Justice in the Digital Age
Introduction
Access to justice is a basic principle of the rule of law. In the absence of access to justice, people are unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers accountable. The Declaration of the High-level Meeting on the Rule of Law emphasizes the right of equal access to justice for all, including members of vulnerable groups, and reaffirmed the commitment of Member States to taking all necessary steps to provide fair, transparent, effective, non-discriminatory and accountable services that promote access to justice for all. Within the justice system there are no customers, or clients, or end users. There are victims, witnesses, defendants, and legal professionals. Simply put, justice delayed is justice denied.
Yet too many are denied justice through unnecessary delays, errors, and inefficiencies in the system. Last year, the UK Parliament’s Public Accounts Committee published a report on “Efficiency in the criminal justice system.” The report found that “the criminal justice system is close to breaking point.” The criminal justice landscape is fragmented. It is a myriad of diverse organizations and agencies, all of which hold a stake. All of whom need to cooperate and share information in order for the system to function. Poor coordination and data sharing between these various organizations cause delays and inefficiencies. Think about what that means for justice. A clear illustration of these failings is the stark fact that only half of trials take place on the day they were scheduled to do so — falling to just a third in the Crown Court. This results in significant, and already limited, resources being squandered. In 2014/15, for example, £93 million was spent on defence counsels for cases that never made it to trial. Across this same period, a further £22 million was spent by the Crown Prosecution Service (CPS) — again, preparing files that would never see a courtroom. Generally, a third of victims of crime will simply hear nothing more from the police after the act of reporting the crime.
“Data is the oil of the digital era,” proclaims a 2017 Economist article. Big business — especially tech giants like Alphabet (Google’s parent), Amazon, Facebook, and Apple among others — are mining data like Standard Oil processed petroleum a century before. Why is the legal industry still running on gut and instinct while the businesses it serves are propelled by data? How can a trillion-dollar global industry that serves the largest, most tech-savvy businesses remain a data wasteland in the digital era? Short answer: legal culture and the myth of lawyer exceptionalism; law’s traditional labour-intensive, leveraged approach that supports the traditional partnership model, sustains profit-per-partner, and is the cornerstone of its resistance to change; a growing misalignment with business, especially its reliance on data. It’s ironic that lawyers — steeped in burden of proof, evidence (vetted information), and persuasion — would not be among the first industries to embrace data mining and analytics not only for internal purposes but also as a basis for competent and zealous representation of clients.
At investment banks, financial advisory work such as initial public offerings (IPOs) has long been seen to be “high touch” and “high end” work. Yet a few years ago, Goldman Sachs reportedly identified 127 steps required by bankers to undertake an IPO in their efforts to automate and eliminate hundreds of hours of human labour to allow bankers to spend their time with more value-added services. Documents and contracts form a significant part of the transactional lawyers’ daily work-life, and technology can and does assist with this. Areas of implementation include document management, review, completion, automation, analysis, drafting support and lifecycle management. Similar analogous processes apply to litigators’ case management.
At the recent Inter-Pacific Bar Association Annual Meeting and Conference, Singapore’s Chief Justice Sundaresh Menon described technological changes giving rise in law to new products, new players and new processes. Singapore’s Chief Justice Menon described technology as presenting the legal profession with a “wicked problem” which “cannot be readily solved by conventional straight-line thinking or single-actor one-shot solutions”. In the United States, the American Bar Association (ABA) Model Rules were amended in 2012 to require that lawyers “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” According to Professor Renee Knake, Doherty Chair in Legal Ethics at the University of Houston, “Thirty-five American states have adopted this amendment. At least one has disciplined a lawyer for failing to comply.” The State Bar of California issued an opinion in 2015 that lawyers who handle litigation have an ethical duty to be competent in e-discovery or to associate with others who have that competence.
Many countries are taking efforts to leverage on technology to make their justice systems more accessible and efficient. Countries like Estonia, Ghana, Honduras, Ukraine, Sweden, the Indian state Andra pradesh and Georgia already experiment with registering land titles and ownership rights using blockchain. There is a great hope that this will make land transactions more affordable, transparent and secure. In the field of family justice, there are already examples of e-marriage and marriage certificates encoded in public and private block chains. The fields most likely to be innovated using blockchain are inheritance, dowry, and prenuptial agreements. Benefits of such innovation include smart contracts which can help women to secure and enforce their rights.
In Australia, the New South Wales Supreme Court has its Online Registry, the Victorian Supreme Court has an electronic filing and case management system called RedCrest, and the Queensland Courts have adopted online filing for matters ranging from filing a statement of claim to applying for family violence protection orders. In Western Australia, it has been mandatory to file electronically in the civil jurisdiction of the Supreme Court since 1 March 2018, and in South Australia, a new eFiling system called Registry Online was recently launched. In Tasmania, litigants can even use email attachments to lodge court documents. The Dubai SCT’s implementation of supportive technologies has made the institution considerably more accessible to users. In Kenya, the Chief Justice David on Wednesday officially launched e-filing system that promises to render cases of misplaced and missing files a thing of the past at the Supreme Court. Besides filing, the system will also allow litigants to assess costs, pay and serve court papers in defendants electronically.
