Impeding Technology – Legal Culture and Technological Resistance

Introduction

This paper is about a collision between the culture and symbolism that accompanies the administration of law and technologies that enable change and a different way of doing things yet are the focus of resistance. I argue that this resistance at its heart is cultural and has little to do with legal doctrine.

The particular technologies that I shall discuss are communications technologies that enable and facilitate remote hearings where the participants need not attend a courthouse for a hearing of their dispute. The resistance is, as I have suggested, cultural and is based upon a number of factors including the way in which the imagination and the image of the Court as a symbol is represented and the role that imagery plays in the perception of the delivery of justice.

This cultural aspect also has relevance on the way in which the Rule of Law is perceived within the context of the “Court as a Place”. I argue that whatever imperatives may have underpinned the “Court as a Place” model of the delivery of justice, they are no longer as relevant or meaningful as they once might have been and that new communications technologies allow us to reimagine and revisit the way in which justice is delivered.

Justice, the law and the Rule of Law have been characterized as a “looming omnipresence in the sky” in the sense that although associated with rules governing the behaviour of individuals and groups within society it has certain intangible aspects that render it a somewhat slippery customer. Yet it fulfils a role within government structures and provides a system for the resolution of disputes between individuals and groups or between the State and the individual.

Although, as I shall argue, there is an air of mysticism and symbolic ritual that surrounds the law and legal process, in its most essential and most basic manifestation the legal process is an exercise in information exchange. I argue that the means by which information is exchanged has had an impact upon the way in which the legal process has developed.

We are now in the Digital Paradigm with all the various different means of communication that are now available. These include the tools for remote working which allow us to reimagine the way in which the Court operates and yet maintain those information flows that are essential to the legal and judicial process.

I argue that resistance to such reimagining is primarily cultural that includes a reluctance to move from what could be called a cultural comfort zone. I further argue that there is a certain inevitability that remote hearings increase in frequency and become normalized as part of the process. Underpinning this argument is the fact that new communications technologies shape our communications behaviours which in turn influence or modify our values and our acceptance of different ways of doing things. The argument is summed up in Marshall McLuhan’s aphorism “we shape our tools and thereafter our tools shape us”.

Given that a court hearing is an information exchange, I shall argue that the assumptions that underpin the “Court as a Place” model or hearing may give way to what Professor Richard Susskind calls the “Court as a Service”.

I shall argue that those who prefer the “Court as a Place” model must be honest in recognizing that their adherence to that model is based upon deep-seated cultural preferences and assumptions about what the technology can do rather than upon any legal imperative.

The Rule of Law as a Benchmark for Technological Innovation

There is a school of thought that suggests that rather than rushing to embrace new technologies in the justice process, some caution should be employed in evaluating those technologies and whether they fulfil the objectives of the rule of law. 

The Chief Justice of New Zealand Dame Helen Winkelmann sets out a number of criteria that should be considered and against which new technological developments should be measured before their acceptance and deployment into the justice system[1]. However, the onset of the Covid 19 crisis accelerated the deployment of remote working facilities out of necessity, simply to keep the Court system, or aspects of it, running.

When read alongside an earlier paper that she delivered to the Criminal Bar Association Conference in August of 2019[2], the Chief Justice develops a theme that, whilst not necessarily suggesting that there should be little use of technology in the courts, suggests a certain conservatism,  a desire to maintain existing systems and an underlining sub-text that present systems, as far as they can be, fulfil the objectives of the rule of law. 

One of the abiding principles present in both papers is the recognition by the Chief Justice of the importance of physical presence by all the participants in the court system in the one place at the one time.  This focuses, therefore, attention upon the concept of the “court as a place” that fulfils a number of functions, some of them substantive, some of them procedural and some of them symbolic. 

This runs up against the views of Professor Richard Susskind, who considers that the courts of the future should be seen as “courts as a service” and that place should not matter.  In this regard, the Chief Justice, in her January 2020 paper, addresses directly and obliquely some of the issues that are raised by Professor Susskind in his advocacy for an on-line court or remote working system.

There can be no dispute with the proposition that the Rule of Law must be the standard against which technological innovation should be measured. The question that must be posed is whether the innovation proposed enhances or detracts from the performance by the courts of this task.

In a State living under the Rule of Law, the laws administered by the court must have a certain substantive content, affording adequate protection of fundamental human rights.  These human rights are necessary pre-conditions for equal access to the protection of law before the courts but it is argued that there is another element, which is that if society’s laws do not afford protection for these rights then those who sit outside the law’s protection have no reason to accept those laws or the decision of the courts.  Social cohesion, it is argued, is a necessary pre-condition to the rule of law and it is suggested that physical presence enhances that social cohesion.

The Courts as a Manifestation of the Rule of Law

Rather than providing a service, as suggested by Professor Susskind, the Chief Justice considers that the work the Courts do is more than that and is in fact a public good requiring a public performance by way of hearings in a local courthouse, involving participation and human interaction, which affords human dignity to those involved in civil and criminal proceedings.

This emphasis upon the “performance” aspect of the law is one of a number of criteria that support the way in which the Courts administer the Rule of Law. Among these aspects are

•   The existence of an independent judiciary.
•   The public administration of law.
•   The importance of the local courthouse to the rule of law
•   The work of lawyers is critical to supporting the rule of law
•   That the court hearing is a public demonstration of the rule of law in action
•   Public hearings exemplify fairness and legality

If technological innovation does not enhance one or more of these elements of the Rule of Law, then it can have no place within the system. The list of items all have certain common elements to them. The law must be administered in public – the transparency issue that I shall discuss shortly. That transparency, it is argued, requires a courthouse, with its attendant symbolism which I shall shortly consider. Lawyers are a part of that performance rite which demonstrates the law in action – again harking back to transparency – and fair and public hearings demonstrating this important aspect of the Rule of Law process.

Thus, to summarise the point thus far, within the Rule of Law model proposed there is an emphasis upon 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 is describes as the performative aspect or what I have characterised as the performance rite.

But does transparency involve the physical presence of all the participants in the same place at the same time? I suggest that it does not, and that the element of transparency can be achieved utilising technology.

Transparency

The Court has evolved as location where citizens go – or are taken – to air their disputes or have them resolved in a manner that is largely open and available. Thus, one of the criticisms of Remote Court Hearings (RCH) and the Online Court (OC) is the lack of transparency and thus represents an affront to open justice represented by public hearings.

Open justice and transparency suggest visibility of Court processes, procedures and operations, of information about the Courts such as data about cases and volumes as well as scheduling and the cost to the taxpayer.

The public should have access to advance notice of hearings, to a record of proceedings and information about the business before the Courts along with the substance of a determination or decision and an explanation or reasons for a decision.

Traditionally, hearings have been in a public forum in all but exceptional circumstances and the media should be present to report proceedings as surrogates of the public. This is what Professor Susskind refers to as “real-time transparency.”[3]

The remote hearing is criticized because it challenges “real time transparency”. In a completely on-line court there is no physical courtroom into which the public or media may venture. The question is whether or not this suggested “threat” is a real one.

The reality is that real-time transparency is more limited today than is acknowledged. We trumpet the openness and availability of courts but policies that involve closing down court houses and centralizing the administration of justice remove that aspect of transparency from local communities.

The difficulties in actually travelling to a Courthouse to benefit from that so-called transparency has its own problems including the availability of public transport or, if a private car is used, parking in a busy urban location. Only in cases of high profile criminal trials do members of the public present exceed the capacity of the courtroom to seat them. In most criminal cases those present are directly affected – complainants and their inevitable support networks or families of the accused.

This suggested loss of transparency suggests, in the minds of critics, that hearings will take place in secret giving rise to suggestions of “Star Chamber justice”.

This is patently unsustainable. With the multitude of communications platforms available Court hearings can be broadcast online. The case of State of Washington v Trump before the 9th Circuit Court of Appeals was broadcast over Internet platforms to an audience of over 131,000 people. In addition none of the Judges were in the same place but teleconferenced in to the hearing.^[4]

The issue of open justice and transparency can be addressed by providing for a stream of proceedings before the Court if there is a full hearing or, if the decision is “on the papers” the online publication of the reasons for a decision.

The Covid 19 crisis immediately challenged the concept of transparency of Court proceedings by virtue of distancing and gathering requirements as well as restrictions on travel. Although the Courts in New Zealand were considered an essential service, adaptations had to be made. In many cases defendants in criminal courts appeared by way of Audio-Visual links (AVL). Counsel were “present” by way of virtual meeting room or conferencing software that allowed for audio and video. In some case even the Judge appeared remotely as distinct from sitting in a Courtroom.

Importantly the media were able to join the Court remotely and participate in being able to observe and report the hearings as they might have done in real-time. Indeed, the ability of the news media to “attend” a number of courts without leaving news desks actually enhanced the ability of the media to report Court proceedings and act as surrogates of the public.

It may be seen from these examples that concerns about transparency that are associated with “real-time” courts have little substance in the face of technological solutions that are available for remote working.

A Fair Trial?

But there are some deeper criticisms of the RCH or OC model. Can a RCH or the OC deliver a fair trial. This raises the question of whether or not the work of the Courts must be conducted on a face to face basis to achieve a just outcome.

The question becomes one of whether the public hearing is equated with a physical one. Professor Susskind suggests that our concept of “public” has evolved as communications technology has improved[5]. Online access to meetings, lectures and events is considered “public”.

