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 20th 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.


[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:

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.