Washington Lawyer - May 2020 - 22

FEATURE
Here in the United States, the National Judicial College surveyed its
members and found most judges were not prepared to deal with
COVID-19 when the virus outbreak first hit. Six out of 10 judges in the
survey did not feel "adequately prepared to deal with the potential effects
of an outbreak and quarantine, such as how to weigh personal rights
against public safety, how to ensure continuity of court operations, and
whether to relax evidentiary rules and allow video testimony to avoid
infection," the college said.

Courtesy of J. J. Prescott

If you think about it, literally thousands and thousands of
people take the day off work to go deal with a traffic ticket.
That can't be a good solution for our economy. There is this
almost kind of a market failure because courts say you are
going to follow our rules.
J. J. PRESCOTT
Court Innovations (U.S.)

typically not that important, and you could start with the assumption that
online courts will work and then the judge decides later on, 'Hey, I gotta
look in somebody's eyes to decide this one.' They can say, 'Let's not go
the online route; let's go the more traditional route.' There is this idea that
judges retain discretion," Prescott says. "I've never thought of it as a useful
thing to force on judges or litigants. But instead, it is another opportunity
for courts, in the appropriate place, to open themselves up."

THE INEVITABLE IS HERE
The worldwide coronavirus pandemic appears to have brought the need
for online courts to the fore in urgent and unexpected ways.
In Australia, the New South Wales Supreme Court suspended new jury
trials and mandated that filings and hearings be moved to online services.
In the UK, emergency legislation from Parliament to combat the coronavirus outbreak included provisions allowing both criminal and civil proceedings to be handled by audio and video technology where available.
"If we want to maintain access to justice and uphold the rule of law, then
there is no option but for judges to work remotely in virtual courts and
online courts. In England and Wales, the judges and the government are
working all hours to make this happen," Susskind says. "It is time to come
together, globally, to accelerate the introduction of virtual and online
courts. We have no choice. Incidentally, there is little merit in lamenting
the lack of past investment nor in predicting that the technology will fail."

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MAY 2020

Certainly, the coronavirus pandemic has accelerated conversations
around how to dispense justice when society grinds to a halt, but
Susskind and others say there were already signs of countries moving
toward the development of online courts prior to the outbreak.
"Barely a day goes by that I don't get an inquiry about coming to speak in
South America, Africa, or the Middle East, from countries that are trying to
embrace change - not only to introduce 21st-century systems but also
wondering if they might leapfrog," Susskind says.
China's first online court resolves internet-related disputes for the country's 800 million internet users concerning e-commerce transactions,
online loans, domain name disputes, and online copyright issues. Courts
in Hangzhou, Beijing, and Guangzhou offer online legal help to visitors
through robots in the lobby (the idea of an android robot with a screen
to guide people through litigation has taken hold), e-filing facilities, voice
recognition systems that eliminate the need for stenographers, and dedicated virtual courtrooms. AI tools are available to help draft claims and
arguments. All of this is backed up by external mediation services connected to the courts via remote platforms.
In Singapore, personal injury claims arising from motor vehicle accidents are
increasingly handled by an outcome simulator that helps guide potential
litigants on the insurance value of their claims before they file suit.
Australia's eCourtroom helps federal judges manage certain cases.
Integrated with an electronic filing facility and a transcript facility
viewable by all parties, eCourtroom is explicitly designed to replace
a traditional courtroom for only those matters requiring the consideration
and determination of a judge, Susskind writes.
Salter is also finding equal international interest in online courts. "Five
years ago, when I was appointed to this position, there were zero countries talking about an online court system. And now I travel around the
world because there are so many jurisdictions that are really interested
in our program and are starting their own pilot program," Salter says.
To be sure, there are pros and cons to the development of online courts.
Susskind, Salter, and Prescott all see the potential for improving access to
justice, but it's not a straight-line connection.
"We are at a critical time where we need to decide what 'online' looks like,"
Salter says. "Do we only care about taking these old-fashioned processes and
making them happen online? Or do we do the much harder, fundamentally
important work of redesigning all of these processes using human-centric
design so that we are moving away from purely the interests of lawyers and
judges toward the needs and the interests of the public?"

William Roberts is a regular contributor to Washington Lawyer.

Washington Lawyer - May 2020

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