This has moved even further during the Covid 19 crisis when, for example, the Auckland Theatre Company “staged” an online and very public version of Chekhov’s “The Seagull” to international acclaim.[6] The New Zealand Symphony Orchestra performed online concerts during the Covid 19 lockdown and has and as at the date of writing continues to present very public performances online[7]. Thus, the Internet provides an element of public participation in terms of performance and the gathering of information.

The public perception of the administration of justice – of fair process and fair trial- through the Court system has four basic elements – all of them procedural. They are that all cases should be treated alike; that parties should be given the opportunity to state their case before a Judge who has no personal interest in the dispute; judges should be impartial and work within a judicial system that is independent and that cases should be judged and not the parties.

The issue is whether these elements require, as a pre-condition, first, a physical presence on the part of participants and secondly, that presence in a structure or building that is largely symbolic and associated with a number of seemingly arcane rituals that are the province of a select priesthood – the lawyers.[8]

What is more important, it is suggested, is that the decisions of the Courts are fair, the processes are fair and in accordance with the rules of natural justice, that the participants are satisfied that they are so and that access to the courts is available across the community at an affordable cost.

Perceptions of Participation

The remote working model, it is argued, challenges the importance of litigants being treated with dignity and respect and the importance of human interaction between litigant lawyer and Judge.

The argument is that the on-line or remote working model challenges parties’ perception of participation and the critical importance of the presentation of one’s case in court. These perceptions have a common theme which is that of the level of engagement that may take place during a Court hearing and the impact of a remote appearance as opposed to an “in person” one.

Associated with the level of engagement are what could be termed participatory elements operate at a more visceral level and could be summed up in the terms “the day in court” and “the face to face hearing” which has its origins in the concept of confrontation between accuser and accused. I shall first discuss the level of engagement and then proceed to consider the elements of the “day in court” and “the face to face hearing”. I suggest that none of these issues are compromised by a remote hearing.

Level of Engagement

This aspect could be described as the “level of engagement” and that an appearance remotely may mean that the participant is not as fully “present” as she or he may be in person.

Once again, the Covid 19 experience is instructive. Counsel have certainly shown as great a level of engagement working remotely as if they were present in Court. The amusing observation by one defence lawyer that she wore a working blouse and blazer on top and track pants out of shot seemed to have little impact upon her level of engagement in a 90 minute opposed bail application.

It has been my observation as a Judge dealing with accused persons via an AVL link that they are as engaged as if they were present in person – perhaps even more so for they are able to remain focussed on what is occurring on the screen rather than having informal and signalled communications with friends or family members in Court. 

Lambie and Hyland discuss the importance of these early interactions with the Court.

“the pre-trial period should be viewed in New Zealand as it is in other jurisdictions; as a window of opportunity to provide the appropriate wrap around service provision that is required by the individual and their whanau”.[9]

However important that part of the process might be, and I agree that it is, I do not see that a remote appearance compromises the matters raised by Lambie and Hyland. As I have observed, the level of engagement is just as high with a remote appearance as it is with an in person one.

In some respects the level of engagement can be higher in that the positioning and size of the screens upon which people appear can play a part. Professor Susskind referred to the value of a large high definition screen[10]. My only observation about that in the context of the New Zealand Courts in general and the District Court in particular is the positioning of screens which should, as much as possible, reflect the positioning of the participants as if they were present in person. This is a matter which will have to be addressed in Courtroom design or configuration if remote hearings are to continue and become a part of the Courtroom toolbox.

Another matter raised is that of trustworthiness but what really could be described as empathy where there is a perception that the decision-maker actually cares about the case. This arises as a result of the dynamic of the hearing but could be as applicable to the online as to the in-person experience. 

Finally, there is the issue of neutrality, which can take place within the context of an oral hearing in which the parties have an opportunity to be heard and where the Judge is seen to be paying equal attention to the arguments of each side. This is an important aspect of the “level of engagement” issue.

Participants must also remember that, as in a physical courtroom, they are always “on” and care must be taken to behave in an engaging, interesting, respectful manner.

These latter matters fold into another issue about participation and that is the sense that litigants are entitled to their “day in court”. This phrase carries within it a number of elements. One of them, fundamental to the Rule of Law argument, is that everyone should have access to the court process for the resolution of a dispute. But does that mean physical presence or rather the availability of the services that the Court offers?

The “Day in Court”

Will remote hearings or remote “presence” will deprive litigants of their “day in Court” or access to the dispute resolution services that the Court provides.  The first point to be made is that remote hearings or remote participation should be seen as one means of allowing for “presence” at a hearing. It is not suggested that all hearings should be conducted remotely.

A remote hearing would offer much of the essence of the physical presence offered by day in court, particularly as remote video technology improves. It would also offer a remote day in court to those facing difficulties in personal attendance. The growth and development of remote communication and familiarity with getting information from a screen may make determination of substantive legal rights in circumstances other than face to face less of a departure from the cultural norm than may be perceived at present.

The real question is whether or not we are prepared to deny citizens access to the services of the Court because of their inability to be physically present. Quaestio caedit.

The “Face to Face” Hearing

The “Face to face” hearing is based on the assumption that remote hearings will deprive litigants of “face to face” justice. This could well be a misunderstanding of the nature of the so-called confrontation right[11] and is an argument based more upon tradition and a reliance upon earlier paradigms than any rational justification.

The concept of the “human face” of justice is considered significant. This has been advanced by Dr. Ian Lambie and Olivia Hyland in two articles^[12] and has been articulated by Andrew Langdon QC in his inaugural speech as Chairman of the Bar of England and Wale who said:

“The humanity of physical presence is, I suggest, an important component in the delivery of justice…Being in the physical presence of a witness or a jury or a defendant or a Judge or your lawyers …..isn’t that fundamental to our innate sense of how justice should be delivered?…Justice has a human face, and its not a face on a screen…Many smaller cases benefit from getting everyone together in one place. The dynamic between the parties becomes evident; whether one side is unfairly dominating the other, whether one party is as well-heeled as the other.”^[13]

The underlying themes of these comments are that justice must be done in person, the participants must be able to look one another in the eye, claimants and victims need to meet face to face, the humanity of justice can only be done in a largely symbolic centrally located building, justice is personal and the playing field is levelled by physical presence.

Recent developments arising out of the Covid 19 crisis have demonstrated some of the fallacies about the necessity for physical presence. I have noted the evidence of Professor Richard Susskind to House of Lords Constitutional Committee, where he commented on the fact that remote hearings could be used to determine credibility issues and noted the advantages of the full-screen view of a witness.[14]

Susskind also raises the issue of the fact that one may get a sense of a person’s credibility and their demeanour by looking at them on a high definition screen where the video is close to the face. It should be noted in this context that there have been some critics of the importance of demeanour in the fact finding process. A considerable amount of importance is placed by some on demeanour. Does the insight that a Judge may gain from seeing a witness face to face be as frequent or as accurate a perception in the remote hearing.^[15]

The issue of demeanour as a guide to truth telling and the reliance upon non-verbal cues as an aid to assessing credibility has been the subject of a considerable body of literature from the field of the behavioural science, and the overwhelming conclusion is that demeanour is not a useful guide to veracity.[16] 

There is no philosophical nor empirical justification for a need for face-to-face interaction – especially in the Internet age. The rules of natural justice are not threatened by the remote hearing model and there is certainly no constitutional principle that requires that justice can only be achieved where there is a form of face to face resolution. The issue of the “face to face” critique is met by the deployment of video systems to create a “virtual” or “online” court and the improvements in technology as noted by Professor Susskind may well enhance the evidence giving process.

There can be no doubt that the critics of RCH or OC believe that a move away from physical hearings is a retrograde – indeed fatal – step for the administration of justice. For most of our lives we have one conception of the resolution of disputes through the Court process. We have become attached to the environment that has provided us with careers and for a great many with prosperity. It is hard to conceive that there may be radically different ways of achieving the same outcome. We are culturally attuned to our way of attempting to achieve justice and in many respects we tend to support that cultural acclimatization with almost mythical and symbolic elements.

The cultural aspect of presence-based arguments 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.  Only when new technologies came into play, such as the development of the printing press and its impact upon law and legal culture, were there small and incremental changes in legal culture. 

One of these changes involved reliance upon printed materials as a record of what the law was.  As Lord Camden said in Entick v Carrington^[17] “if it is not in our books it is not the law” and, in saying that, he was summing up the importance of the printed record as law as opposed to the concept of immemorial custom that had been a feature of earlier iterations of the development of the English legal system.

Up until the 1930s and the development of digital systems, all of our communications took place within the context of what could be described of analogue systems such as print, radio, wireless, television and the like.  Only when the internet went public in the early 1990s did the real digital revolution take place. 

Within this context, the number of different methods and systems of communication arose – all of them deploying digital technologies.  This may not mean a lot but, in fact, it is important when we consider that the presentation of a court case, with all of the cultural aspects referred to, involves an information exchange. The advantages of new technologies are that the abilities to engage in that information exchange are enhanced and improved.

It is to the cultural and sub-conscious preferences for the in-person model that I shall now turn.

  Cultural Issues

In the next section I shall develop the argument that many of the reasons for opposition to remote hearings and online courts are based on cultural habits and expectations rather than having anything to do with the integrity of the law.

