the fore and it seems to me that one of the purposes of the practice note and the move towards electronic bundles is to save space and paper. This is consistent with the imitative approach adopted in the Electronic Courts and Tribunals Act 2016 (NZ) about which I have blogged here.

What the practice notes do is provide an electronic platform for the assembly of bundles of documents but by doing so it also enables counsel to utilise technology to enhance case presentation and argument.  None of this of course is specified in the practice notes which are designed to encourage and facilitate the use of electronic bundles the various Courts.  The fact of the matter is, however, that by virtue of the advantages bought by the technology, counsel may be creative in the way in which the electronic bundle is utilised.  One of the requirements of the electronic bundle is that all documents be scanned into OCR format.  One would think that it would be unnecessary to have such a requirement, and that rendering pdf documents searchable would almost go without saying but regrettably it needs to be emphasised.  This effectively means that the information in the document may be subject to search and manipulation in a way that would not be possible in mere image format.

The practice notes make it clear that electronic bundles will not be used in every case.  They will only be used in document intensive cases where the common bundle would be likely to exceed a certain number of pages.

In “building” in electronic bundle documents must be contained in electronic folders equivalent to the physical volumes of hard copy bundles and within those folders each separate document must be a multipage pdf document.  Each folder must be named with an appropriate description and if there is more than one volume of a particular electronic bundle the folder for that type of bundle will include subfolders for each volume.  The rules also provide for electronic bundles in document intensive criminal cases.

One of the difficulties in using electronic bundles effectively lies in the fact that the majority of advocates have been bought up in the paper based environment and find it uncomfortable or difficult to make the shift into the digital paradigm with the changes in thinking that such requires.  The concept of functional equivalence gets in the way.  One uses technology merely to mirror what one would normally do with paper rather than utilise the technology to its fullest capacity.  Often software packages will themselves create difficulties.  Some software packages make it almost impossible to move from page to page without entering a code or a key.  Other software packages allow for the utilisation of barcodes whereby documents could be selected and projected using a barcode scanner but the simple fact of the matter is that counsel don’t utilise that aspect of the technology which would save considerable time and effort in moving through document intensive cases.

The various electronic document protocols effectively replace the lever arch paper folder with a USB stick or other form of storage medium. Lawyers and judges maintain an informational distance as a result. Each participant has to locate the “document” the subject of the discussion on his or her own device. A centrally located document bundle to which every participant has access and which can be displayed in Court would expedite matters. Such a tool is available in the form of Caselines which is effectively a digital court platform.

Caselines does not require software or infrastructure. It is a cloud based solution. To connect to a Caselines bundle for a trial or hearing all that is needed is a wireless connection at the Court.

Caselines bundles may be created by the parties or by the Court. Participants in a case have access to the bundle with varying levels of credentials. There are a number of different types of functionality including the ability to make notes, mark up and, importantly, to allow counsel who is referring to a document, image, video or other piece of digital material to make that available to all the participants in the case simultaneously. This means that everyone is on the same page, literally. Caselines is now used throughout the Crown Courts in England and Wales for criminal trials. Digital is the default position. Paper is no longer used

The Digital Paradigm allows lawyers to devise their own means of employing electronic technologies in the practice of law and the Courts judges in the management and presentation of cases.  What will be interesting to see is how courts and judges will respond.

But to make that leap it is necessary to examine some fundamental premises and reasons for why it is that we conduct cases in the way that we do. I have written elsewhere that the practice of law is really an exercise in information exchange, be it by way of receiving instructions from the client, processing those, seeking an information flow from research and communicating the results of that to the client by way of advice, or by way of a case in court where information flows come from witnesses whose information is assessed for relevance and reliability and which in turn inform the decision-maker’s decision which is them communicated to the parties and often to a wider audience by means of digital publication systems or by reporting in the law reports.

In court the information flows were oral exchanges. Indeed, written pleadings were not a part of court procedure until the reign of Edward IV, and most of the cases noted in the Year Books dealt with the technicalities of pleading rather than reports of decisions on substantive points of law. The first reports that revolutionised the way in which cases were recorded were those of Edmund Plowden, first printed in 1571. But the way that cases were presented in court was largely an oral process with witnesses orally stating what they saw or did and the lawyers making their points by oral rather than written argument. Or at least that was the case in the Common Law courts. Prerogative courts such as Star Chamber and the Courts of Chancery used the written record more extensively, albeit a handwritten one.

