At the foothills of online court reform

Is court a service or a place? Do we really need to congregate together in physical spaces to settle all our differences or, in a digital society, might there be other ways to resolve or even avoid legal disputes? These are questions I have been asking since the 90s.

Until recently, other than in the lawtech community, there was little appetite for discussion of these issues amongst mainstream lawyers and judges. If there was interest in technology, it was in automating and streamlining the administration of the courts rather than in more radical change. Indeed, the first 60 years of court technology were devoted largely to grafting digital systems onto existing processes and not to the use of technology for the development of entirely new ways of delivering court service. We may live in a world that is increasingly enabled and supported by technology but the work of our courts in England and Wales has not changed fundamentally since the late 19th century.

In March 2019, however, because of COVID, courtrooms around the world closed, and judges, lawyers and court administrators moved with remarkable alacrity and flexibility to conducting hearings remotely, largely by video. As recorded on Remote Courts Worldwide, remote hearings have been running in more than 160 jurisdictions. The pros and cons of these hearings, as compared with traditional courts, are now the subject of great debate and research. At the least, many minds have been opened during the pandemic to alternative ways of resolving disputes. And some minds have been changed.

However, the shift to remote hearings does not constitute, as some suggest, a shift in paradigm. Dropping hearings into Zoom is not the end game. In my view, we remain at the foothills of technological reform to our courts.

My own 40-year interest in the use of technology in the courts is not abstract or scholarly. It is largely practical. I worry about our court system – its affordability, its accessibility, its intelligibility, and, in turn, its credibility. I do not believe that systematising what we have today will increase access to justice to acceptable levels. Nor will it help us to maintain our position as a global centre for dispute resolution.

Broadly speaking, I believe our challenge is to preserve what works well in our traditional system and integrate this with a selection of existing systems, emerging systems, and some that, no doubt, have not yet been invented. I envisage a court service for the future that is easier to use than today’s and in large part delivered online. The processes of starting a case, communicating with the court, storing documents, monitoring progress, exploring early settlement, arranging hearings, attending preliminary hearings, and receiving support along the way will be conducted electronically.

As for final hearings themselves, I expect and recommend a blend of physical and remote hearings. Much work remains to be done in identifying what types of final hearings require appearance in physical courtrooms and which can be conducted remotely. We need much more debate on this central issue. The discussion used to be whether there was any scope for alternatives at all to physical hearings. The question now is the extent to which remote court service is appropriate and desirable.

There are different kinds of remote hearing. There are audio hearings. There are video hearings. And there can be hybrid versions of each, where some participants are together in person, while others are connected electronically. My own particular interest is in a different option – asynchronous online process, a technique that I think is well suited to the handling of many low value civil claims. I also call this online judging. It involves the determination of cases by human judges but not in a physical courtroom. Instead, evidence and arguments are submitted through an online service. In turn, judges deliver their decisions not in open court but again via an online platform. The proceedings are not conducted in one live sitting by video, audio, or real-time chat. There is no hearing, virtual or otherwise. These proceedings are asynchronous, which means that the participants do not need to be available at the same time. It also means they are often more convenient, quicker, and less costly than conventional courts. Online judging, I cannot stress strongly enough, is not appropriate for all cases. But I believe it is well-suited to many disputes that current courts struggle to handle efficiently.

The idea first surfaced in the UK from the online dispute resolution advisory group of the Civil Justice Council. I chaired that group and we reported in early 2015. Lord Briggs (then Lord Justice Briggs) endorsed and built on our work in late 2015 and mid-2016 in his interim and final reports on the structure of civil courts.

In my book, Online Courts and the Future of Justice (Oxford University Press, 2019, 2021), I propose a full architecture for court service based on online judging. But I go further there, and argue that technology can and should enable courts to deliver more than judicial decisions. These extended courts, as I call them, should provide tools, for example, to help court users understand relevant law and the options available to them. They should guide users in completing court forms, and help them to formulate their arguments and assemble their evidence. They should also offer various forms of non-judicial settlement such as negotiation and early neutral evaluation, not as an alternative to the public court system but as part of it. Less dramatically, everyday techniques and technologies – apps, smartphones, portals, messaging, video calling, chat bots, livechats, webcasts – should help non-lawyers interact much more easily with the courts. The extension here, and it is a major change, is that these systems are designed primarily for litigants-in-person rather than for lawyers. And these court users can themselves file documents, track cases, engage with court officials and judges, and progress their disputes by using intuitive, jargon-free systems.

Instinctively, most judges and lawyers bridle at these ideas of online courts and extended courts. They have greater confidence in traditional methods. My counter-argument is that, for many cases and many people, the traditional system costs too much, takes too long, and runs the risk of looking and feeling out of step in a digital society. And I also come with evidence. Successful online courts are emerging around the world – the best example is the Civil Resolution Tribunal of British Columbia.

I do not claim that my conception of online courts is the last word. Rather, I am seeking to start a conversation about how we might harness the power of our increasingly capable systems in increasing access to justice and in modernising our processes for the resolution of legal disputes.