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Access to Justice: Embracing technology through online courts | Beverley McLachlin

Monday, February 10, 2020 @ 7:46 AM | By Beverley McLachlin

Beverley McLachlin %>
Beverley McLachlin
As we near the beginning of the second quarter of the 21st century, it is worth casting our thoughts ahead and asking what our justice system will look like 10 or 20 years from now. Everyone accepts that we are living in a technological era where change in how we communicate, do business and play is exponential. Business, education and medicine are radically altering the way they provide services to meet these changes and better serve their customers and the public. Why should the justice system be any different?

This is the question Richard Susskind asks in his recently released book, Online Courts and the Future of Justice (Oxford University Press, 2019). At this point, many of you will be reaching for your mouse and another blog. But before you do, let me assure you that for Susskind the term “Online courts” is a metaphor for using technology, where appropriate, to improve the delivery of justice in the decades ahead. In Susskind’s world, we will still have courthouses and judges. Some of our courthouses will be bricks-and-mortar affairs where judges hear cases of public importance, like criminal cases or cases involving new legal issues, in real time; some may be virtual, with trials playing out online. Susskind’s fundamental thesis is simple: we should embrace technology that helps us provide better justice to more people.

Three propositions underlie Susskind’s argument for taking a new look at justice systems through the lens of technology.

First, justice systems, like business and medicine, should take a user-based perspective. Just as modern medicine urges a patient-first approach, so the justice system must ask what people want and need and seek to meet those wants and needs as fully as it can. Delivery of justice is a service, not a place. What we need, Susskind argues, is “new ways of delivering the outcomes that parties seek.”

Second, justice systems, to do their job, should reflect the way people actually live, work and access services. In the 21st century, people increasingly live, work and access services online. Aligning the justice system with people’s needs and the way people live, work and access services — more and more online — maximizes the number of people who can access the justice system and the number of people who find solutions to their legal problems. This in turn, enhances the social good that we call justice and combats injustice. As Lord Devlin long ago observed, the “social service which the judge renders to the community is the removal of a sense of injustice.”

Third, justice should be viewed expansively, to include legal health promotion, dispute avoidance, dispute containment and dispute resolution. This concept of the “extended court” will best serve the legal needs of the future, Susskind argues.

Based on these propositions, Susskind draws on research and experience in jurisdictions like England and Wales and British Columbia to sketch out a three-tiered technology-driven court model for small civil disputes.

Tier one deals with assessment of legal needs and options, through state and non-state providers. Susskind points to online legal guidance and diagnostic systems, citing British Columbia’s Civil Resolution Tribunal’s Solution Explorer as an example. But more prosaic tools, involving diverse information providers, lawyers and online information resources, are also vital at tier one.

Tier two seeks to contain disputes that have been identified at tier one. In-person remedies like mediation and arbitration, now common, may assist in containment, and courts now routinely engage in pretrial settlement processes. But more and more, online systems are being called on to assist in dispute containment. ODR (Online Dispute Resolution) is increasingly recognized as a branch of ADR (Alternative Dispute Resolution). And in the public sector in England and Wales, state case officers employed by the court or tribunals already work with parties in a digitalized context to refine or resolve their disputes, failing which they may be referred to tier three for trial.   

Tier three brings us to the final and most controversial stage — online judging. While conceding some cases are best decided in real courtrooms and real time, Susskind argues that others may be better resolved by what are referred to as “continuous online hearings” — traditional judges working in an online environment, where evidence, legal submissions and dialogue between the judge and counsel or parties take place online. There is nothing inherently radical in this, Susskind argues. Online judges do the same work as in-court judges, but in a different environment. “And although their decisions are not read out or handed down in an actual courtroom, they are as binding and enforceable as when they are,” he says.

Susskind is not blind to the challenges online judging faces. He acknowledges a number of concerns — the need to avoid “economy-class justice”; the need to ensure transparency and open justice; the need to ensure fair trials; avoiding exclusion of “non-digitized” litigants; avoiding litigiousness; and the challenge for states of maintaining the necessary technological systems. He argues that with diligence and good will, these concerns can be met. Not all readers may be convinced.

While lawyers, judges and the public may argue the pros and cons of online justice, the reality is that it is already happening and will become more ubiquitous in future decades. Susskind’s essential point — that the justice system should adapt to our changing and increasingly digital world — seems unassailable. In a world where more people have access to the Internet than access to justice, online judicial processes are both inevitable and necessary. The challenge is to use them to make justice more attainable for more people, while preserving the integrity, independence and — dare I say humanity? — of the justice system we have come to cherish.

The Right Honourable Beverley McLachlin served as chief justice of Canada from 2000 to mid-December 2017. She now works as an arbitrator and mediator in Canada and internationally and also sits as a justice of Singapore’s International Commercial Court and the Hong Kong Final Court of Appeal. She chairs the Action Committee on Access to Justice in Civil and Family Matters.