Technology Remains an Afterthought for Many Within the Legal System

Back in late September, the Court of the Future Network, in partnership with the Institut des hautes études sur la justice and the Cyberjustice Laboratory, organised its annual Court tour which – this year – took place in California, home of Silicon Valley and many technological innovators. For this very reason, the tour took a technological turn and focussed on some of the key technological issues confronting courts, such as:

• The paperless courtroom: digital documents and evidence display
• Cyber security
• Immersive video-conferencing
• Integrated courtroom management
• Social media for courts
• Remote interpreting
• Online Dispute Resolution and Artificial Intelligence

The purpose of these tours is to allow judges, architects and other stakeholders to visit newly erected courthouses and learn from the mistakes and successes of those behind their construction. One lesson learned from this particular tour and the topics that were addressed is that, while one would expect California courtrooms to be better equipped technologically than most of their Canadian equivalents, one would be wrong. In fact, considering the proximity to technological giants such as Cisco and Apple, the lack of innovation within some of the courtrooms on the tour was surprising.

This is not to say that the visited courtrooms were void of technology (they contained the required desktop monitors, videoconferencing equipment and document cameras) but this equipment is no different than that being used elsewhere. Furthermore, and even more surprising considering the augmented access to expertise, was the fact that the technology being used was sometimes set up in a manner that shows very little forethought.

For example, one courtroom we visited had the jury sitting directly behind the prosecution’s table with a perfect view of their screens. When we asked questions about the risk that a juror might peek at documents over a lawyer’s shoulder, we were told that the screens are turned off when sensitive data that the jurors shouldn’t be allowed to see is shown. As a result, prosecutors would have to move to the podium to see said information (which would then be in full view of the gallery). Furthermore, this setup also means that a lawyer cannot have his own laptop in court since jurors would be able to read her notes. This type of situation can easily be fixed by putting tables at an angle and applying privacy screen filters, but that implies that court technology experts be consulted during the courtroom design process, not summoned once the furniture is built and installed (which seems to have been the case for at least one of the courthouses we visited).

In other cases, the lines of sight of lawyers and judges were obstructed because screens were placed on the tables, not built into them to limit visual obstructions. Finally, cameras were often placed at an odd angle, at the back of the room, and therefore didn’t produce the optimal angle and image quality for interacting with a displaced third party.

One could excuse such poor planning if these courtrooms had been designed in the 18^th century and later retrofitted with technology, but the courthouses we visited were built within the last 10 years. Worse of all, the technology is maintained by competent and talented technicians who are aware of the limitations of the technology being used, but, in our understanding, do not necessarily have the budget or power to execute change.

Our goal here is not to overly criticize the architects and builders of these new courthouses. They surely had financial and time constraints that we are not aware of that could explain the lack of technological investment. We simply wish to use our experience in California as yet another example of an overarching problem within the legal community: technology remains an afterthought. While great strides have been made across the country to facilitate efiling, create paperless courts, and allow for videoconferencing, the necessary forethought required in setting up these technological solutions is often lacking: Equipment and software are all too often bought and installed without analysis or foreplanning. Tools designed for accounting or sales pitches are “adapted” to suit a court’s needs by individuals who don’t understand what those needs are. Again, this is not to say that there are no well-crafted legal software solutions out there; there are. However, for numerous reasons, these solutions are unfortunately not always the ones making their way into the courtroom.

These examples and others are why, back in 2010, the Cyberjustice Laboratory received funding from the Social Sciences and Humanities Research Council to bring together an international team of experts to study how technology could and should be used by the courts. The primary purpose of this research was to “identify how computerizing justice can improve access to it and increase its efficiency”. With this project soon coming to an end, it is time to reflect on what lessons our research has allowed us to learn, and to share these lessons with those within the legal community so that, hopefully, the individuals who draw up the plans for future courthouses will take note and make technology an integral part of their design, not an afterthought.

Of course, summarising seven years of research conducted by over three dozen researchers and partners is not an easy task, nor one that we would even try to take on in one column. This is why, over the next few months, we will highlight different papers, studies, and pilot projects conducted under the auspices of the “Towards Cyberjustice” project. As our goal was to step away from the purely theoretical debates we academics are often criticised for, and to create guidelines and tools that could be implemented by those within the legal community, we deemed it useful to use our presence on Slaw to introduce our research to court administrators and decision makers so that interested parties could benefit from the fruits of our seven-year labour.

Of course, this is not to say that our work is done. Emerging technologies, such as those incorporating artificial intelligence and blockchains, are still transforming our view of courtroom architecture, tools, and procedure. However, as we start to study these somewhat “new” technologies, we still need to address how current tools can and should be incorporated into the legal process to offer optimal results, i.e. ones that will facilitate debate, testimony, and the presentation of evidence, without turning the courtroom into the bridge of the starship Enterprise.

Therefore, over the next few months, we will present summaries of our work in key areas such as the use of ODR, technology inside the courtroom, and videoconferencing (to name but a few).

Hopefully, these reports will encourage stakeholders to access and use our team’s research so that it may benefit litigants over the coming years.