Apologies if you were anticipating another Donald Trump story . This note is a result of attending a long and utterly fascinating seminar entitled “ Online Courts :Perspectives from the Bench and the Bar “, Sponsored by Harvard Law School , featuring British and American judges and practisers , and including Richard Susskind , whose book on online courts in the UK has made such a stir , the event was a very timely review of how jurisdictions have handled the problems arising from no longer being able to conduct legal procedures in court in person . But it also had a much larger resonance . It spoke vividly of what society has to do in an emergency , then perceives as inevitable and soon begins to envisage as the next evolutionary developmental branch . If you want to test the ability of a society to change , and very quickly if necessary , putting the courts under a microscope is not a bad idea . They tend to be conservative , procedurally inflexible , and run by people who are not generally expected to be in the vanguard of progressive change . I came into this session fully armed with all the prejudices save one – previous experience as the CEO of the company that launched the very first UK built online legal retrieval service in the early 1980s had taught me that a proclivity to change is not an age related element amongst lawyers – the great Lord Denning , Master of the Rolls and chairman of my Advisory Council was in his mid 80s when he first went online and delighted in the technology !

As a test of the ability to change , and analyse what works as change takes place – this meeting was superb . Many participants felt that they had no option originally but to go online when the pandemic struck . Avoiding lengthy delays in getting justice , and trying to prevent huge backlogs mounting up , made prompt action vital . Courts in both countries quickly complied . It was soon obvious that while oral argument worked excellently for most practitioners , cross-examination was much more difficult . Other losses were noted – a loss of formality , “ majesty” , a loss of gravitas . On the other hand there were gains in speed , in simplification of procedures and the effectiveness of short arguments before a Judge . Cross examination could be held by witness and lawyers meeting in a recorded , socially distanced context , but this was difficult . Above all , I had a sense from the early exchanges that the emphasis in the expression “ dispute resolution“ had changed in the sense that the utility of the online court was less in laying out the dispute in all its gory detail , and concentrated more on the resolution side of things . 

And then the participants began to peel back the inherent problems of the existing system . It was immensely expensive – and very time consuming . The courts were awash with paper. . Procedures had grown hugely complex , witnessed by procedural handbooks with thousands of pages , and clerks who functioned like expert systems trying to drive a way through them . The British had created a 2000 page user manual – the White Book – but arguably all the procedural certainty in the world did not protect court systems on both sides of the Atlantic from blocking up , suffering congestion that diminished the delivery of justice to those seeking it . And losing the point of justice through delays that reduce or eliminate the impact of judgements withheld too long . 

By the time the full extent of the problems became clear , a speaker came to the platform offering a ray of bright hope that some senior judges understand both the legal issues and the impact of technology at a level that makes change possible  . This was Sir Geoffrey Vos , currently Chancellor of the UK’s High Court  . Sir Geoffrey is due to become Master of the Rolls, head of the civil courts, in January , and after this performance should get a warm welcome from all reform minded observers . From the beginning of his talk he clearly recognised that whatever the problems caused by lockdown and physical court closures , opportunities for change and learning were being created and it would be wholly wrong to return to the old systems without change . Indeed he thought it might be impossible to do so . It was time to recognise that we were living in an age of borderless agreements , as represented by technologies like blockchain and “smart contracts” . Digital justice , he re-emphasised , should be about the resolution , not the dispute . The world was now full of dispute resolution services where plaintiffs represented themselves , and trusted an outcome based on finding a mediated answer , not on deciding who is “right” . He speculated that from eBay onwards , AI-based dispute resolution is currently providing answers to some 60m cases a year . More civil courts might be dedicated to arbitration and mediation , and less to presentational theatre . 

Richard Susskind, summing up , commented that online courts gave an opportunity to restart the procedural clock , forming very general principles of procedural conduct , and allowing greater flexibility . We also heard commentary that related back to the issues of cross examination online . Despite the importance attached to it . Studies had shown how poor most of us are at guessing who is telling the truth- humans ,  and judges and juries proved no better than the rest of us , got it right about 50-54% of the time . AI might help improve that ( or we could just toss a coin? ) Richard suggested recording the hearing and then replaying it to a jury as a way of getting a better grip on what is happening and giving jurors more time to think , pause , ask questions . 

This was an impressive meeting . The determination of professionals to learn from online court experiences forced upon them by the pandemic and to apply the lessons to making the delivery of justice more effective as a system and more useful for recipients was refreshing , and if justice systems can rethink then so can many other procedurally sclerotic elements of our society . 

For more on this topic go to www,remotecourts.org


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