(For a full description of Star Chamber procedures see Thomas G. Barnes “Due Process and Slow Process in the Late Elizabethan – Early Stuart Star Chamber” (1962) 6 American Jnl of Legal History 221)

But despite the apparent written procedures adopted by Star Chamber and the Chancery Courts, much of the information exchange remained an oral..

The oral nature of information exchange in court over the centuries requires the physical presence of the “players” in the one place – the Courtroom. Indeed it has not been until comparatively recently – and by that I mean since I was admitted to the Bar in 1970 – that judges have countenanced and encouraged the provision of arguments in writing. These may range from the massive briefs that characterise written argument in the United States to the much smaller outline style  “skeleton arguments” in England. Indeed in some appellate jurisdictions – again predominantly in the United States – oral argument is time limited, demonstrating a declining emphasis upon oral argument in favour of documentary material. Yet despite the brevity of oral argument, physical presence is still required.

Another Form of “Presence”

Technology is changing this and there is a declining emphasis on actual physical presence following upon the introduction in New Zealand of the Courts Remote Participation Act 2010 which allows for “presence” of a participant by way of audio-visual link.(AVL) In the majority of cases in the District Court the participant “attending” by way of AVL will be a  defendant who is in custody. I haven’t yet come across the case where counsel has sought to be present by way of AVL and perhaps the custodial remand focus of the technology deployed in New Zealand Courts is responsible for that, although there is nothing in the legislation which excludes the use of Skype or Facetime. I imagine that all that is required for a lawyer and a Judge to break the ice.

The issue of physical presence is one part of the expanded use of technology in case presentation. At the moment document management technology is used in document intensive cases where scanned copies of documents are assembled and presented on screens by means of software tools. I interpolate to express wry amusement that documents are scanned into these programmes rather than using software tools which allow “document” assembly of digital documents in native file format, but perhaps that is yet to come. That is fine as far as it goes.

What about expanding the scope of the hearing so that by using “presence” technology such as AVL – or perhaps, in the future, holography –  counsel may run the case remotely. Where there is a need for text based information to be presented (what we call “documents”, retaining our paper based language despite attempts by legislators to include any information however recorded as fulfilling the definition of a “document” but why retain the use of a word which conceptually is associated with hard copy media?) that can be communicated to the court by electronic means. Witnesses can be present by AVL links. The range of information that is communicable or admissible to inform the Court’s decision could include multimedia, 3D imaging, maps or satellite shots from Google Earth or Street View. All the clumsy time consuming methods currently employed for evidence presentation could be significantly more efficient without compromising information flows or the ability of fact finders or law deciders to reach a conclusion.

Our “presence based” focus has its roots in rituals which, with modern communications technologies, can no longer be justified.

These ideas may seem to be radical – perhaps revolutionary – but the reality of the fact is that we are and will continue to be for some time in the midst of an information technology driven by continuous disruptive change. It is incumbent upon lawyers, judges and those involved in the information exchange process that underlies the activities of all lawyers to maximise and deploy these new technologies.

CTC 2017 – The Online Court

This year I was invited to present a paper at the National Center for State Courts biannual conference – Courts Technology Conference 2017. I was asked to present a paper on the development of the Online Court project in England and some of the thinking behind that project.

I have had an interest in this project since Professor Richard Susskind’s report on February 2015 and have followed the reports issued by Lord Briggs. There are two things of particular significance.

The first is that the project demonstrates the disruptive effect of technology and the way in which the deployment of technological solutions may result in quite significant changes in process without destroying or compromising the underlying  philosophies of a just system of dispute resolution provided by the State.

The second thing is the types of technology that may be deployed to make the online court work. The paper I prepared for the Conference looked at these two aspects of the matter along with a consideration of some of the positives and potential negatives of the project. Most of the negatives are in fact answerable.

The technological solutions that I considered were conceptual only and I wish I could have attended the July Online Courts hackathon in London. It is highly likely that the technical section of my paper would have had a completely different approach.

Here is a copy of the paper:

The powerpoint slides that were a part of the presentation follow

The session was live streamed and recorded and the video follows

I hope that this material is useful.

