The future of Courts is not in the building… In mid-March 2020, court buildings around the world began to close in response to the rapid spread of a newly identified coronavirus, SARS-CoV-2.
Within days, alternative ways of delivering court service were put in place in many jurisdictions. The uptake of various technologies, especially video, was accelerated in the justice systems of numerous countries.
There remain some skeptics and critics, but in light of the experience during the crisis, there is certainly greater acceptance now than in February 2020—amongst lawyers, judges, officials, and court users—that judicial and court work might be undertaken very differently in years to come. Minds have been opened and changed over the past few months. Many assumptions have been swept aside.
Online courts provide ‘adjudication online’ – the determination of cases by human judges but not in physical courtrooms. Instead, evidence and arguments are submitted through online platforms through which judges also deliver their decisions.
Online courts also use technology to enable courts to deliver more than judicial decisions. These ‘extended courts’ provide tools to help users understand relevant law and available options, and to formulate arguments and assemble evidence. They offer non-judicial settlements such as negotiation and early neutral evaluation, not as an alternative to the public court system but as part of it.
The world we live in faces constant threat, with risks of barely functioning court systems, greatly reduced access to justice, and, in turn, a potential weakening of the rule of law.
The judiciary around the world face three major challenges. Two of these arise directly from the virus and so are new, while the third is long-standing.
Statistics show that the courts of some jurisdictions are labouring under staggering backlogs – 100 million cases in Brazil, 30 million in India. More people in the world now have internet access than access to justice.
In the most general terms, we call this the “access to justice” problem. We can choose to blame the widespread reduction in public legal funding, we can argue that the current judicial and court machinery is disproportionate in many cases, we can claim that sometimes lawyers are the problem because they can inflame disputes, we can regret how little data is available to help us even to understand the dilemma, we can condemn the system for being antiquated and arcane, and more. But whatever explanation is preferred, the unvarnished reality is that most people on our planet cannot afford to enforce their legal entitlements in public courts. Globally, the statistics are stark. According to the Organization for Economic Co-operation and Development, only 46 percent of human beings live under the protection of the law.
You may ask yourself that in an ever-changing landscape, how should governments and judiciaries prepare for the future?
Professor Richard Susskind, president of the Society for Computers and Law and technology adviser to the Lord Chief Justice of England and Wales, recommends that court services around the world should be planning and proceeding in three-time frames, with the following objectives:
Short-term: to stabilize and improve the ad hoc systems that are currently being used.
Medium-term: ensure that the experience of remote courts informs and, where appropriate, leads to changes in any reform and digitization programs that were being pursued prior to the crisis.
Long-term: radically redesign our court systems and put in place a new configuration of people, processes, technologies, and physical spaces that is user-centered, technology-enabled, sustainable, accessible, and better than what we have today.
In law, as elsewhere, the virus is challenging our assumptions about what is possible and what is desirable. The widespread, and fairly successful, introduction of remote courts around the world has opened the minds of many judges, lawyers, and policymakers who would have balked, not long ago, at the very idea of nonphysical hearings.
Finally – and most importantly – the consideration of new technology demands careful review of the role of the courts in society, and a fundamental confidence that important elements of that role are not being sacrificed.
A 2011 Opinion of the Consultative Council of European Judges on justice and information technologies identified a number of lines which technology should not be allowed to cross, including:
Both the challenges and the opportunities facing today’s court systems are gradually becoming understood with greater clarity. But it is a given that in keeping with the general pace of technological development, both new challenges and new opportunities will arise with fearsome frequency.
In conclusion it is needful to propose that the most important factor for the future development of the courts is not big data, or online services, or eDiscovery, or any of the other technologies we have referenced. Rather it is the people who work in the courts: the judges and magistrates who sit on the bench, the courtroom staff who manage the lists, the IT and support teams who facilitate their operations.
The court is there to serve its community; and it is the way these people understand, react to and respond to the changing needs of that community, and the ongoing pressures of budgets and legislative demands, that will determine whether the courts in 20 years will be seen to have kept pace with modern times, or fallen off from the race.
It is up to the Courts leadership to display adaptability and foresight; a need to develop a keen understanding of the benefits of technology, both the technology available today and the new technology that will emerge tomorrow; and they need the courage and strength not only to defend the essential elements of their role in the community, but also to imagine a clear vision of how that role will evolve in the future to marry the best of IT-enabled services with justice that maintains and improves its reputation for transparency, timeliness and ease of access.