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.

 

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Accessing Justice

I write this on 1 September 2017 and New Zealand is in the throes of an election campaign. I dislike the way that this has all developed. The politics of personality rather than policy seem to predominate. The news media whip themselves up into a frenzy – speculating on poll outcomes, the shape of Parliament with little thought about what is going to happen to the country as a whole. Because of our bizarre electoral system deals have to be struck which could mean that a minor party often gets the final say on which party governs.

The contest is between two centrist parties. National is slightly to the right of centre – Labour to the left. National can point to a record of experience in government – the last nine years on the Treasury benches. Labour can point out all the things that have gone wrong or which have been left unattended – not the least among them problems with sufficiency and cost of housing and associated problems of inequity within society. One thing you can guarantee with Labour is that they will spend more taxpayers money and they will put up taxes. With one exception in the 1980’s this has been their model.

Both parties have an unspoken premise and that is that they advocate social justice and that is generally achieved as far as National is concerned by macro-economic policy and by Labour by throwing large amounts of money at the problem.

But there are other justice issues – ones that particularly concern me. They are fundamental access to justice issues. Putting it simply, the model that we have for a state-provided dispute resolution system hasn’t changed since Dicken wrote “Bleak House” in the nineteenth century. The system is complex, paper-based, arcane and requires expert assistance in the form of lawyers to navigate the intricacies of the system and to bring a case to a hearing.

I see it as part of the State’s obligation in a society like ours that values the Rule of Law to provide an effective and accessible system for the resolution of disputes between citizens. And this isn’t happening. The cost of entry to undertake a civil dispute that is beyond the jurisdiction of the Disputes Tribunal will inevitably involve a lawyer and litigation lawyers do not come cheap.

Over the years there have been a number of inroads into the availability of legal aid both for criminal and civil matters. The reality is that legal aid will not be available to many in the middle socio-economic groups which acts as a disincentive to pursue what might otherwise be a valid claim.

Those who are bold enough to represent themselves – and they have a right to do so – see Louise Grey “Not for the Faint of Heart: The Right to Self-Representation in New Zealand” (June 25, 2017). Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 25/2017.   – have to navigate through the procedural complexities contained in the High Court or District Court Rules which effectively are 600 + page “user manuals” for specialists.

So as the politicians have been promising the electorate the earth – or dodging the detail as seems to be the case with the Labour party – I have been waiting to hear what is going to be done about the fact that a substantial sector of the community does not have access to justice.

There are solutions available. The problem is that the system is anything but amenable to change. This is reflected in the fact that the use of technology – when it is made available – is within the context of the existing “Bleak House” model. Thus we have systems that imitate paper in the Electronic Courts and Tribunals Act which I have critiqued here and the practice notes for the use of Electronic Common Bundles and Electronic Casebooks.

The Courts (Remote Participation) Act 2010 addresses some aspects of the “tyranny of distance” but is still premised upon Court provided AVL technology (rather than the multitude of AV applications such as Skype) and a centralised location where business must be transacted – the Courthouse although to their credit some Judges use Skype for case conferences.

Part of the problem is that because we operate a “paper by default” system geographical location for the purposes of filing and storage of the “court file” remains a primary factor in the management of litigation. “Digital by default and by design” means that the association of kinetic files with a geographical location no longer determines where the file is located and where material must be filed. It eliminates the need for a Courthouse as the “back office” for litigation management.

But even although the Electronic Courts and Tribunals Act provides for the use of digital material there is nothing in that legislation that suggests that the “Bleak House” model has changed. In addition there are no facilities for electronic filing, notwithstanding that there have been a number of unsuccessful and expensive attempts by the Ministry of Justice and its predecessors to implement them.

I would like the politicians seeking my vote to think about and address the issues surrounding the fact that citizens are being deprived of access to justice for economic and procedural reasons not to mention a lack of expertise in the way that the system works. Considerations such as more availability of legal aid, a better resourced hearing system, less delay between commencement of proceedings and a hearing would be a start.

The problem is not with the Court or with the Judges, but the system itself which I have characterised as the Bleak House model. When this model comes into collision with the realities of the digital paradigm, speedy progress becomes difficult.

In  England proposals for a “digital by default and by design” Court for low value civil claims (less than 25,000 pounds) is being seriously considered. The use of digital systems has enabled those advocating the system – Professor Richard Susskind and Lord Briggs – to revisit the litigation model with some radical proposals. The court hearing before a Judge (which would be done online) would be the least desirable outcome. Instead resources would be deployed using online systems, legal expert systems, predictive analytics and machine learning to provide litigants with some indicia of the success or otherwise of their claim, and guidance on what to do to proceed with the matter should a claim be made. The emphasis would be upon conflict resolution, conflict containment and an identification of the real issues – all done on-line with the assistance of a skilled mediator. The proposals are premised primarily upon litigants representing themselves, although they can seek the assistance of a lawyer should they want to. But the cost of entry – legal expenses and court costs – would be eliminated.

Such a model is more in keeping with the realities of the digital paradigm and deploys technological solutions for an innovative revisiting of the litigation process.

Last year I discussed these proposals with some of those seeking election. I have heard nothing further. None of the parties in their answers to questions put by the Law Society have suggested any concrete proposals to look at some of the systemic fundamentals of the Court system.

The irony is that later this month I shall be at a Conference in the United States discussing these very issues – There seems to be more of an appetite for innovation in the state based Court process elsewhere than in New Zealand.

A further irony lies in the facts that alternative dispute resolution has been around for a while and taking ADR processes online has been a recent development. In this regard the Complete Online Dispute Resolution Service (CODR) has recently been established by Michael Heron QC. This service has had some positive outcomes – and a backgrounder to the service may be found here .

One wonders if private innovation is going to overtake and replace the State’s obligation.

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.

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.

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.