Many of us are familiar with “alternative legal service providers” or “ALSPs” who have broken the mould of the traditional legal service delivery model by leveraging technology. A highly instructive report on ALSPs was published this year by Thomson Reuters in partnership with Georgetown University Law’s Centre on Ethics, the Saïd Business School at the University of Oxford, and Acritas, a UK based legal research firm. It revealed quite remarkably that, on the basis of their total revenue, ALSPs in North America and the UK have grown by a quarter in size in the last two years. The courts in the UK, for example, are undertaking significant reforms, with some £1 billion being put into a programme that hopes to see most civil disputes resolved through an online court by 2022. “ALSPs are expanding the available range of services by combining talent and technology to deliver legal services in modes that best suit their clients’ needs.” Forward-thinking law firms are responding by moving toward the future of work. In this future, advanced legal technology supports their lawyers and elevates their professional capacity, enabling them to provide the best possible value to their clients.
A recent article in Forbes discusses the dearth of law firms leveraging data in their operations, even as almost all other industries seek to utilize big data. Law outperformed only the government in this respect. Beyond its lagging application of data analytics, the law was also behind in using artificial intelligence (AI) and machine learning — technologies that go hand-in-hand with making sense of data. Instead, as Mark Cohen explains, the legal industry’s reluctance to innovate in part comes down to “legal culture; lawyer hubris; conservatism; an economic model that has historically rewarded input (labor intensity), not output (results); lack of investment in new resources (both human and machine); and resistance to melding the practice of law with the business of delivering legal services.”
Application areas of technology
1. Online dispute resolution
Online dispute resolution has grown rapidly in the last 10–20 years. “Conflict is a growth industry.” Both a high level of conflict and increasingly novel kinds of disputes. Examples of such novel disputes include not only arguments over goods exchanged, such as what happens often on EBay, but also increasing arguments over quality of services, propelled by growth in the sharing economy through sites such as Airbnb or Taskrabbit. The particular types of disputes we now have are largely a by-product of innovation online, so existing strategies we have to deal with conflicts, such as courts, are often either inefficient or irrelevant for these specific circumstances.
Another good example of such a human-centred design approach is the Civil Resolution Tribunal (CRT) in Canada. The CRT is Canada’s first online tribunal, and deals with small claims disputes of under $5,000, as well as strata property issues of any amount in the province of British Columbia. The first level of public engagement with the CRT is the “Solution Explorer”. This program asks questions and diagnoses the dispute at hand. It provides free legal information and resources like letter templates to assist users to resolve the dispute. If this fails, parties can apply to the CRT for dispute resolution. From there, the parties can use the CRT’s online negotiation platform to negotiate a result; can mediate the dispute with agreements being turned into enforceable orders; or have the dispute determined by a tribunal member. Kleros is a dispute resolution system which relies on crypto economics. It uses a system of incentives based on “focal points”, a concept developed by game theorist Thomas Schelling, winner of the Nobel Prize in Economics 2005. Using a clever mechanism design, it seeks to produce a set of incentives for randomly selected users to adjudicate different types of disputes in a fast, affordable and secure way. Users who adjudicate disputes honestly will make money. Users who try to abuse the system will lose money. A further example is Uit Elkaar, based in the Netherlands. It is a user-pays online conflict resolution platform currently configured to assist people with separation or divorce. The average completion time of separation agreements was 24.3 active hours; that is, hours actively spent on the platform. Because of the ability of users to spread this time as they wished, 84% felt they had more control over the process of separation than traditionally was the case
2. Data analytics for Legal research
Those ahead of the curve understand its value: artificial intelligence augments human intelligence, revealing previously unseen insights that enable lawyers to make data-backed decisions. Artificial intelligence bridges the gap between the unstructured data of case law and a lawyer’s keen instinct. Algorithms can uncover new patterns in case law and measure the impact of relevant factors on an outcome. Instincts honed over the course of a long career can now be quantified, and juniors don’t need to wait years before being able to develop their own instincts. Moreover, lawyers can now have unparalleled visibility into the law and have access to the same information as their opposition, no matter the size of the firm.
