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.

Lawyers and Judges in the Online Court

This post is very much a random “on-the-fly” collection of thoughts about the way in which lawyers and Judges may have to change their working methods on the Online Solutions Court environment. It does not offer a nuanced fully developed systematic set of proposals or thoughts but rather an informal stroll through possible outcomes. It could form the basis for a more formalised study at a later time.

 

The technologically driven transformation of the civil process proposed by Professor Richard Susskind and Lord Justice Sir Michael Briggs are going to require some re-alignment of ways of working by both lawyers and judges.

The English Online Solutions Court proposals have developed in part to answer problems experienced by citizens who may have a legal claim which they wish to have addressed but for who the costs and complexity of the legal and court process present a barrier.

The Susskind\Briggs proposals envision the provision of processes which will allow citizens to directly access information about their potential claims, receive machine based recommendations as to the steps that may or may not be available and offer some suggestions as to probability of success or otherwise. From there the citizen may commence proceedings using online processes and step through the evaluation, dispute containment and hearing tiers as set out in the discussion documents that have developed the thinking behind the online solutions court.

Although the prospective litigant does not have to seek legal advice, the involvement of lawyers in not excluded from the process.

Perhaps the first major cultural shift will be to change from the adversarial stance that characterises litigation to a more problem solving focus. The emphasis of the Online Solutions Court is to find a solution to a problem and the larger part of the resource and process is dedicated to that end. The hearing before a decision maker, where the parties delegate the outcome to a Judge is the least acceptable outcome. Although the Fisher and Ury “Getting to Yes” model is well embedded in problem solving thinking, this type of approach is going to have to be one of the major shifts in emphasis for lawyers.

The Online Solutions Court models as proposed by Susskind/Briggs shifts the emphasis from lawyer control of the process of litigation to client or litigant control. The model also envisages a complete change of focus for the process, the objective being a solution or resolution rather than getting the case before a decision maker (Judge) to determine the matter. Thus if and when lawyers are involved in a matter in the Online Solutions Court they will not drive or direct what is happening. This relinquishment of control (subject to client’s instructions) means that the dispute is not lawyer driven. Letting go of that mind set will be significant.

Rather the involvement of the lawyer may well be on an “as needed” basis. For the first phase – case evaluation – the lawyer’s role will be minimal. Online evaluation, predictive analytics and other AI tool will provide that initial “advice” and potential outcomes. A lawyer may be asked for a second opinion, but as the term suggests, lawyer involvement will be secondary to the litigant controlled matter.

In this respect, given that the litigant interaction with the OSC will have been through an online process, any lawyer involvement may be accessed by the litigant\client remotely as well. This model of ”on demand” lawyering is not new. Models exist in BLP’s Lawyers on Demand (LOD) Evershed’s Agile and Allen & Overy’s Peerpoint. In New Zealand the McCarthy service offered by Minter Ellison Rudd Watts is another example.

Although the examples given are offerings by large law firms, the agile lawyer in the OSC environment should be able to provide a form of advice service for OSC litigants, recognising that the nature of the query and the scope of the advice may be quite restricted and will not be part of an ongoing matter. Thus the role of the lawyer may well be segmented in the particular proceeding, reflecting some of Susskind’s predictions in Tomorrow’s Lawyers and The Future of the Professions.

In addition to providing the service online the agile OSC lawyer may consider deploying a number of communications platforms for providing advice or information. The 140 character limitation of Twitter may preclude its use, but the use of chatbots for routine enquiries or other forms of voice recognition software may be deployed as well as virtual face to face systems such as Skype or online chat services – encrypted of course.

So it is clear that the lawyer in the OSC space is going to have to be tech savvy and attuned to the cultural shift that will be required. The OSC lawyer will need to be able to shift from the office desk model of advice to the mobile smartphone always on 24\7 model perhaps with an integrated application for the calculation and online bank transfer payment of the modest fee that the commoditised advice will justify.

The Susskind\Briggs model is aimed towards minimal judicial involvement although that said it is inevitable that Judges will be involved as disputes will reach them. One of the ways in which decisions will be made is “on the papers” although the papers will be digital. Judges will have to become more acclimatised to taking text and illustrative material from a screen. The OSC model would discourage the urge to print the material out and deal with it in the tradition “on the papers” way. One advantage with the digital on screen process is that the snagging of a finger or thumb on an errant staple will be avoided. But deciding matters on the basis or written or file based information is quite common for Judges.

Adaptation to an online hearing will require a shift on the part of lawyers and judges. The current paper based model has been underpinned by the oral hearing which requires all participants to be in the same place at the same time. Place doesn’t matter with a hearing in the OSC. The big difference will be getting used to communicating via Skype or some other form of audio-visual link process. Susskind suggested that online hearings could be conducted by teleconference but my view is that there is little technological difference if an AVL solution were deployed and would give a “human” element albeit via a screen rather than a disembodied voice across a conferenced  phone connection.

However it is this absence of “physicality” that is likely to require the biggest cultural and behavioural shift on the part of judges and lawyers. My own experience is that there is an initial phase of apprehensiveness in using AVL but as one uses it more frequently one becomes used to it so that ultimately it becomes routine. One is able to make the necessary adjustments of visual focus and oral clarity and it isn’t long before what appears to be the odd scenario of a person sitting in a room talking to a computer screen vanishes as the desire to address and deal with the problem in hand comes to the fore.

These are just a few brief thoughts about some of the skills and cultural changes that may be required by lawyers and Judges in the OSC space. The comments and observations by Richard Susskind and Sir Michael Briggs in their various reports provide some signposts for where lawyers may need to adapt. What is important to remember is that although the OSC provides a novel way of addressing litigation, the objective – an accessible, user friendly, litigant controlled system that will provide a resolution based on the law – fundamentally remains the same.

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.

Live Streaming the High Court

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

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

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

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

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

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

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

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

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.