We live in the age of exponential technological growth and of unprecedented data production, storage and analysis. We live in the age of artificial intelligence, the internet of things and a whole other spectrum of disruptive technologies. It is now more than ever that we ought to ground our fears and pave the way for justice to migrate, not far, but on a more accessible and viable space, that is as everything nowadays, online. Is this something new? No, it is not. Does justice have to change the way it is delivered or even the way it is made? No, it does not. Then, how is this transmission going to be initiated? A shift to online courts, unlike virtual courts, that seems not so radical anymore, is expected to solve the access to justice problem i.e. high litigation costs – litigation time – incomprehensible process, except of course for lawyers. Access to justice is a fundamental component of the rule of law. These ideas stem primarily from the twofold suggestion of Richard Susskind, the world’s most cited author on the future of legal services.
The first one is called ‘online judging’ and the second one is called ‘extended court’. In both these concepts the first impression is the one of extermination of the human interaction and experience component, which is of utmost significance to almost every litigation lawyer out there. However, online judging refers to the idea of an electronic only exchange application to some of the most critical components of the trial stage such as the giving of evidence and the submission of arguments. On a first glance, this application makes perfect sense for small and civil claims. However, what is already happening in so many parts of the world via zoom hearings, is not what is here being suggested. This procedure for online judging will not be synced and thus will do away with the prerequisite for concurrent presence of the parties.
Turning now to the extended court and its core aspect of the self – represented litigant (‘SRL’). This seems to be the solution in the increase of the SRL that happens primarily after an economic crush, such as the current one. This increase often leads to two deficits as explained by Sir Terence Etherton in his 2017 speech. The justice and efficiency deficit which refer to the individuals lack of knowledge of substantive law or procedure that in turn place greater than normal burdens on SRLs themselves. Susskind suggests that the notion of extended courts is primarily attributed to an encouragement and interaction of SRLs with justice. This can be achieved by the current technological platforms and their establishment in the court setting by providing tools to help users to understand their rights, duties, the options open to them, and systems that advise on or bring about non-judicial settlement, not as an alternative to the court service but as part of it.
It is important to note that these proposals do not have to do with the effects of technological change on substantive law but rather on how technology can contribute and facilitate access to justice and especially in civil disputes. However, following UK’s example we must first achieve some sort of basic usage of initiatives like e-filing, computer-assisted transcription, document display systems and electronic presentation of evidence.
Let’s not forget that making this case, any kind of technology exists primarily to work with and not against human intelligence. That is how litigators can and will achieve more time on solving important legal issues along with helping reinstate the public’s trust to the justice system.
John F. Kennedy
“Change is the law of life. And those who look only to the past or present are certain to miss the future.”