China has also adopted AI in its courts. In the Hebei province, an application called “Intelligent Trial 1.0” assists judges in analysing data and trends for use in decisions. AI-based case review has also been introduced where a program analyses cases, flags issues regarding evidence, and looks at factually and legally similar cases for the benefit of the judge. This program has, thus far, led to over 30 criminal convictions being overturned. ROSS Intelligence, “the world’s first artificially intelligent attorney”, has been assisting law firm Baker Hostetler with conducting legal research in bankruptcy cases. Utilising Watson AI technology developed by IBM, ROSS creates value for the firm by sorting through thousands of case materials and documents to develop legal hypotheses and fine-tuned answers to legal issues. ROSS is programmed to learn over time and produce improved search results and performance through its “machine learning” interface, which allows it to “learn” from prior information that it has gathered. As University of Michigan Law School professor, Dan Linna argues, newer technologies only replace “relatively structured and repetitive tasks”, whereas the bulk of the legal profession would still rely on the work of real lawyers.
DoNotPay is an AI platform that helps drivers appeal what they believe are unfair tickets and citations. After it was rolled out in the United Kingdom, drivers successfully overturned some $3 million in fines in just the first few months. Engaging in case research and heuristic analytics using machine learning could help shave off as much as 70 percent of the expense associated with pursuing a case. One way a machine learning platform can do this is by scanning digitized copies of current and past testimonies, legal briefings and reports, old cases, published legal texts and much more — and then lifting out all of the material that has a bearing on the current case. Recently, a robot judge created by University College London successfully reached the same conclusions as the European Court of Justice in 79 per cent of cases. Applications, such as Witness Confident, which facilitate online crime reporting and evidence submission, may also help empower service users. By allowing witnesses to have more control over their own evidence, the transparency of court processes is increased and this can help to minimise frustration and anxiety.
3. E-courts
The E-Courts Project, which was conceptualized on the basis of the National Policy and Action Plan for Implementation of Information and Communication Technology (ICT) in the Indian Judiciary was submitted by the e-Committee of the Supreme Court of India, with a vision to transform the Indian Judiciary by ICT enablement of Courts. Once successfully implemented, this could drastically change the ease of access to Courts. The advantages of this include the following;
Paperless Courts: The Indian courts are seen to be littered with countless files and endless stacks of paper. E-litigation, as has been prevalent in Singapore, has been seen to drastically cut down on paper by introducing technology in the courtrooms. It includes an electronic filing service (allows court documents to be filed), an electronic extract service (allows lawyers to obtain extracts of court documents), a facility to electronically serve processes on parties and an electronic information service.
National Data Grid: A National Data Centre could be established to hold all information concerning pending work, filings, stages and disposals, and subject matters of all cases. The system could automatically compare and help lower Courts speedily render justice in cases where there exist precedents and stop similar cases from being filed. In Singapore, the Community Justice and Tribunals System (“CJTS”), which is an online filing and case management system with dispute resolution capabilities, was first launched in July 2017 in the Small Claims Tribunals. Technologies such as Block chains can be used in these to facilitate additional data being placed into the public realm, enhancing transparency. Citizens would not only be able to see more easily how cases are progressing, but could also view how their personal data was being used by justice agencies. This has the potential to boost public confidence in the CJS.
Transparency: Digitization of records and removal of the human element of filing would drastically reduce corruption and ease the burden on common people. Millions of people need protection against exploitative practices, unfair dismissal, unpaid wages and dangerous working conditions. Employment contracts and their clauses can be registered in a blockchain. Complex schemes of intermediaries can be held accountable through transparency. Data can be exchanged with labour inspectorates and watchdogs. In Brazil, a start-up called Credit Dream has tried to work on decentralized blockchain applications for universal access to credit. In Avon and Somerset, for example, ‘Track My Crime’ is a web based application designed to keep all relevant parties informed of a case’s journey through the CJS. Victims receive an automated SMS or email when their case is updated on police systems allowing access to relevant information at a time that is convenient for them.
Under-trial Prisoners: If an online database would regulate and track how long an under-trial prisoner has spent in prison and fast-track cases where a person has been imprisoned for long periods without a trial, it would drastically reduce the burden on prisons and free under trials. Also important is that in cases where the Petitioners/Complainants have caused unnecessary delays by taking adjournment, an e-system could automatically schedule the case for dismissal and clear up pending cases.
E-Witness Examination: Courts have already started accepting Cross-Examination and testimonies over the use of electronic mediums such as Skype. If such infrastructure could be provided to other Courts, it would reduce the time of both the litigants and the Court. Platforms which support online plea submission for minor offences have been piloted for some traffic offences and are now due to be rolled out for a number of additional crime types. This will streamline processes for more straightforward cases and aims to free up resources for more complex offences which will continue to require more formal legal proceedings.
Online monitoring of implementation of court decisions: CESR’s current work in Egypt, involves partnering with a group of human rights researchers to conceptualize an interactive online “scorecard” to enable civil society monitoring of Egypt’s commitments on a range of indicators relating to economic and social rights. The initiative comes at a time when the government is limiting space for advocacy by human rights defenders and civil society groups, making the need for innovative approaches all the more pressing. In South Africa they are collaborating with the Legal Resources Centre (LRC) in South Africa to monitor implementation of legal decisions on the right to education in the Eastern Cape.
