A motherboard - lacking in the crucial skills of empathy and judgment. Image: Jonathan Zander/ Game Gavel, CC-BY-SA-3.0. Some rights reserved.
Lawyers and the legal system have cautiously embraced the technological revolution. Advances in communication and processing information have already transformed legal practice. Yet doubts arise when technology begins to replace functions which seem to need exclusively human qualities, such as judgement and empathy.
In September 2016 the Lord Chancellor announced that the £1 billion programme of court reform to which her department is committed would include an online court for civil disputes. The advantages of online communication in the stages leading up to the adjudication of a dispute are clear enough, but should we allow decision making without human intervention? We may accept the driverless car but are we ready for the lawyerless or even judgeless court? And is the litigant pursuing a claim or defence online on a level playing field with an opponent advised by a live lawyer? The danger in online justice is that the current imbalance between the parties with and without skilled assistance will grow ever wider.
The danger in online justice is that the current imbalance between the parties with and without skilled assistance will grow ever wider.
In her announcement, Liz Truss, the UK's Lord Chancellor, referred to proposals made by Lord Justice Briggs in his Civil Courts Structure Review, published in July 2016. The 62 recommendations in the report (most of which are about the distribution of responsibilities among the existing courts rather than the online court) have since been endorsed by the Lord Chief Justice and the Master of the Rolls.
Echoing Briggs, Liz Truss said: “we will create a new process to resolve many disputes entirely online using innovative technology and specialist case officers to progress routine cases through the system and reserving judicial time for the most complex cases…. When hearings are required , they may be held over the telephone or video conference, focusing court resources on the most complex and difficult cases.”
The Briggs proposal adopted by the Government does not in fact replace judges but it certainly seeks to remove lawyers. While limited at this stage to civil money claims under £25,000 it is obviously the thin end of the wedge if it is deemed successful, because it will cut costs. Indeed another online scheme for motoring offences and minor criminal cases is already being developed.
The online civil court will be conventional - staffed by judges and civil servants. The final decision on substantive rights and duties will be made entirely by judges. However, the online court “will have resolution rather than determination at its heart”. Dispute resolution will no longer be “alternative”. Compromise, rather than the fairest outcome, will be the primary objective.
Compromise, rather than the fairest outcome, will be the primary objective.
The scheme adopts the idea proposed by last year’s report Delivering Justice in an Age of Austerity published by the human rights and law reform organisation, Justice. The report proposed the creation of a body of legally qualified “registrars” – Briggs prefers to call them “case officers”. Their function is to manage the second stage of a process which starts with what Briggs calls “automated online investigative triage”. The first stage is entirely online, consisting of sets of sequential screens on which the claimant or defendant can formulate his or her grievance or response in an online pleading “entirely free from legal jargon” as Briggs says “but identifying the key facts relied on”. Within this process, for which models are available in British Columbia and the Netherlands, the parties will be required to exchange documentary and other evidence.
The case officer, having received this material, will select the most appropriate means for resolution of the dispute which the material presents. A range of mediation opportunities can be provided, with the option for either party to go to the judge for the determination of substantive rather than merely procedural questions.
Unfortunately the online court risks endangering justice in all but the most clear cut cases.
Using technological advances to improve the judicial system is an indisputable benefit but technological change which compromises justice in order to save money is unacceptable. Unfortunately the online court risks endangering justice in all but the most clear cut cases .
It may help some of those currently denied access to the law because they cannot afford professional assistance, but only if they are computer literate or can be helped by those who are. But even for those who can navigate the system, can they match the capacity of a corporate or institutional opponent with professional assistance?
The case officers or registrars are meant to be impartial. Their function, desirable as it may be, is to clarify issues and save judicial time. But they will not provide the lawyerless litigant with the vigorous partisan representation, tactical know-how, and experience available to an affluent opponent.
A fair justice system and a fair society demand equality of arms and a level playing field. A number of recent economy measures – closing of courts, reduction of court staff, increased fees for litigants, draconian cuts to legal aid, fixed fees which reduce profitability for claimants’ solicitors – have combined to widen the inequality gap. The online court will widen it further.
'Case officers' will not provide the lawyerless litigant with the vigorous partisan representation, tactical know-how, and experience available to an affluent opponent.
Those who resist the onward march of technology are seen as Luddites, desperately hoping to save their jobs by destroying the machinery which makes them redundant. A reasoned approach to the issue may be more in keeping with the dignity of the profession, but redundancy is a very real prospect. Is our fate to be death by a thousand cuts?
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