Legal culture, in its most general sense, is one describing relatively stable patterns of oriented social behavior and attitudes. The identifying elements of legal culture range from facts about institutions such as the number and role of lawyers or the way judges are appointed and controlled, to various forms of behaviour such as litigation or prison rates, and at the other extreme, more nebulous aspects of ideas, values, aspirations and mentalities. Like culture itself, legal culture is about who we are, not just what we do.[18]

In this section I shall consider the way in which legal culture is represented in image and otherwise to demonstrate some of the ways in which the Rule of Law is represented that has little to do with its real purpose but rather creates a psychological mythology of how those in power wish the law to be perceived by those whom it governs.

Court, Culture and Information

The trial is the law’s high theatre. The Courtroom is a stage and the participants are the players. Some, such as witnesses, have bit parts. Some are major players – on stage throughout the whole performance. It is little wonder that trials – especially criminal trials – feature so frequently in literature and in entertainment. The trial scene in Shakespeare’s ”Merchant of Venice” is gripping drama as well as being a showpiece for a number of jurisprudential theories. The trial is a set piece in Harper Lee’s “To Kill a Mockingbird” and the film “Witness for the Prosecution” is the trial itself. The trial dynamic brings all the players into the one place, with the classic dramatic formulae of human interactions, conflict and denoument. Television is replete with lawyer shows in which trials feature – “Rumpole of the Bailey” and “Silk” provide two examples.

Of course the trial is more than that. It is a critical part of a State provided dispute resolution process that has evolved over the centuries and is characterised by elegantly moderated reasoned arguments supported by specialised information which lawyers call evidence.

In the same way that the practice of law involves the acquisition, processing, sharing and communication of information, likewise Court proceedings are all about information.  Information takes certain forms, be it by way of pleadings which inform the Court what the dispute is about, evidence which informs the Court as to the strength of the assertions contained in the pleadings, submissions by which the Court is informed as to the possible approaches that it may adopt in determining the outcome, and from the Court to the lawyers and the parties when it delivers a decision.  In the course of processing the decision the Judge or Judges will embark upon their own information acquisition activities, looking up the law, checking the assertions or alternatively having recourse to an internal information exchange involving Judges’ Clerks.

Thus, a court is not only a place of adjudication, but also an information hub. Information is assembled, sorted and brought to the courtroom for presentation. Once presented, various theories of interpretation are put before the fact-finder, who then analyses the data according to prescribed rules, and determines a verdict and result. That result, often with collateral consequences, is then transmitted throughout the legal system as required either by law reports, academic comment or on-line legal information systems. The court is thus the centre of a complex system of information exchange and management.^[19]

Courts and Communication

Historically the conduct of a Court hearing has involved an oral exchange. This practice developed simply because there was no other way to convey information. Those who had a grievance would bring it before the chieftain or ruler and would seek redress. What we understand as the Rule of Law in its most embryonic form was to prevent the destruction of the members of a community or even the community itself by retribution or blood feuds.

Judges became the proxy for the ruler or, in the case of England, the King. Whereas the King would hear disputes in his court, so Judges adopted “the court” as the central place for hearing and resolving disputes. In England the Royal Courts occupied sections of Westminster Hall. The King’s Judges did not sit permanently in the Courts that were located in the towns and cities. They attended regularly at Assizes.^[20]

Written pleadings were not a feature of the early Courts. The entire process was an oral one, although written pleadings did become an important part of the court process. A misdrawn pleading could result is a dismissed case for want of form.[21]

That this model continued through into the nineteenth and twentieth centuries is quite understandable. The technology simply was not available to conduct a hearing in any other way. The advent of the printing press presented a means by which legal information could be accurately recorded, standardized and duplicated^[22] but this had little impact upon the way in which Court cases proceeded, although, as has been observed, printed law gradually achieved a level of acceptance whereby it became sufficiently authoritative to be relied upon by Judges as a source of law.

Although significant procedural changes came about with the merging of the Courts of Common Law and Equity perhaps the first technological innovation arose as a result of the use of the typewriter, and carefully crafted copperplate manuscript pleadings gave way to typewritten ones. Other technological innovations became a part of the Court system. The telephone as a means of communication between Court and participants became routine. To the dismay of many judges innovations such as the photocopier allowed for the presentation of large amounts of information and so the means of information transmission began to improve and increase. Despite the occasional incident of resistance to the use of a new technology it is doubtful that its introduction was opposed on the basis that it would result in fundamental or do substantial damage to the Rule of Law.

Rather, I would suggest, the acceptance of technologies such as evidence of tape recordings and closed circuit TV, evidence of tape recorded or video recorded evidential statements, the use of sound recording for the purposes of creating the Court record have all been accepted with little resistance. Perhaps this is because some of the apparent fundamental aspects of the court hearing have remained intact – the oral hearing, the gathering together of all the parties and witnesses in the one place in a Court – a word that echoes the Royal origins of the process – remain.

Yet the basic method of conducting a case – bringing information before the Court so that the fact finder may process that information and in turn reverse the flow of information back to the parties – remains.

Symbols, Imagery and the Culture of Law

But around the very basic process of information exchange a certain mystique, ritualism and symbolism has developed. This has to do with the mythologizing of the legal process – elevating it in importance as an aspect of the Rule of Law. But these mystical elements must give way to new and different ways of achieving the outcomes that the legal process seeks. As the legal process has done in the past, the adoption and use of new technologies may achieve this and at the same time maintain and enhance its relevance in the hearts and minds of the citizenry.

The Symbols of Justice

Societies have sought to define the nebulous virtue of justice through visual allegories and metaphors, along with libraries of books, articles, tales and parables written and told to imbue the abstraction of justice with meaning.

The management of image in the service of power is well known in modern politics although imagery and symbolism has played a part in depicting and representing power structures, along with other abstract ideas, throughout history^[23]. Much of this symbolism is represented in art, objects or architecture. The law is no stranger the use of symbols and other representations to enhance or solidify its importance in society.

In Ancient Greece Themis – a Titaness – is described as “[the Lady] of good counsel”, and is the personification of divine order, fairness, law, natural law, and custom. Her symbols are the Scales of Justice, tools used to remain balanced and pragmatic. Themis means “divine law” rather than human ordinance, literally “that which is put in place”, from the Greek verb títhēmi (τίθημι), meaning “to put”. Her Roman equivalent was Iustitia.

Themis is perhaps the most recognizable symbol of justice and her statue may be found in many Court locations, perhaps the most recognizable to those of the Anglo-American tradition as the figure on the dome of the Old Bailey. She is referred to as Lady Justice and is often portrayed not only with scales but also with a blindfold, a further symbol within a symbol, representing the impartiality and objectivity of justice.  Her scales represent weighing competing arguments or propositions and the sword is the sword of power and punishment.  In some representations a snake appears under her foot, representing the overcoming of evil as well as, latterly, a book representing a source of law[24].

In earlier imagery she was not seen as standing alone but was flanked by Temperance, Prudence, Fortitude and other classical virtues. With her sisters relegated to antiquity, however, justice has come to be treated as a self-sufficient ideal, a secularized cardinal virtue for the moderns.

She is the totem onto which Western societies have projected their concerns about power and legitimacy. Her omnipresence is a visual reminder of John Rawls’s famous dictum that ‘justice is the first virtue of social institutions’.

This image is perhaps the most recognizable of justice and its association with Court.

The Courthouse

The courthouse as a central location for the administration of justice is frequently portrayed as an imposing structure, often harking back to classical elements. Examples may be found in the United States Supreme Court Building or the imposing, almost overpowering façade of the Royal Courts of Justice in London or the Palais de Justice in Paris.[25]

The architecture of courthouses frequently incorporates pillars or similar architectural motifs. The pillars represent strength and sustainability, representing a reliable justice system.

Frequently the neoclassical architectural style that characterizes the United States Supreme Court along with many other Courthouses in the United States reflects the desire of the State to connect with a mythical past or ideal of justice embodied by Graeco-Roman temples or other famous buildings of antiquity. Indeed, court construction at a national, regional or transnational level is deeply self-conscious, engaged with history by seeking to embrace and link to traditions and often culture.[26]

On the other hand because the imagery of justice has been deployed to sanction power, the handful of images that suggest that justice might sometimes require defying the law are powerful and haunting. The South African Constitutional Court has been built on the site of an apartheid-era prison, and preserves the marks of decades of abuse perpetrated within its confines.

The murals that adorn the Mexican Supreme Court provide equally visceral reminders of egregious and arbitrary uses of state power. Rafael Cauduro’s arresting images break with the usual piety of courthouse art in  which justice is represented as the guiding light of a benevolent state, and instead depict acts of torture, rape and mass murder carried out by agents of the State.”[27]

These representations of justice within the context of a Courthouse – location in the case of South Africa – murals in the case of Mexico – stand out as reminders of the importance of justice in opposition to the arbitrary use of repressive State power and the important function performed by the Rule of Law to protect the rights and dignity of citizens.

However, more recently we witness the grand architecture of courts being eschewed in favor of multipurpose ‘law enforcement centers’ that fulfill a range of bureaucratic functions. The contrast between the visual grandeur of traditional courts and the invisibility of new forms of adjudication underlines the fact that the latter are much less accessible to the public even though they ‘decide the rights and obligations of hundreds of thousands of individuals’.  

Even in the case of administrative hearings that as a practical matter, everyone has the “right” to attend’, the proceedings are physically difficult to locate. Perhaps, given the developments in modern Courthouse design, our representation of justice as of the imposing, powerful, symmetrical and even handed is itself being mythologized.

