E-COURTS - THE FUTURE OF THE JUDICIARY

E-COURTS

THE FUTURE OF THE JUDICIARY

THE COURT IN CYBER SPACE

Stes de Necker

Fair, speedy trials are essential for small enterprises embroiled in disputes. If business disputes take months or even years for courts to resolve, small firms might not have the financial strength to stay in business that long, regardless of trial outcomes. In such cases justice delayed is justice denied.

Korea ranks first in the world on the E-Government Readiness index, a composite measure of the capacity and willingness of economies to use e-government for development. As early as 1986, Korea launched a case management system platform for internal court users. This was later expanded to allow external users to search the database of cases and in 2010 Korea launched the electronic case filing system which enables electronic submission, registration, service notification and access to court documents.

Challenges included anticipating the needs of users at the design stage, convincing users to transition to e-filing and securing funding for maintaining and enhancing the system.

Though small and medium-size enterprises usually try to avoid going to trial, effective contract enforcement systems matter for them.  

Efficient courts and enforcement reduce informality, improve access to credit and increase trade.

E-courts around the world can use technology to conduct their functioning effectively and to bring efficiency and transparency. Some of the courts are actually trying to use technology for these purposes. This interface of technology and traditional courts has given rise to a new category of courts known as electronic courts or e-courts. 

An e-court is a suite of services that entails minimum use of paper from when a case is filed until its disposal.

In 2012 lawyers filed just over a third of the nearly 1 million cases electronically. Every month more attorneys are using the new system, attracted by its convenience.

Benefits of e-courts include cost and space savings, increased security, greater transparency, and expanded access to justice with round the clock filing and remote access. The data show that contract enforcement is faster in economies with e-filing.

The future of the courts is greatly dependent on technology and how technology can improve their functioning.

According to Jeff Aresty (‘State Courts and the Transformation to Virtual Courts’ Litigation Spring 2013 vol 39(2) 50) there are three general categories of changes in courtroom technology:

• There are the technologies that legal representatives use to present evidence and arguments.

• The existence of electronic documents has fundamentally changed the discovery process.

• Lawyers can use new technology outside the courtroom to start their cases, maintain their cases and get word out about their cases.

E-filing, social media and legal research have transformed the traditional work of lawyers. Virtual courts According to Keith Kaplan (‘Will Virtual Courts Create Courthouse Relics?’ The Judges’ Journal 2013 vol 52(2) 32) a virtual court is a conceptual idea of a judicial forum that has no physical presence but still provides the same justice services that are available in courtrooms.

Access to virtual courts would, however, be limited to online access, videoconferencing and teleconferencing.

Expert testimony through videoconferencing Videoconference technology allows witnesses to testify at trial without being physically present in the courtroom.

In contrast to a traditional, in-person witness, the videoconference witness is not physically present in the courtroom, but ‘virtually present’ through the use of technology. This enables the witness and those in the courtroom to interact (F Weber ‘Complying with the confrontation clause in the twenty-first century: Guidance for courts and legislatures considering videoconference testimony provisions’ Temple Law Review Fall 2013 vol 86(1) at 151).

The use of videoconferencing technology in both criminal and civil cases is discussed later.

In many criminal cases it is necessary to have testimony from fingerprint or chemistry experts usually stationed in major cities. They are assigned to cases throughout the country and are often requested to testify on the same day in courts that are kilometres apart. Often, a trial in a small town may have to be postponed because the expert must testify in another town. If, however, closed circuit TV (CCTV) were used, the expert could work in the laboratory until needed to appear on the screen in either of the two towns.

The saving in time for many people, namely the presiding officer, legal representative and witness – and the improvement of the trial calendar are obvious advantages in this situation. With real-time reporting, expert witnesses can respond instantaneously across the country. The availability to experts of their own laboratory equipment, which may be immovable or transported only at great cost, may also be most helpful in clarifying their testimony.

A former American Presiding Judge, Colin F Campbell, indicated that ‘widespread use of technology during trial enhances the way evidence is presented, allowing facts, concepts and ideas to be more readily understood by jurors, litigants, spectators, lawyers and the Court’ (Kaplan op cit).

In Canada, videoconferencing technology has been used to receive witness testimony in civil trials for over a decade (Amy Salyzyn ‘A New lens: Reframing the conversation about the use of videoconferencing in civil trials in Ontario’ Osgoode Hall Law Journal 2012 vol 50(2) 431).

The Ontario Rules of Civil Procedure allow for witnesses in civil trials to testify remotely using videoconference technology. Rule 1.08 of the Ontario Rules of Civil Procedure provides that a witness’s oral evidence at trial may be received by videoconference if the parties consent; and that in the absence of consent, evidence may be received by videoconference upon motion or on the court’s own initiative. The receipt of evidence through videoconference is subject to the discretion of the court.