 

Imitating Paper

The Electronic Courts and Tribunals Act 2016

The purpose of the Electronic Courts and Tribunals Act 2016 is to enable and govern the use of electronic technology in court and tribunal proceedings. It is overarching. All paper based processes in existing courts and tribunals may be interpreted as allowing electronic processes.
The Electronic Courts and Tribunals Act is posited upon the concept of functional equivalence – a theory which gives legal recognition to recording systems and their validation in a format other than paper. The Act in many respects reflects the principles that appear in the Electronic Transactions Act 2002 which did not apply to the Court system.
A central focus of the legislation is upon what is called a permitted document. The term “permitted document” means a document, including its associated process, in electronic form that is made by, or for use in, a court or tribunal. The purpose of the legislation is to facilitate the use of permitted documents in court and tribunal proceedings and allow existing references in enactments to documents to include permitted documents.
Not all documents are permitted documents and the legislation at section 4(2) lists those that do not qualify. These are:

(a) a document given on oath or by affirmation:
(b) a statutory declaration:
(c) a will, a codicil, or any other testamentary instrument:
(d) a power of attorney or an enduring power of attorney:
(e) a negotiable instrument:
(f) any notice required to be attached to any thing or left or displayed in any place:
(g) any warrant or other instrument authorising entry into premises or the search or seizure of any person or thing:
(h) any other document specified by the Governor-General by Order in Council made on the recommendation of the Minister:
(i) an item specified in any of paragraphs (a) to (h) that is required to be served by personal service.

The legislation effectively recognises that verification and authenticity of information contained in these classes of documents may only be provided by a tangible paper-based medium.
The Act does not mandate the use of electronic documents, although certain classes of persons yet to be defined in regulations may be required to use them.
The use of permitted documents requires the consent of the person using them although consent can be inferred from conduct. A person may not be compelled nor directed to use permitted documents. Thus, unless a person consents to the use of permitted documents it is paper by default.
Where there are requirements for information to be recorded, be in or be given in writing that information may be in a permitted document as long as it is readily accessible and useable for subsequent reference. This means that an electronic document must be accessible in the sense that it is not in archived or backup format and can be accessed presumably in native file format.
The legislation does recognise the dynamic nature of digital information and the reality that multiple copies may be made of a digital document that are identical to the “first” or source copy.
Where there is a requirement that multiple copies of information are to be provided, that requirement is met by providing a single electronic version of a permitted document and a requirement to provide information in a manner that complies with a paper based form met by permitted document if information is readily accessible and usable for subsequent reference.
Authentication and signature requirements provide a challenge for those used to verification of a document or its contents by a physical kinetic act such as affixing a seal or sign manual. How is that accomplished in a digital context?
Signature requirements for permitted documents are addressed in section 16 of the Electronic Courts and Tribunals Act 2016. An “electronic signature” or verification must adequately indicate the approval of the information and must be “as reliable as is appropriate given the purpose for which, and the circumstances in which, the signature is required.”
Importantly, electronic verification of a document is subject to an exception when one is witnessing a document. Witnessing requirements in a permitted document are met by an “electronic signature” if

a) The e-signature complies with the requirements of section 16
b) The e-signature adequately identifies the witness and indicates that the signature or seal has been witnessed
c) The e-signature is “as reliable as is appropriate given the purpose for which, and the circumstances in which, the signature is required.”

If a permitted document requires a seal, that requirement may be met by an electronic seal if

a) The seal adequately identifies the party attaching it and
b) “is as reliable as is appropriate given the purpose for which, and the circumstances in which, the seal is required.”

The language echoes that dealing with electronic signatures. It is to be noted that the requirements for electronic signatures and seals refer to the issue of reliability. Section 19 of the Act sets out certain presumptions as to reliability and an electronic signature is presumed to be reliable if:

(a) the means of creating the electronic signature is linked to the signatory and to no other person; and
(b) the means of creating the electronic signature was under the control of the signatory and of no other person; and
(c) any alteration to the electronic signature made after the time of signing is detectable; and
(d) where the purpose of the legal requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing is detectable.

However, any other way of establishing reliability is not excluded and may be used.
The Act also sets out rules for the retention of permitted documents , for the dispatch and receipt of permitted documents. These provisions duplicate the provisions of the Electronic Transactions Act 2002. The filing requirements dispense with the requirement that a document be filed in a particular office of the Court and allow for the filing of a permitted document at any place specified in the regulations. In addition the place for filing may be physical or electronic and may be centralised or located within the jurisdiction of the Court or Tribunal.
Some important observations need to be made.