Ritual

Courtroom ritual fulfils a number of functions. What to many may seem to be a somewhat unusual sequence of bows when a Judge enters the courtroom is a mark of mutual respect for the participants in the process. The somewhat arcane language – “May it please your Honour” – is indicative of respectfulness and for some provides a path in to the development of an argument.

If anything it is in the rituals of the Court that we see the greatest practicality of the process. In essence the Court provides a forum for competing arguments. Despite the drama and raised voices that one sees in American courtroom TV shows, the argument that is carried out in Court is very restrained and conducted, for the main, rationally and within a very constrained framework. Raised voices are not tolerated. Personal opinions are eschewed in favour of the advancement of a proposition. “I think” is replaced with “I submit”.

Yet in many respects this means of presentation of an argument in itself represents a move towards a comfort zone. True, the development of advocacy has taken place over a number of years and has reached a point where there seems little room for innovation. But at the same time it represents an aspect of comfort with process that itself obstructs any suggestion that there may be a better or more effective way of presenting a proposition[28]. For this reason, despite the obvious advantages of modern advocacy allowing a number of technology enhanced forms of presentation, I consider Courtroom ritual to be an aspect of cultural impediments to change.

The Imagery of Justice

The symbols, imagery and architectural styles are part and parcel of the representations that to an extent mythologize justice to the point where those symbols become cultural imperatives for the way in which the system is required and expected to operate. Within many Courthouses are great halls, entry porticos, in some cases doors engraved with symbols, conspicuous images of national identity such as coats of arms or other forms of constitutional iconography representing or portraying legitimacy of what takes place within the temple-like structure.

The Courtroom or courtrooms themselves and their location in the building often structurally or by way of positioning represent the hierarchical nature of the law and indeed the legal establishment. Many Courthouses have a large main Courtroom, often used for ceremonial purposes, surrounded by a number of smaller Courtrooms. Within these ceremonial courtrooms, often replete with large paintings depicting Jurists or Heads of Bench, the rituals and cultural underpinning of the law are enhanced. On ceremonial occasions in New Zealand Queens Counsel are seated in order or appointment and are called upon in that order for no other purpose than to recognize their presence – a process that is mystifying to members of the public who are not members of the legal “priesthood.”

The Courtroom itself contains its own hierarchies with a raised bench, counsel’s table – prosecution or Crown at the front, defence behind for no other reason, like many legal cultural practices,  than that is the way that it has always been –  and the public behind a bar beyond which only certain persons may pass.

In appellate Courtrooms the design is usually very symmetrical with equally symmetrical seating for the Judges, the President or the Chief Justice in the centre. Once again the quaint and polite rituals take place. Before the Judges are seated and before they bow to those in the Court they bow to each other.

Apart from the central seat, the seating of the Judges represents the egalitarian nature of the Judges who occupy the same bench, although that said in most of the top appellate courts the judges sit from the centre based on their seniority. Seniority is another quaint aspect of the imagery of legal culture.

The layout of the Courtroom is reminiscent of a place of worship – the Bench is in the place of the altar and often behind it is a form of iconography be it a flag or other national symbol like a coat of arms. The area before the Bar where counsel and other officers of the Court may take their place is akin to the sanctuary – an area reserved for the priesthood – and the public gallery seating is similar to the pews in a church.

The impact of the imagery of justice and especially the Courthouse is not restricted to those attending.  The images of Court buildings appears countless times in newspapers, television and online in any number of places owing to an intense focus on Court hearings from national media coverage. This use of the imagery of justice enhances the perceived power of the Court, adding to the cultural significance of the legal process.

At the same time the top appellate Courthouses perpetuate the imagery and representations of justice by being not only symbolic of government authority but, as they become empty of the business of judging and evolve into museums for school children and destinations for tourists, they are becoming themselves symbols for courts.[29]

The Majesty of the Law

So far I have demonstrated how the symbolism of the law has become part of the cultural heritage of those involved in its practice and administration. To interfere with the symbols and images of the law would at best be culturally uncomfortable and at worst be seen as rending the fabric of the Rule of Law. And in many respects these elements underpin the issue of “the majesty of the law” as an aspect of the Rule of Law and which is used as a reason for applying the brakes to technological change.

Andrew Langdon as Chairman of the Bar in 2016 in his inaugural address made reference to the “majesty of the Court.

“Most of us – lawyers or not – instinctively understand the solemnity or as it is sometime put, the “majesty” of the law. The historic prominence of a court building in the municipal setting demonstrates that our ancestors understood it also. Whereas no one wants court users to be overborne or intimidated, neither will it be helpful if respect for those who administer the law is diminished by the very fact that those who come before the Court are only in the virtual presence, rather than the actual presence of judicial authority.”^[30]

Those who see the law and its administration as “majestic” and remote hearings as being an erosion of the “majesty of the law” need to give careful consideration to the purpose of the legal process. At the moment the court system is hard to understand, hard to access, marginalising for many and reserved for the few who can afford it. Coupled with that, it retains elements of kinetic presence and orality that have been part and parcel of the system since the Middle Ages.

One must add to this the fact that many of our Court buildings are anything but majestic, apart from the occasional imposing temples such as the United States Supreme Court building in Washington DC or the Supreme Court building in Wellington, New Zealand. By and large our Court buildings are shabby and run down. As Professor Susskind says “To celebrate our court buildings again runs the risk of lapsing into romantic transcendentalism.”^[31]

Indeed, I would suggest that it is not “majesty” itself that is the fundamental value. It is not an intrinsic good, important for its own sake. Rather than a “majestic” system we want a system that is authoritative, respected and supportive of the principles of justice to which I have already referred.

Furthermore the system should be relevant and not detached from the mainstream lives of citizens. It should not be intimidating and should reflect modern standards and understandings. The court system should not exist as a majestic rarely used physical system, little understood and at the periphery of the lives of citizens. It should be effective, meaningful, authoritative, relevant, respected and understood as part of the mainstream of a society under the Rule of Law.

The use of cameras in Court have assisted in public education and have increased public awareness of the way in which the Court process operates and have not derogated from the solemnity of the Court as an institution nor its processes. The UK Supreme Court live streams its hearings and a similar proposal is in train for the New Zealand Supreme Court. Some Federal Appeal Courts in the US also live stream. The US Supreme Court needs to rethink its attitude to cameras in court.

Remote hearings will increase the necessary legitimacy to and confidence in the legal process by providing an effective additional means to access the justice system. The alternative is for litigants to migrate to other forms of private sector dispute resolution, simple because the State is failing in its duty to its citizens

Fundamental to the Rule of Law is an effective State provided mechanism for the resolution of disputes. An effective, popular, authoritative and respected Court system that embraces new communications technology to further its purpose should underpin and help maintain the Rule of Law.

The Comfort Zone

It is perhaps within the realm of cultural comfort that the innate conservatism of many lawyers lies. The mantra goes “this is the way that we have done things in the past and it has worked and there is no need to change.” This mantra, of course, ignores the fact that law and particularly the legal culture associated with it does change albeit slowly and at times imperceptibly. In essence this mantra calls upon the traditions of law as a validation for continuing past practices. But tradition itself cannot act as a justification unless there is some rational basis for its continuation. And the problem with tradition is that is is constantly facing the winds of change and the dynamic of the human condition.

I have already commented on the role of the printing press – the first information technology – and its dynamic impact on legal culture. The shift from an understanding of the underlying communicative qualities[32] of the printing press, although recognized by some legislators such as Thomas Cromwell and by those who wished to advance a particular view of the law such as Sir Edward Coke, to a positive cultural shift in the recognition of the fact that the fixity of print and its incorporation in a book enabled the certainty that the law demanded along with its authoritativeness took some 284 years from the publication of Littleton’s Tenures in 1481 to the dictum of Lord Camden in Entick v Carrington.

There were other dynamics in the law. The development of the adversarial criminal trial with counsel playing a part provides an example. The evolution of the criminal trial from a lawyer free to a lawyer dominated model and the slow recognition that there was a taxonomy of types of evidence developed over a period of a century from the 1690’s when counsel were permitted in Treason trials to the 1730’s when judges allowed counsel to cross-examine witnesses to the greater involvement of counsel in arguing points of law by the 1780’s.[33] It may be surprising to some that the criminal trial process is a relative novelty when one considers the reach and scope of legal history.

There are other examples of dynamic change in the law and in legal processes. In my years of practice I have seen the Criminal Justice Act 1954, the Criminal Justice Act 1985 and the Sentencing Act 2002 along with the Criminal Procedure Act 2011 all of which introduced significant changes in criminal procedure. These were not opposed or decried because they challenged “the way we have always done things”.

There have been other examples of the dynamic in legal culture. One example may be seen in the abandonment in New Zealand of the need to wear wigs and gowns in the Senior Courts. Wigs and gowns are now retained only for ceremonial occasions, vested as they are with calls upon professional traditions. Yet the move for change was met with considerable protest, and is still decried by some traditionalists. Now only a black gown is worn in the Senior Courts and in the District Court for criminal jury trials.

The dynamic has reached the Judiciary. Imperceptibly and certainly without wide debate, although I imagine there were some terse exchanges in Senior Court common rooms, the formal ceremonial red robes of Her Majesty’s Judges has given way to a black gown with a motif panel upon it and the full bottomed wig, harking back to Restoration days, has been consigned to the cupboard.

