“The Future Has Arrived — It’s Just Not Evenly Distributed Yet.” – William Gibson
In “Online Courts and the Future of Justice”, Richard Susskind proclaims that our courts are moving towards radical change. Conceived in the dark ages and modified in the 19th century, our courts are now overwhelmed by paper and archaic processes. The operations of our courts seem increasingly out of place in our digital society.
Susskind predicts that we will see court services delivered in a blend of physical, virtual, and online courts. The 2020s will be a period of redeployment of lawyers and judges. By 2030, our courts will be transformed by technologies, many of which are yet to be invented.
Access to justice requires that we work towards transformation of our courts. There is a growing number of self-represented litigants and even more people that opt-out of using our courts altogether. Whether that be due to money, inconvenience of using the courts, or the complicated processes that seem decipherable only to lawyers, people feel excluded by the court system.
Susskind writes that online services can bridge the gulf between people knowing the law and enforcing their rights. These services can take the form of virtual hearings or online courts.
In virtual hearings, some or all of the participants participate by video. This includes the judge, lawyers, court clerks, and clients. Events happen contemporaneously.
In online courts, the evidence, arguments, and judicial decisions are submitted through an online platform. There is no oral hearing. Events do not happen contemporaneously. The process is akin to an email chain.
Susskind champions the use of online courts for low-value claims, which tend to be dominated by a small number of life events. The adversarial system can still be protected in this forum. At the heart of the adversarial system is not the oral hearing but that arguments are presented by both sides to an impartial adjudicator, whose decision is backed by the coercive power of the state.
Susskind sees online courts providing a far wider range of services beyond the adjudication of claims. Additional services include:
- tools to help the users to understand their rights, duties, and options available to them;
- facilities that assist in marshalling evidence and formulating arguments; and
- systems that promote alternative dispute resolution.
These tools would incorporate animations, cartoons, videos, flowcharts, and other visual guides.
The first generation of online courts would involve humans delivering decisions through an online platform. In the second generation of online courts, artificial intelligence would be used to adjudicate and contain claims.
Artificial intelligence systems would help users categorize their problem, understand the applicable law, guide them through available remedies, and facilitate settlement by letting users know the likely outcome of the case.
The tasks of building online courts include redesigning the underlying processes, drafting new rules of procedures, consultation on new services, piloting new services, procurement, system development, adjusting services, training, and roll-out.
Presently, the Civil Resolution Tribunal in British Columbia is the most advanced online court in the world. Launched in 2016, the tribunal resolves claims under $5,000, condominium disputes of any amount, and motor vehicle cases up to $50,000.
- There is a tool that helps users understand their legal position, using a rule based expert system called Solution Explorer.
- Then there is an online negotiation facility that allows users to try and reach an agreement informally between themselves.
- Finally, there is an adjudication process.
- All CRT forms can be submitted in paper or online. However, only 1-2% of people choose to do so in paper.
In the book the Future of the Professions, Richard Susskind and Daniel Susskind write that “Many professionals seem to have lost sight of the reasons why we have personal interaction in the first place. It is a feature of the one-to-one nature of the traditional approach. As a consequence of its longstanding presence, it has gained an aura of indispensability. But we have to remember its origins – only as a feature … of sharing practical expertise. If, however, we can find better ways of sharing that expertise that require less personal interaction, then we should not defend this interaction for its own sake.”
Susskind encourages designers to think of the outcome that litigants want. Litigants do not want courts, judges, or lawyers. “They want to not have a problem at all. They want their disputes resolved with finality…Outcome thinking leads us to worry far less about perpetuating old processes and methods than whether reforms will bring about better results.”
Controversially, Susskind proclaims that “we should dilute the adversarial process if it enables us to deliver court services more widely, more quickly, at a lower cost, in a less combative way, and in a form that is intelligible to lay users.”
(Views are my own and do not reflect the views of any organization. heatherdouglaslaw.com)