1. Although the Act has commenced it is not operative. Section 6 requires the Governor General by Order in Council made on the recommendation of the Minister to specify the Courts, tribunals or particular jurisdictions of Courts and Tribunals to which the Act applies. As matters stand, no such Order has been made. Once proper systems are in place to handle electronic filing the necessary orders will be made.

2. Will the Act significantly change Court processes. Except for the changes to place of filing rules, things will largely remain the same. This is because the legislation is imitative of existing processes. Imitative use of technology preserves existing processes and procedures but allows the same objectives to be achieved by electronic means. On the other hand the innovative use of technology allows for the introduction of disruptive and different procedures and processes enabled by the new technologies which ultimately result in a transformative and improved outcome.

3. Thus the legislation maintains the model of the paper based court system and adds a limited form of digital communications in the form of permitted documents – an electronic equivalent of paper.

If it was the intention of the Legislature to maintain the model of the paper based court system and add a limited form of digital communications in the form of permitted documents, the Electronic Courts and Tribunals Act has succeeded. But in reality the Act neither lives up to its name nor its promise. It does not, as its name might suggest, create or enable fully electronic courts or tribunals. All it allows is an electronic equivalent for paper. All the legislation does is to imitate paper.

From Theory to Practice – Software Models and Evidence for the Online Court

In the paper below I look at some of the ways in which technology may be applied to proposals for on-line Courts.

The proposals by Richard Susskind the JUSTICE paper and Lord Justice Sir Michael Briggs are based upon the availability of technical solutions to fulfil the promise inherent in the new models for resolving disputes. I emphasise that in using that phrase I envisage, as did Professor Susskind, the dispute resolution model to function within the established Court process rather than as a stand alone alternative to the Court process.

A consideration of the deployment of technology within the Court process first requires a recognition of the way in which technology can reflect or replace current processes. The Online Court proposals that have been put forward suggest significant process change but represent high level strategy. What I consider is a slightly more practical overview of some of the ways in which technology may be deployed. In addition there are issues surrounding the handling of digital evidence which will require consideration.

 

Information Governance and E-Discovery

In May of 2015 I had the pleasure and honour of sharing the stage with Chief Magistrate Judge Elizabeth Laporte at the IQPC 10th Anniversay Information Governance and eDiscovery Summit held at the Waldorf Hilton in London. The session was chaired by Chris Dale of the excellent and continually informative Edisclosure Information Project and addressed the Global Impact of eDiscovery and Information Governance within the context of data collection for cross border cases.

The session was allocated a generous ninety minutes of Conference time, starting shortly after 9:00 pm. This enabled the presenters to make a brief presentation on issues that appeared to be relevant to the general topic. My presentation addressed common themes present in the e-discovery regimes in the APAC region – Australia, Singapore, Hong Kong and New Zealand.

Following the presentations Chris led a discussion that covered a wide range of discovery and disclosure issues. The approach of the US Courts recently exemplified by the case of In the Matter of a Warrant to Search a Certain E-mail Account Controlled and Maintained by Microsoft (District Court SDNY M9-150/13-MJ-2814 29 August 2014 Judge Preska).

One of the common themes emerging from this discussion was that although a local court may purport to exercise “long arm” jurisdiction in the case of content located off-shore, compliance with local data disclosure requirements may come into play, rendering the disclosing party liable to possible sanctions if compliance is not forthcoming.

Another issue that we discussed was that of the need for lawyers to understand and appreciate the way in which technology is used in developing areas of law and in the ediscovery field in particular. In the United States an understanding of technology is a pre-requisite for competence to practice in some areas and as we move further and deeper into the Digital Paradigm, I consider this to be an absolute necessity. Not only lawyers. More and more cases involve aspects of technology either as the subject matter of the dispute or as an aspect of the evidence that is place before the Court. It is essential that Judges have a working knowledge of some of the more common information technologies. This is something of a contentious issue for there is a school of thought that suggests that judicial understanding of technology can be reached per medium of expert evidence. That proposition may have a limited degree of validity in the case of the subtle aspects of the workings of the technology, but should not extend to ocnstant and repetitious explanations of the general way which a packet switching network operates, or the nature of email metadata and how it operates.

The Conference was a valuable one. The sessions were extremely interesting and highly relevant, all of them presented by experts in the field. I am grateful to the organisers for inviting me and to Chris Dale for his excellent Chairmanship of our session and his insightful discussion management.

I prepared a paper for the Conference delegates and a copy is available on Scribd or may be perused here.