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Reduce paper, steps for faster courts

Thursday, March 23, 2017 @ 8:00 PM | By Chris Bentley and Hersh Perlis

What could technology do to improve our courts today and five years from now? There is much talk about how technology can help with our access to justice challenges. The main justification for modernizing our publicly funded system should be to provide faster, simpler and more affordable justice to the people we serve. They pay for the publicly funded justice system.

But technology itself cannot achieve the access goal without process reform. One of the main reasons so many initiatives have fallen short is the failure to reform the justice process. Technology that simply incorporates our paper and step-driven process will not achieve the goal of a faster, simpler and more affordable system.

Cut out the paper and steps. Get to the decision point faster. Lean methodology is used everywhere else, why not in law? Our (otherwise noble) belief seems to have been that more management, with extra forms and steps, will perfect and expedite justice. Unfortunately, this only slows it down and increases the cost. Reducing the paper and steps is the key to an effective system.

Every step, and every piece of paper, costs money to pay lawyers, takes time to complete, creates delay and involves disruption to family, jobs and lives.

The following suggestions can all be accomplished with existing technology, at relatively little cost. Cumulatively, they would significantly improve justice for consumers provided they become the rule and not the exception.

Reach into your bag of high tech goodies and pull out the phone, videoconferencing and a few simple computer programs.

First, eliminate all assignment and similar courts. Simple online scheduling can maintain judicial control while eliminating the wasteful attendance of lawyers from all parts of the province. The judge retains the right, in exceptional cases, to require the attendance by video of counsel. Imagine if doctors had to turn up in their greens once a month only to be told when their operation will be scheduled. People would be outraged. It uses time that should be spent on other cases, costs consumers and the public money and is not necessary to advance justice.

Second, all judicial and crown pretrials should be done by phone or videoconferencing except in exceptional circumstances. They do not need in-person attendance. Yes, we enjoy it. But it is an unnecessary time-gobbler. Lawyers and the judge should be gathered by their computers using simple videoconferencing or Skype technology to have the conversations that need to be had. A scheduling program could cue them in. Clients would save a lot of money, as would the legal aid system.

Third, motions. Start by requiring consent matters to be handled by videoconferencing. Then, gradually encourage contested motions and case conferences to be heard through the use of videoconferencing.

Until now we have assumed that the volume of cases will be the same. It should not be. Every civil and family case should be triaged before it is filed. This one step will deliver the greatest benefit to the greatest number, almost immediately.

Triaging will ensure that the urgent and important take priority. Cases without merit, or ones where the issue is not sufficiently significant, should be redirected out or resolved expeditiously. Issues will be identified and narrowed. Justice systems should resolve disputes that must be resolved. You cannot use it just because it’s there. Consumers want the destination, not the journey.

Triage can be done in person, online, or in combination. Online dispute resolution systems are not new and are improving by the day. The Netherlands’ Rechtwijzer system or MyLawBC are just two examples. Saving our court system will require much greater control over how its precious resources are used.

What do we see five years from now? Assume you already triage every case, have incorporated the telephone, videoconferencing and limited online scheduling and are even encouraging (but not requiring) contested matters to be done with videoconferencing.

Electronic filing will become the only acceptable system for new cases. The key is that there be no paper alternative. There will be consumers who can’t use it. However, much of that involves a legal system that is difficult to use. Simplify the system. The experts can then help those who still need it.

Let’s return to those motions. The principle is that the motion is (usually) done in the jurisdiction where the case is filed. Well, the SCC recently allowed a motion to be done out of province. Surely we can manage to do in-province superior court motions in any jurisdiction that has time. The (streamlined) documents would be filed by drop-box, or similar means, so that the judge and lawyers, wherever situated, could review them from anywhere. The motion could be heard through videoconferencing by judges especially appointed, or who had time because their cases ended early.

Now combine triaging, online scheduling and data analytics and you can more effectively use the court resources across the province. Backlogs will be reduced. Cases will be heard faster. Settlement discussions will be expedited by the results. Consumers will be better served.

The trial itself? Imagine (basic) transcripts being produced in real time as people speak, screens that portray the exhibit being spoken about and cases that are brought up as the argument is being made. This can all be done now. Videoconferencing witnesses in will/should become a much more regular part of most trials. Start with remote areas and rural communities and expand out. Justice that is rare and time-limited will become much more current and a presence if it happens on a regular and timely fashion.

But wait. This assumes a courthouse. Now we both love courthouses. Will they still be (as) necessary? Yes, I can hear much throat-clearing as the new Toronto courthouse is planned. The challenge with a system of justice based on “place” in an increasingly virtual world is that so much of the future will not require the same place and space.

Or maybe it all just goes into a computer which tells you in advance how the judge usually decides cases such as yours. Wait — that can be done now (Loom Analytics)!

Of course, all of this depends on the willingness of the profession to change. Change is coming. It is required by the facts, is being demanded by consumers and is enabled by technology. The real question, then, might be the extent to which we are prepared to change so we are still a central part of justice in the future.

Chris Bentley is the executive director of the Legal Innovation Zone and the law practice program, Ryerson University and Hersh Perlis is a director of the Legal Innovation Zone.