Yet I suggest that what I call cultural comfort or continuing to do things in a particular way because that is the way that they have been done underpins much of the resistance to procedural change in the way in which cases are presented in Court. I further suggest that the elements of the Rule of Law that allow for transparency and public performance do not require the symbolic elements of the quasi-religious temples of justice nor can their continued use to the exclusion of other alternative means of delivering justice be justified on what is a self-perpetuating representation and imagery of what the Rule of Law is imagined to be.

How Culture Changes With Technology

In this section I shall argue that new technologies may act as drivers or agents of change in behaviour, values and culture. I shall propose that the pace of change has accelerated and indeed in terms of communications technologies, the digital revolution has ushered in a new communications paradigm – the Digital Paradigm.

Paradigmatic Change

I have suggested elsewhere that digital communications systems have resulted in a paradigm shift in the way in which we communicate and in our responses to and expectations of information. This arises from the significant properties that digital communications systems bring to bear and how they enable the differing views that we have of the communication of information.[34]

Changes in Behaviour

Marshall McLuhan’s aphorism “we shape our tools and thereafter our tools shape us” pithily sums up the way in which our inventions and tools affect behaviour. Once the tool becomes a part of what we do it changes how we do it and in the long term may have an impact upon other aspects of our lives and ultimately our expectations and values.

In the past there has been a gradual progression of new communications media. The printing press was the first information technology and until the mechanisation of print was introduced, there were no major changes in the way in which the technology operated. The types of content that print produced expanded but the real “reach” of print became possible with industrial printing and much larger print runs than were possible with the hand operated press. The technology and its particular underlying properties, however, remained the same.

The next step on the communications media progression was the introduction of telegraph – the long distance transmission of text or symbols without the physical exchange of an object bearing the message. Semaphore, beacons and reflected light signals (heliograph) are forms of telegraphy but it was the use of electricity that enabled the development of telegraphy in the early nineteenth century as the next development in communications technologies. Telegraphy was followed by the telephone – another one to one technology that enabled communication by voice – wireless telegraphy in the 1880’s and from this communications innovation came radio and television in relatively rapid succession.

The time lapses between the introduction of these various technologies reduced considerably and the pace of change accelerated. But each technology was a discrete development. In addition, transmission of information required significant investment in infrastructure so that the deployment of capital intensive communications technologies such as radio or television was only possible by means of centralised organisations. In addition, there was no real convergence of technologies although television could be considered a form of radio with pictures. But it certainly became more than that.

Each of these communications technologies brought to the table a new set of characteristics or properties that modified those of earlier technologies or introduced new ones. The effect of this was that the expectations and behaviours surrounding information communication changed. Furthermore, the development of these various technologies meant that the range of means by which information could be acquired increased as well. But in terms of information flows, communication was virtually one way – from the originator of the information to the audience. Unless one was a member of a live radio or TV audience, participation in information flows and in the creations of information in response to that received was nil.

This has all changed with the development of the Internet and the various communications protocols that are “bolted” on to it. Effectively what has happened has been the convergence of communications technologies so that users may send and receive information from the one place, virtually at the same time in a seamless fashion.

I suggest that the new communications technologies that have become available on the mass market for mass consumption have resulted in changes in behaviour.

As behaviours change their validity becomes accepted as a norm and as an acceptable aspect of life. For many private conversations in a private setting via mobile phone are perfectly acceptable. There is an expectation that there will be an element of privacy accorded to such communications.

Indeed the mobile phone has drastically altered behaviour by virtue of the fact that it makes subscribers available 24/7. No longer are business communications restricted to the office setting and although this is seen as an added pressure of business it is accepted as a part of life in the Digital Paradigm.

The smart phone provides a smorgasbord of communications options in addition to voice communication. It enables text messaging, video messaging, access to the Internet and communication – both voice and video – by a number of apps that have been made available by third party developers.

Changes in Assumptions about Information

Understanding the medium and the way it governs and moderates information activities allows us to understand the impact of the digital communications technologies – a convergence of everything that has gone before and the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

In some respects the paradigm shift can be seen in an inter-generational context. Mark Prensky, an American educator, spoke of the issues confronting education in the digital paradigm.^[35] He suggested that there was a growing culture of people who had grown up knowing nothing but the Internet, digital devices and seeking out information on-line. This group he called “Digital Natives” – those born after 1990. He contrasted this class with “Digital Immigrants” – those who had developed the information seeking and uses before the advent of the Internet. Digital Immigrants used digital communications systems but their thought processes were not as committed to them as Digital Natives. Although they could speak the same language as the Digital Natives, they had a different accent that derived from an earlier information paradigm.

Digital Immigrants have an approach to information that is based upon sequential thinking, single tasking and limited resources to enable communication, all underpinned by the fixity of text. For the Digital Immigrant text represents finality. A book is not to be reworked, and the authority of a text depends upon its finality.^[36] Information is presented within textual constraints that originate in the Print Paradigm.

Digital Natives inhabit a different information space. Everything is “multi” – multi-resource, multi-media, multi-tasking, parallel thinking. Information for the Digital Native may in its first instantiation be text but it lacks the fixity of text, relying rather on the dynamic, fluid, shifting qualities of the digital environment. Text does not mean finality. Text is malleable, copyable, moveable and text, like all other forms of information in the digital space, is there to be shared.

In the final analysis, the fundamental differences between Digital Immigrants and Digital Natives can be reduced to one fundamental proposition – it’s all about how we process information. For Digital Natives the information resources are almost without limitation and the Digital Native mind shifts effortlessly between text, web-page hypertext links, YouTube clips, Facebook walls, Flikr and Tumblr, the terse, abbreviated tweet or text message and all of it not on a desktop or a laptop but a handheld smartphone.

Expectations of information

Along with intergenerational changes in assumptions about information, our expectations of information change as well and many of those expectations are based upon assumptions which are largely developed and perpetuated by digital natives.

One only has to consider the use of the phrase “for further information go to www…….” to understand that the information that has been presented is often not the full story, that there is another source for that information, that there is a greater volume of detail of information about the topic at that source and finally that everyone is going to be able to access that source. The source, of course, is Internet-based and so the expectation is that detailed information can be found on the Internet. The assumption that drives that expectation is that everyone has access to the Internet and despite the fact that Internet uptake in New Zealand is high we know that is not the case.

Another aspect of information expectation is that of immediacy. Exponential dissemination couple with searchability and retrievability make information almost instantly available. The ability that large segments of the population have to be able to fact-check on the spot means that we are reluctant to wait for the 6 O’clock news or the next edition of the newspaper. Indeed, with online versions of newspapers readily available the presence of the newspaper on the breakfast table has become redundant and is replaced by the iPad with access not to one newspaper but to thousands.

Our expectations of information are shaped, as McLuhan observed, by the very underlying qualities of the technology that we fail to understand or recognize because we are fascinated by and are continually seeking out content.

Information Expectations and the Courts in Covid 19

The Covid 19 crisis in New Zealand and indeed in many other countries forced Courts to examine how they communicated at a time of extreme social distancing and lockdown which restricted travel and availability of counsel and participants in Court proceedings. Audio Visual Link (AVL) appearances by prisoners in custodial remand had become routine following the introduction of the Courts (Remote Participation) Act 2010[37].

The technology that was available for AVL did not allow for multi-party participation and the Ministry of Justice had to move swiftly to find some tool that could allow for virtual appearances. It was necessary to scale back the types of cases that could be heard during the most extreme phase of lockdown but the use of conferencing software enabled multi-party participation in those cases that were heard.

As the restrictions have eased the level of personal participation in Court proceedings has increased. It is still possible, and for many lawyers preferable, to appear remotely where that is appropriate.

A consideration of the information expectations that arose as a result of the use of remote technology for Court appearances demonstrate how information expectations morph into behavioural patterns.

1. That it could be done in the first place
2. That, apart from some initial technical difficulties, it provided workable solution
3. That it enabled a court appearance without the necessity for travel to and from Court
4. That it enabled a number of court appearances in sequence and by appointment that might have taken a considerable amount of travel time to accomplish were they to have been in person
5. That in between virtual or remote appearances there were opportunities to attend to other work thus maximizing productive time
6. Importantly that a remote appearance did not do violence to the Court process or to other aspects of the Rule of Law

The wider use of remote technology developed within an existing legal and statutory framework that gave it legitimacy but was accelerated and indeed proven effective by a crisis.

Although this cannot be said to be a perfect means for introducing technological change it was necessary for the continuing function of the Courts. The duration of the lockdown and Alert Levels in New Zealand have not allowed for the use of remote technologies to become firmly embedded in the process and it is a matter of regret for some that the Heads of Bench prefer a move back to “in person” appearances when the requirements of Alert Level allow it.

This challenges the expectations that many lawyers have developed around the use and effectiveness of remote court technologies and will be seen as many as a retrograde step that ignores the way in which the effective communication of information in the Court process may develop, notwithstanding statutory provisions to the contrary.

Final Thoughts on Cultural Change

In the conclusion to my book Collisions in the Digital Paradigm I made the following observations.

“Digital information systems have revolutionised our approaches to information in all its aspects. This revolution has ushered in a paradigmatic change in the way in which we communicate and deal with information. This has had an impact upon law and upon lawyers.

Legislators, wedded to a process that is by its very nature deliberate and deliberative, struggle to make rules that are applicable for the foreseeable future. The problem with that this process is that it collides with continuing disruptive change and a society the dynamic of which is in a continuing state of flux as the next new “new thing” comes along. And change is incredibly fast. Facebook was founded in 2004. [Sixteen] years later it has become almost the “establishment” of social media platforms.