Evidence, chain of custody, property, and asset forfeiture: Block chain can provide a tamper-resistant method of documenting and sharing (publicly or privately) the custodial chain of custody, property, evidence and assets, which could serve in helping to reduce loss, theft, and mistaken ownership while increasing accountability and transparency. An Application Programme Interface (API) has been developed (and piloted) which enables prosecutors to live stream multi-media from forces digital repositories. This not only saves the court time, which would usually be spent waiting for evidence to be mailed, but also reduces the demand placed on the police who would traditionally have to convert digital evidence into hard copies.
Sex offender registries: Block chain can be used to create a distributed registry of sex offenders to which global jurisdictions have access in order to improve the documentation and tracking of registered sex offenders.
Because of its potential and its different applications, the technology generates diverging, if not contradicting, opinions. Enthusiasts describe it as a “revolution in trust,” while sceptics criticise it for potentially leading to a society trusting code and technology more than humans. Some view blockchain as the most “promising disruptive technology in the fight against corruption” and as a reliable alternative in countries where data maintenance is poor and corruption rampant. Others warn against deploying it unless a number of prerequisites are in place, such as internet connectivity, digitised public records, and a tech-savvy population. Among the discussions on why there is need for a cautious approach to digitizing the legal system are as follows;
Challenges of adoption of technology on justice
1. Concerns about the black-box nature of AI & ML models
In a startling intervention that seeks to limit the emerging litigation analytics and prediction sector, the French Government has banned the publication of statistical information about judges’ decisions — with a five year prison sentence set as the maximum punishment for anyone who breaks the new law. The new law, encoded in Article 33 of the Justice Reform Act, is aimed at preventing anyone — but especially legal tech companies focused on litigation prediction and analytics — from publicly revealing the pattern of judges’ behaviour in relation to court decisions. Insiders in France told Artificial Lawyer that the new law is a direct result of an earlier effort to make all case law easily accessible to the general public, which was seen at the time as improving access to justice and a big step forward for transparency in the justice sector. However, judges in France had not reckoned on NLP and machine learning companies taking the public data and using it to model how certain judges behave in relation to particular types of legal matter or argument, or how they compare to other judges.
Another concern is whether biases may be (deliberately or not) embedded in algorithmic reasoning. Evaluation of the operation of a court as an institution exercising judicial power must be deterministic. Words such as “efficiency” can too easily enable reductive analysis of organisations. The use of big data and AI can also make some processes less transparent and less understandable; not just to the general public but also to lawyers themselves The courts must be independent — and be perceived as independent — from government and politics For this reason, if AI were to be used to make decisions in small or simple matters, there would need to be scope for human judicial review of those decisions. Otherwise, the development of case law would begin to stagnate, James Allsop (2019). It is also somewhat uncomfortable for citizens to accept that robots will be taking decisions which have significant consequences without feeling the moral weight of what they are doing. In fact GDPR foresees this and demands that all machine based decisions must be traceable and explainable.
2. Public confidence on digital courts
Last year, local magistrates in UK issued a formal response to a consultation exercise in which they warned that the proposals to close more courts and to conduct more criminal trials via video-link will destroy public confidence in the legal system. James Ollsop, the chief justice of Court of Australia in his speech on digital courts mentions that the human element is important in the legal system for a number of reasons. He mentions that the talk to reduce court operations to mere steps that can measured and hence parameterised risks reducing the courts to a mere service or place. Richard Susskind, IT Adviser to the Lord Chief Justice of England and Wales, posed in his 2013 book, tomorrow’s Lawyers: “is the court a service or a place?” The court is not just a service, nor is it just a place. It is the embodiment of judicial power and the guardian of the rule of law, he said.
3. Intellectual property
The digitization of court processes raises the question of data privacy and how it’s handled. Records entered in the blockchain are transparent and immutable. Because of these features, there may be conflicts with individual rights such as the right to privacy or the right to be forgotten, as described in the European Union General Data Protection Regulation (GDPR).
4. Use case Context
In family law matters where safety is a concern, technology can facilitate the safe, remote appearance of parties. Yet, in commercial matters where the credibility of a witness must be ascertained with reference to their responses to questions and documents put before them, appearance by video link may prove inadequate. Lawyers representing disabled clients have expressed worry that their clients would not have the devices necessary to read electronic documents or would have difficulty using such devices.
Conclusion
It’s hence my guided opinion to the legal fraternity that the digitization of the processes and the first principles of legal practice can only lead to more accessibility, transparency and predictability of the practice of justice. However this process must be controlled and effected progressively so as to prevent the technology from taking over the practice of law and the legal stakeholders made its subjects.
