TECHNOLOGY, Judges and VIRTUAL COURTS

Chris Crawford once said that “Technology is a powerful enabler that can empower courts to meet core purposes and responsibilities, even while severe economic pressures reduce court staff, reduce hours of operation, and even close court locations.

To harness technology for this purpose, serious efforts are needed to examine process-reengineering opportunities, and courts must plan to

(a) migrate from document to content management and

(b) initiate customer relations management to improve the quality of justice, access to justice, and public trust and confidence in courts as an institution.”

Judges are commonly portrayed, by the media and in fiction, as old- fashioned and otherworldly. Consistent with this view, you might expect the judiciary in advanced jurisdictions to be made up of the last of the neo-Luddites. The reverse is so. A lot of judges are now committed users of technology and are keen to embrace all basic systems that offer practical benefits in their everyday work, such as email, word processing, and online research.

Looking beyond these rudimentary applications, how profoundly could technology affect the work of judges? Prior to now, we would all come to the conclusion that it was neither possible (technically) nor desirable (in principle) for computers fully to take over the work of judges. Judicial decision-making in hard cases, especially when judges are called upon to handle complex issues of principle, policy, and morality, is well beyond the capabilities of current computer systems.

However, the techniques and lessons applied by judges as much as to other lawyers, such as multi-sourcing can be taken over with the aid of technology.

With technology, the judiciary would clearly benefit from the use of document automation, where much of what appears in these final documents is standard wording with minor variations.

Most conceivable systems for judges are ‘sustaining’, however, there is one category of system—online dispute resolution (ODR)— that could conceivably challenge the conventional judicial role.

In a virtual court, one or more judges sit in some kind of hearing room, dispensing justice in the traditional manner. The break from tradition is that some participants appear virtually across some video link rather than in person. But there are steps now being taken beyond the virtual hearing into the world of online courts and online dispute resolution (ODR). ODR can also help reduce conflict.

Some ODR systems are specifically designed to enhance collaboration and emphasize common ground versus differences. Family law cases, juvenile, probate, consumer debt, and housing are uniquely suited to ODR.

In this brave new world, no traditional courtroom is involved. Instead, the process of resolving a dispute, especially the formulation of the solution, is entirely or largely conducted through the internet. A court becomes a service rather than a place.

Virtual courts, online courts, and advanced ODR may be seen, though, as threatening everyday conceptions of fair trials. However, if virtual courts, online courts, and advanced ODR deliver a much speedier resolution, quicker even than the reasonable time within which justice requires that a case should be heard, then this may well offset the disappointments many face in the delay of justice.

Could well-designed online courts indeed become symbolic of a new, more inclusive era for dispute resolution? While virtual trials, online courts, and advanced ODR may seem alien or outlandish for policymakers and opinion formers of today, few of these individuals hail from the internet generation. Future generations, for whom working and socializing online will be second nature, may feel very differently. Indeed, for tomorrow’s clients, virtual hearings, online courts, and ODR together may improve access to justice and offer routes to dispute resolution where none would otherwise be available.

 

ACKNOWLEDGEMENT

‘Justice, Lawyering and Legal Education in the Digital Age’ (2013) Staudt, R.W. and Lauritsen, M. (eds.),

‘Technology-Assisted Review in E-Discovery Can be More Effective and More Efficient Than Exhaustive Manual Review’ (2011) XVII(3) Richmond Journal of Law and Technology 1. Grossman, M. and Cormack, G.,

The Lawyer Bubble Harper, S.J., (New York: Basic Books, 2013).

The Relevant Lawyer Haskins, P.A. (ed.), (Chicago: American Bar Association, 2013). The Trial (Harmondsworth: Penguin, 1983). Katsh, E. and Rabinovich-Einy, Kafka, F., O.,

Digital Justice: Technology and the Internet of Conflict (New York: Oxford University Press, 2017). Katz,