Judges develop rules on a case by case basis while, on occasion, developing broad principles applicable to certain type of activity. There are a number of limitations to the judicial process in developing rules for a rapidly developing paradigm. One is that cases are decided upon the evidence that is available – within the parameters of the pleadings, issues and argument. And on occasion that evidence may be limited, incomplete or misunderstood. Another limitation lies in the judicial process and the care that must be employed in ensuring that the examples and illustrations used in judicial reasoning are applicable and appropriate. A third lies in the fact that cases decided about one technology may not be applicable to another. And then there is the problem of too much information which may obstruct the development of principle based precedent.

For lawyers, for whom information rather than time is stock-in-trade, the new paradigm has been challenging. But on the positive side lawyers have available more information, more means of communicating more quickly, more opportunities to enhance workflow methods, to automate the standard and repetitive tasks so that they may focus upon the areas of work that require the delicate, specialist, case specific approaches to client problems, to obtain information from a myriad of alternative sources and to communicate that information along the various flow paths to clients, to colleagues and to courts as the case may be. And one of the stunning successes that has been achieved by lawyers and rule makers in the law and technology field has been the development of e-discovery rules. Technology has not only driven change. It has, in some jurisdictions, been the catalyst for innovative approaches to fundamental discovery principles.

Technology is not the master. It is a servant. But as the printing press was described as an agent of change in the early-modern period, so the development of information technologies based on digital systems are agents of change. I suggest that the agency is perhaps more powerful than that of the printing press, simply because the qualities that underlie digital systems and that acts as enablers of behaviour are more powerful than those of print.

The pervasive way in which digital technologies have inserted themselves into our lives means that their influence, although obvious in some contexts, will be more nuanced in others. The influence of technology on behavioural norms and the values that accompany new behaviours and that underpin law is a continuing story and will be for some time. The long-term impact of the Digital Paradigm may be much wider than we may think at present.

When I looked at the changes that took place when lawyers encountered the first information technology – the printing press – I noted that change was gradual, incremental and slowly progressive, marked by co-existence with earlier information systems. Certainly co-existence of technologies is still a reality. As I looked out over my Law and IT class, among the host of laptops were students still employing scribal note-taking techniques that were used before the advent of print.

But unlike the early-modern period the pace of change in the new millennium has been infinitely faster and many lawyers have adopted and deployed new technologies with enthusiasm. These practitioners are probably the exception for lawyers and judges are not renowned for technological enthusiasm and technology driven innovation.

But if law and rule making in the digital paradigm is going to develop properly – at both the legislative and judicial level – there must be a proper understanding not only of what the technology can do but how it does it and the way in which the properties of digital technologies impact upon our pre-conceived understanding of information and its use. The message is in the medium and it is the medium – the technology – that must be understood. And care must be taken not to obstruct the potential and the opportunities that the technology may make available for society.

As with an understanding of technology so a recognition of the benefits that technology may bring to the table not only of substantive law but of the Rule of Law itself. Perhaps one of the most encouraging developments in the law and technology field is that of the moves towards on-line systems to enable citizens to seek remedies to which they may not otherwise have available as a result of cost, location or a lack of understanding. The development of on-line dispute resolution using technology – be it by means of private arbitration or mediation or by the provision of on-line courts by the State – may well revolutionise our understanding of access to justice and become the high point of technology use in the law.”

Recognising Cultural Artifacts.

The development of remote working within Court was, as I have observed, born out of necessity although it was foreshadowed as long ago as 2010. As I have demonstrated in this paper, many of the important and significant aspects of the Court within the legal structure do not depend upon imagery and symbols, upon building and icons, upon physical presence and performance. These are cultural artifacts that are unnecessary to the proper performance of the Court as a manifestation of an ordered society under the Rule of Law

In saying this I do not understate the vital importance of the function of the Court in society rather than as a symbol. The Court must continue to be seen as a place of resort for citizens – the alternative to the rule of the mob or the rule of the vigilante. In many respects the Rule of Law survives, although as we have seen in recent riots around the world the veneer of civilized behaviour is thin, because the alternative is too awful to contemplate. Yet it must be a matter of concern that there are occasions when mass behaviour renders the Rule of Law, adherence to the law and its enforcement powerless – an outcome which although rejected by politicians is, by their inaction, condoned.

The Rule of Law, in addition to those matters identified by the Chief Justice, requires acceptance. Acceptance is demonstrated by a recognition that it is the Court that will achieve adherence to the law by ensuring just processes and outcomes. Acceptance is critical, as is the case with all systems of authority, lest it become a tyranny. And in doing so the Court must employ systems that are apposite, understandable and relevant. For the new generation of Digital Natives, the rejection by the Justice System of means of communication and information sharing that are part and parcel of their paradigm will render that system quaint, old fashioned, out of date and irrelevant to their needs and expectations of how an information sharing system should work.

In saying this I do not for one moment propose nor indeed suggest that the justice system is perfect. It is, after all, a human construct, despite all the mythology, iconography, tradition and symbolism. I am not one of those transcendentalists who set their sights on an idealized concept of a just court service.

Rather I consider Voltaire’s observation that “the best is the enemy of the good” – what Professor Susskind refers to as Voltaire’s Riposte – as applicable to the way that we develop Court processes. Susskind uses Voltaire’s Riposte in the context of online courts.[38] I shall apply it to remote court hearings. Although a remote appearances may have some drawbacks, they will amount to an improvement on a system that struggles to properly schedule and dispose of cases in a manner that is suitable to participants. Remote working means that there may be participation without the attendant logistics of attending a centrally located building

Remote working will also provide a satisfactory means by which there will be better access to the services that the Court provides and that presently require the disincentive of personal appearance with all its attendant difficulties.

The Courts can be improved and it is conceded that remote working is not going to make our Court system the best. But it will enhance the Court system by making it better than it is at the moment, thus maintaining what is good but recognizing that the best is unattainable. Consistent with Voltaire’s Riposte remote working opens a new way of working which must be better than the old.

Conclusion

In this paper I have advocated the use of technology in the Courts to provide an alternative way of allowing appearances at Court. I have not gone so far as to advocate an Online Court. That is for the future.

Remote working is authorized by statute and the technology for it is available. It conforms with some of the fundamental procedural requirements that underpin our perceptions of the Rule of Law.

I have been critical of the support for maintaining present Court practices to the exclusion of alternatives. I make no apology for that stance. I fail to see how appeals to tradition and a reliance upon a form of cultural mythology about the “majesty of the law” can exclude the use of systems that demonstrably enhance the way that the law can work and be effective, can be meaningful and can be relevant.

I do not suggest for one moment that remote working should be used for criminal jury trials. There is limited provision for its use in Judge Alone criminal trials. There will be other processes where it will not be useful or apposite. But those occasional circumstances should not dictate that remote working has absolutely no place in the Court system.

Rather I advocate that it is one of the smorgasbord of technological communications tools that is available for a system that depends upon the effective communication of information.

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[1] Dame Helen Winkelmann “A Framework for the future; Technology and the Rule of Law”, delivered to the Australasian Supreme and Federal Court Judges’ Conference in Canberra on 20 January 2020 

[2] Dame Helen Winkelmann ““Bringing the Defendant Back into the Room” Criminal Bar Association Keynote Address 3 August 2019 https://www.courtsofnz.govt.nz/assets/speechpapers/Keynote-speech-Annual-CBA.pdf (last accessed 11 June 2020)

[3] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 194.

[4] The audio is still available from the website of the 9^th Circuit http://cdn.ca9.uscourts.gov/datastore/media/2017/02/07/17-35105.mp3 (last accessed 15 March 2017)

[5] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 203

[6] https://www.youtube.com/watch?v=sbqHG1m4alE&list=PLNaT-ciUkjcf5ii_CSGP8BleRpTOiVkkv (last accessed 5 June 2020)

[7] https://live.nzso.co.nz/

[8] Given that historically clerics comprised a large part of what could be considered the medieval legal profession, some might think that apart from secularization, not a lot has changed.

[9] Lambie and Hyland “The Opportunity of a Lifetime” [2019] NZLJ at 223.

[10] Professor Richard Susskind  Evidence before the House of Lords Constitutional Committee Inquiry into the Constitutional Implications of COVID 19 3 June 2020 reported in Legal Futures 4 June 2020 https://www.legalfutures.co.uk/latest-news/remote-hearings-can-deal-with-credibility-issues (last accessed 5 June 2020

Giving evidence before the House of Lords Constitutional Committee, Professor Richard Susskind observed that people should not presume that remote hearings cannot be used for cases where the credibility of witnesses is at stake. He stated that lawyers from around the world reported that a full-screen view of a witness brought them closer to the “whites of their eyes” than being in the courtroom. The difference between looking at someone “the size of a postage stamp” and “filling the entire screen” was “manifest”.

“What is coming through, and this is a global experience, is that many attorneys from the United States and around the world are reporting that, actually, they find video remarkably effective and they can get nearer to the whites of their eyes than in the courtroom.

“I don’t think we should make assumptions – clearly we need systematic data on this – that if there are questions of credibility, there is no way this can achieved through a video hearing.”

“As a generality across the world, video systems seemed to have worked quite well with large, complex commercial cases. The judge will have the discretion to decide which hearing mechanism is appropriate.”

“But I do find it fascinating from the feedback that people are expressing surprise that from the video hearing you can get a real sense of the person’s credibility and their demeanour, by looking at them on quite a high definition screen where the video is quite close to their face.”

[11] For a discussion of the nature of the confrontation right and the issues of presence see David Harvey Collisios in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) p, 213 – 214. I argue that our view of the “confrontation right” is based on faulty premises about its historical background. This erroneous foundation has permeated our thinking about the importance of the confrontation right to the point where, in New Zealand the presence of an accused and witnesses is statutorily enshrined both in the New Zealand Bill of Rights Act 1990 (s. 25(e) )and in the Evidence Act 2006.(s. 83(1)).

[12] Ian Lambie and Olivia Hyland “The Opportunity of a Lifetime” [2019] NZLJ 220 and Ian Lambie and Olivia Hyland “I am more than a piece of paper” [2019] NZLJ 297.

[13] Andrew Langdon Inaugural Address 14 December 2016 Middle Temple Hall http://www.barristermagazine.com/inaugural-address-by-andrew-langdon-qc-chairman-of-the-bar-2017-delivered-in-middle-temple-hall-london-on-14-december-2016/ (last accessed 5 June 2020)

[14] Professor Richard Susskind  Evidence before the House of Lords Constitutional Committee Inquiry into the Constitutional Implications of COVID 19 3 June 2020

[15] A proposition put by Andrew Langdon QC in his Inaugural Address

[16] See in particular Robert Fisher QC “The Demeanour Fallacy” [2014] NZ Law Review 575 at 582. See also Chris Gallavin “Demeanour Evidence as the backbone of the adversarial process” Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-adversarial-process (last accessed 20 June 2014); Professor Ian R Coyle “How Do Decision Makers Decide When Witnesses Are Telling The Truth And What Can Be Done To Improve Their Accuracy In Making Assessments Of Witness Credibility?” Report to the Criminal Lawyers Association of Australia and New Zealand” 3 April 2013 p. 8; On the subject of demeanour generally see Professor Coyles extensive bibliography. See also Lindsley Smith   ”Juror Assessment of Veracity, Deception, and Credibility,” (2002) 4 Communication LR 45 http://commlawreview.org/Archives/v4i1/Juror%20Assessment%20of%20Veracity.pdf (last accessed 18  August 2014) See also David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2019) Chapter 8 p. 211 et seq

[17] [1765] EWHC KB J98

[18] David Nelken ‘Using the Concept of Legal Culture’, (2004) Australian Journal of Legal Philosophy 29: I-26

[19] F Lederer “The Courtroom as a Stop on the Information Superhighway” (1997) 4 Aust Jnl L Reform 71.

[20] The smaller and more routine legal disputes were conducted in the manorial courts or before Justices of the Peace. Michael Dalton’s The Countrey Justice (Adam Islip for the Stationers, London,1614) was a handbook for the standard procedures that Dalton saw as critical to the proper running of such Courts.

[21] The Court of Star Chamber was a Court that did much of its business from written material rather than emphasizing the oral processes that were a feature of the Royal Courts, but Star Chamber met its demise in 1642 and the Royal Courts assumed the dominant position still with their focus primarily on oral argument.

[22] For a discussion of the impact of the printing press on law and legal culture see David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture (Hart Publishing, Oxford 2014)

[23] For a very detailed study of the management of image by the Tudors and Stuarts see Kevin Sharpe Selling the Tudor Monarchy (Yale University Press, New Haven 2009) Image Wars: Promoting Kings and Commonwealths in England 1603 – 1660 (Yale University Press, New Haven 2010) and Rebranding Rule: The Restoration and Revolution Monarchy 1660 – 1714 (Yale University Press, New Haven 2013).

[24] More frequently seen in representations after the introduction of the printing press.

[25] For a detailed discussion of the iconography and representations of justice in architecture see Resnik and Curtis Representations of Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms. (Yale University Press, New Haven Connecticut 2011) Their principal thesis is that ‘the forms in which governments represent themselves provide windows into their aspirations. For further reading see David DesBaillets “Representing Canadian Justice: legal iconography and symbolism in the Supreme Court of Canada” (2018) 14 International Jnl of Law in Context 132 – 156 available online at https://www.cambridge.org/core/journals/international-journal-of-law-in-context/article/representing-canadian-justice-legal-iconography-and-symbolism-at-the-supreme-court-of-canada/75886182BB2B238C0E79B8C61861A819/core-reader (last accessed 6 June 2020)

[26] The design of the New Zealand Supreme Court Building is imposing and architecturally unique, especially in its design of the Courtroom but consciously adopts motifs and styles reflecting the multi-cultural community of New Zealand. Nevertheless the motif of the pillars as the supporters of the structure of justice, together with a more localized type of entablature rather than a traditional or classical one are present in the New Zealand Supreme Court building.

[27] Turkuler Israel “Review: Representing Justice: Invention, controversy and rights in city-states and democratic courtrooms” (2013) 12 Contemporary Political Theory p. e.10 – e.13

[28] The use of powerpoint or presentation software is an example of innovation in advocacy, although one that was initially contentious – see R v Haanstra HC Wellington T1155/00, 16 November 2000; R v D CA80/04 8 December 2004; R v Harriman HC Auckland CRI-2005-004-14921, 15 December 2006; R v Tukuafu [2003] 1 NZLR 659 (CA).

The use of electronic bundles is another innovation although the protocols require an approach that is imitative of the hardcopy Eastlight folders. See Senior Courts Civil Electronic Document Protocol 2019 https://www.courtsofnz.govt.nz/assets/going-to-court/practice-directions/practice-notes/all-benches/scced_0.pdf (last accessed 14 June 2020).

[29] Resnik and Curtis Representations of Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms. (Yale University Press, New Haven Connecticut 2011) p. 339.

[30] Andrew Langdon QC Inaugural Address 14 December 2016 Middle Temple Hall http://www.barristermagazine.com/inaugural-address-by-andrew-langdon-qc-chairman-of-the-bar-2017-delivered-in-middle-temple-hall-london-on-14-december-2016/ (last accessed 5 June 2020

[31] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 208.

[32] For a full discussion see David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture (Hart Publishing, Oxford 2014) and for the qualities of the printing press Elizabeth Eisenstein The Printing Press as an Agent of Change (1 Vol) (Cambridge university Press, Cambridge 1980) esp at chapter 2 page 43 et seq

[33] See John Langbein The Origins of Adversary Criminal Trial (Oxford University Press, Oxford 2003)

[34] The argument is developed in David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) at Chapter 2. I identify a taxonomy of 13 qualities which dramatically, paradigmatically, differ digital technologies from those that have gone before. The taxonomy for these qualities suggests three major classifications based upon the nature of the qualities. These classifications I have described as “Environmental”, “Technical” and “User Associated.”

The environmental qualities relate to change and the drivers for change. They are continuing disruptive change and permissionless innovation. The technical qualities are underlying aspects of the way in which Digital Communications Technologies, and especially the Internet, work. They are delineaisation of information, information persistence or endurance, dynamic information, volume and capacity, exponential dissemination, the non-coherence of digital information and format obsolescence. The final set of the three categories of qualities – user associated qualities – involve the way in which digital technologies provide opportunities for users to locate, acquire and process information The first three qualities, which I have grouped together because they represent a continuum, perhaps are indicative of the nature of a cross-over between what could be considered technical qualities – something inherent in the technology – and qualities that are primarily user focussed. The final quality relates to the way in which the Digital Paradigm enables information creation in a multi-authorial sense. They are the availability, searchability and retrievability of information, participation and interactivity

[35] Marc Prensky “Digital Natives, Digital Immigrants” (2001) 9 On the Horizon 1 http://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdf ; www.marcprensky.com/…/prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdf   (last accessed 23 February 2012). 

For a brief introduction to the development of Prensky’s theory see Wikipedia “Digital Native” http://en.wikipedia.org/wiki/Digital_native (last accessed 23 February 2012).

[36] Ronald Collins and David Skover The Death of Discourse (Caroline Academic Press, Durham N.C. 2005)  p. xix. For a more detailed discussion of the difference between fixed and digital texts see Ronald Collins and David Skover Paratexts (1992) 44 Stanford Law Review 509.

[37] Section 8 of the Courts (Remote Participation) Act 2010 mandates the use of AVL in criminal procedural matters where that technology is available and the participant is in custody unless a Judge or Registrar determines otherwise. However, protocols issued by the various Heads of Bench have mandated a return to the “in person” model and indeed run counter to the position mandated by statute.

[38] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford 2019) p. 182 et seq.

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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 9^th 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.

Justice in the Rear-View Mirror

When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We look at the present through a rear-view mirror. We march backwards into the future.[1]

Covid-19 has forced the Courts to adopt new ways of working in the lock-down environment.

Before the advent of Covid-19 the Court system in New Zealand operated as it has for decades – a paper-based system based on the courthouse as a physical meeting place, bringing together large numbers of people in a central location. It may be described as the “in person” or “physical presence” model with the “Courthouse as a Place”. The Courthouse has been symbolic of justice delivery, often an imposing temple-like structure with solid emblems representing the majesty of the law and the delivery of just outcomes and firm retribution for the wicked.

The threat posed by Covid-19 to public safety and to the community at large along with a lock-down preventing movement and gatherings has challenged that model. It has required change and that change has had to be implemented quickly so that essential justice services might still be delivered.

In some respects the “Courthouse as a Place” model still prevails. Courtrooms throughout the country have the ability to hear cases remotely using Virtual Meeting Room technology – a significant movement forward from the earlier use of Audio-Visual links (AVL) that have been in place for some years. 220 virtual meeting rooms have been set up across 267 court locations and these are being increased. More collaboration tools are anticipated and the number of virtual private network connections to the Court system have increased from 500 to over 2000.

In addition a form of electronic filing of court papers has been implemented although this is by no means a full-featured e-filing regime.

For a number of reasons it is not possible to conduct a full scale judge alone criminal trial remotely without the consent of the defendant, although under the present law it is possible to conduct a civil hearing using remote technology.

Nevertheless, the speed with which the Ministry and the Judiciary have moved to put these systems in place is admirable. It shows what can be done to implement new communications technologies within the justice system. Although what has been provided is by no means perfect, nor is it as wide ranging as those of us who favour greater use of technology in the justice system would like, it is a start – a proof of concept forced on us by necessity. It is something upon which the Court system could and should build to make justice more available and accessible in the future.

Before Covid-19 forced changes upon the system, there was no disaster plan for the circumstances that have been presented. The Spanish influenza epidemic of the early 20^th century could provide no answers to the problems facing the Courts. There was, in fact, no Plan B. But Plan B – or at least the beginnings of it – are now in place.

The problem is that these innovations, developed as they have been to meet the challenges of delivering justice in a lockdown, are seen as temporary. At the end of the Covid-19 emergency  we in New Zealand will return to “physical presence” model conducted in courthouses throughout the country. It is argued that courthouses serve an important role as the local face of justice for communities.

The suggestion is that the use of technology is not how justice should be delivered in New Zealand. At the moment the problem is that the use of technology has been forced upon us, like it or not, and the solutions arising should not be discarded as no longer fit for purpose or a temporary emergency expedient.

In the overall scheme of things the issue of remote access and videoconferencing is a small part of a much bigger picture that involves the digitization of the Court record. There are already solutions available for this such as that offered by Caselines and about which I was talking back in 2013!

But remote access and digital presence have been dismissed based on the perception that a digital Court system does not – cannot – replicate the level of public and community engagement in the processes of justice and it can’t really replicate the public understanding that flows from a Court house based system for justice. The current use of digital technology has been forced upon the Courts – a stopgap measure; a temporary expedient.

The view is that the “in person” model involving a face to face exchange involving the Judge, counsel and the defendant is important, along with the presence of the Court as a place where the community comes together to provide support for victims and for defendants. It is argued that it is by way of those opportunities for early interventions which can prevent re-offending and subsequent re-engagement with the criminal justice system. I gather that this approach is based on research done by a Professor Ian Lambie and to which Chief Justice referred in her paper to the Criminal Bar Association Conference in 2019.

The concern is that there seems to be an overuse of AVL which is considered lacking in the richness of the information that can be passed between people in a face to face situation. There is unhappiness with the increased use of AVL that the Covid 19 crisis has made necessary but it is recognized it a necessity.

In many respects I consider that the these views about AVL and remote hearings, informed in part by the view of Professor Lambie, are as much cultural as anything else. The majority of the judiciary, myself included, have grown up with the “in presence” model. It is what we are used to. The reality is that more and more people are becoming used to getting their information remotely and are able to make the necessary adjustments in their cognitive and reactive thinking. The human race is known for its ability to adapt and lawyers and judges must be part of this adaptation.

So where does this leave us? There are a number of realities that we have to face. The first is that whether we like it or not we are in the middle of a revolutionary process – and not a political revolution but a revolution that will affect our entire society. We simply will not return to the world as it was in December 2019. All will change – change utterly.

We have to recognize that the post-Covid-19 world will be a different one from that to which we are used. And the realities of the revolution will not become apparent for some considerable time. My own view is that there will be social disruption and dislocation that will continue until at least the end of 2021. Around about then we may see some form of stability – I do not use the word “normalcy” because that suggests a return. There will be no return.

As a result of the circumstances that have been forced upon us we have had to adapt to new methods of communication and information exchange. A whole older generation a few weeks ago thought an email was the cutting edge of technology. Within a very short period of time they have discovered that video calling their friends and family is not some black art for which they need a computer technician.

If there are lawyers and Judges who have made that discovery, they will then likely make the mental jump and ask why on earth the same thing cannot be usefully done in a court. Digital systems and remote hearings may not be the way for all cases but they can be used for many and may provide a more effective, relevant, accessible, versatile justice system than we had before.

Although I know that some of the arguments in favour of the “in person” “Courthouse as a Place” model are based upon elements of the Rule of Law and the importance of full engagement and the symbolic trappings surrounding the administration of Justice, the changes that have been forced upon us demonstrate the fragility and brittleness of those arguments and indeed of the system itself.

But to say that it will be “business as usual” once things settle down, to suggest a full return to the clumsy, archaic, rear view system that has been so much a part of the past ignores the fact that there are effective technological system for the delivery of justice services.

Covid 19 and the lockdown forced the Courts to scramble for solutions to important services that they provide. Why? Because there was no Plan B. The Covid 19 crisis demonstrated that it was unacceptable to argue that “this is the only way because it is the way that we have done it.”

What the Covid 19 crisis has done is forced us to recognize that we must have alternatives. There will be other crises in the future that will require us to move fast and break things. We should always have a Plan B and one that can be deployed seamlessly and easily to whatever threats arise. Remote hearings and greater use of technology form part of that Plan B, have been deployed and can be improved and developed further.

The ball of opportunity has been placed before us. It may be, if we pick it up, there may be a few stumbles and a few drops. Better that than never to have picked up the ball at all.

---

[1] McLuhan, M. and Q. Fiore. The Medium is the Massage: An Inventory of Effects. Co-ordinated by J. Agel. (1967). New York, London, Toronto: Bantam Books. pp 74 – 75.

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.

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[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

Digital Assumptions

On 6 March 2018 New Zealanders are required to fill in their census forms. This important information gathering exercise, undertaken by the Statistics Department, is necessary for Government planning and the provision of services.

In the past on the day decreed, families or individuals would fill in their census forms – earlier sent out in the mail – providing information that was accurate on that day. The forms would be collected by an official and taken away for analysis.

This year things are different. The first thing is that the forms will not be mailed. What citizens will receive will be a letter with an access code. This is a unique identifier that allows the individual to complete a census form online. The details of the process may be found here

And herein lies a problem.

Online completion of a census form and the provision of census information is the default position. If a citizen doesn’t want to complete a census online he or she may phone an 0800 number and hard copy census forms will be sent out, but the time frame is tight and the postal service is slower than it used to be. The distribution of access codes commenced on 23 February. I write this on 25 February and haven’t seen mine yet. My next postal delivery is on Tuesday 27 February (daily postal deliveries ceased some time ago) so if I elect to complete the census in hard copy I have just over a week to have the forms delivered.

And if the forms are not with me and if I don’t have the facility or ability to complete the census online I will have committed an offence. And that is another significant problem with the digital default position.

The digital default position relies on a number of assumptions. It assumes that participants have a device that allows them to complete the census online. In New Zealand that assumption may be correct given the proliferation of smartphones and other digital devices. Then there is the assumption that most citizens will have access to the Internet via an Internet Service Provider (ISP). Those that do not are excluded from the process. Then there is the assumption that citizens will be comfortable completing on online census and committing their information to the vagaries of the Internet. What assurances do citizens have that their information is secure?

The digital divide is a reality in New Zealand as it is elsewhere. This is recognised by our Minister for Broadcasting and Communications, Ms Clare Curran who wishes to see an end to the digital divide.  Notwithstanding studies that suggest a high uptake of the Internet in New Zealand, many of our citizens, through no fault of their own or as a result of disabilities, are unable to simply go online and complete the census. And if they don’t have the presence of mind to ask for the hard copy census forms and complete them personally or with an ammanuensis then they may find themselves in the unenviable position of having committed an offence.

Admittedly, the prosecution does not automatically follow, and Statistics Department people will perform a followup if forms have not been completed – digitally or in hard copy. But the fact remains that there is potential liability for an offence. And that liability in my view should not arise from a digital default based on a number of possibly incorrect or nuanced assumptions.

So what could have been done. One solution could have been to send out the hard-copy census forms along with an access code so that those who wished to complete the census online could do so. Those who wished to complete the census in hard copy by way of preference or an inability to complete online could do so. Digital by default should come later when there is an assurance that the digital divide has decreased.

An alternative, if the Department insisted on the digital default position, would have been to send the access codes out a week earlier. The assumption that the postal service will get the papers to those that request them on  time is not a valid one.

But there is a bigger issue here and it relates to the move to provide government services online. As has been noted, the digital divide is a reality in New Zealand. The sad thing is that often those most in need of government services fall on the wrong side of the digital divide.

I have advocated in the context of facilitating public access to legal information online –  statutory and case law information – that there should be dedicated kiosks provided in public areas like libraries, public buildings, government buildings shopping malls and the like so that those who do not have the necessary devices or accounts can access information free of charge. As we move towards the delivery of online legal services and even online courts and dispute resolution services, kiosks become a vital aspect not only of access to law but also access to justice.

The online completion of the census could also be undertaken via such kiosks as may many other government services.

The proposition is a simple one – if the State is going to move to digitisation of its services and required the fulfillment of citizens’ obligations by online means, the State is obliged to provide the means to facilitate such obligations for all its citizens. To do otherwise would be to create a class of digitally disentitled.

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:

View this document on Scribd

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.

 

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.