According to Salyzyn (op cit at 433) the court, in exercising its discretion, takes the following factors into account, namely –

• the general principle that evidence and argument should be presented orally in open court;

• the importance of the evidence to the determination of the issues in the case;

• the effect of the telephone or videoconference on the court’s ability to make findings, including determinations about the credibility of witnesses;

• the importance in the circumstances of the case of observing the demeanour of a witness*;

• whether a party, witness or legal representative for a party is unable to attend because of infirmity, illness, or any other reason;

• the balance of convenience between the party wishing the telephone or videoconference and the party or parties opposing; and

• any other relevant matter. Judges have, however, exercised caution with regard to this technology and it has not become routine in the Ontario civil courts.

Presentation of the testimony of expert witnesses through closed circuit techniques or videoconferencing will be more efficient and effective as it is a cheaper and more flexible way to receive expert testimony. This technology will also improve access to justice.

The factors used in Ontario could be considered as international guidelines. Online dispute (ODR) may be the way tomorrow’s lawyer resolves his or her client’s disputes without even leaving the office or home. ODR refers to a process that may be applied to alternative dispute resolution (ADR) techniques and can be defined as any method by which parties attempt to resolve disputes online.

ODR uses technology, particularly the internet, to augment ADR processes. The different methods of ADR mainly negotiation, conciliation, mediation and arbitration have proven to be an effective, speedy and cheaper way to avoid the heavy burden imposed by judicial procedures. ODR has directly developed as an online extension of ADR (M Albornoz ‘Feasability Analysis of Online Dispute Resolution in Developing countries’ University of Miami Inter-American Law Review Fall 2012 vol 44(1) 43).

According to Frank Fowlie (‘Online Dispute Resolution and Ombudsmanship’ Journal of International Ombudsman Association 2011 vol 4(2) 50) ODR may be applicable to disputes that emanate from either online or real-world activities.

For example, ODR may be used as a vehicle to handle consumer disputes relating to online purchase of goods, or may be used as a resolution system for small claims in direct business-to-consumer transactions. ODR is a vehicle that allows the parties to a dispute to resolve the matter, with or without the participation of third parties.

According to Albornoz (op cit at 47), the main types of ODR are the following:

• Assisted negotiation – refers to an online, computer-assisted negotiation in which technological tools enhance the probabilities of reaching an agreement. Due to the absence of a human third party, technology assists the parties in order to provide a solution by asking questions, suggesting answers and sending reminders.

• Automated negotiation – is a specific type of assisted negotiation. It is also called ‘blind-bidding’ negotiation. This method is, however, limited to monetary claims where money is the only variable of the dispute. The proceeding is conducted online without any human assistance. Every party makes a confidential bid at each round of the negotiations. If the system finds that the offer of the opposing party is equal to or less than the complainant’s offer for a round, the case is automatically settled.

• Online mediation and online arbitration – both methods refer to a voluntary mediation proceeding or an arbitration proceeding that is conducted over the internet with the assistance of a human third party. 

In the case of online arbitration the parties must have an express agreement to arbitrate.

In the United States, for example, the Federal Mediation and Conciliation Service (FMCS) and the National Mediation Board (NMB) have both taken notice of ODR. The FMCS pioneered the use of online tools to negotiate contracts, while the NMB has offered secure online tools in lengthy, complex negotiations among parties spread across the country. Private firms offer flexible platforms that allow lawyers and other dispute resolvers to do traditional face-to-face work online and thus expand their practices to areas unique to the new technology-rich environment.

It should, however, be emphasised that ODR is not a replacement for courtrooms, and seems to have the greatest potential in e-commerce and small-claims disputes.

Another development is the implementation of e-courthouses in the US.

Maricopa County Superior Court in Phoenix, Arizona, recently moved into a new courthouse that utilises e-courtrooms. These courtrooms have microphones throughout, flat-screen monitors for the court and jurors, two-way videoconferencing to allow for court appearances from locations other than in the courthouse, evidence display systems with touch screens that allow exhibits to be highlighted and annotated, and full audio and visual digital recording facilities (Kaplan op cit at 32).

Advances in technology can improve the courts and the public’s access to court services. Not only will new technology allow for greater access to the courts, but it can also improve the efficiency of the courts operating in difficult financial times.

Some of the greatest benefits of a virtual court are the cost savings and hours of service availability.

Traditionally, courts are open to the public only on business days. This is, however, restrictive in that many litigants who need to access the courts also work on business days. Virtual courts can eliminate this barrier not only by allowing 24-hours-a-day, seven-days-a-week access to electronic filing and other case processing online, but litigants will also be able to participate in trials by videoconference.

No longer will litigants be forced to leave work to attend court as they will access proceedings from their home or office. Thus, virtual courts would save on overheads and costs associated with operating court facilities, thus improving access to justice.

By utilising modern technology, courts have already reduced the need for people to access the courts physically. As video technology improves, courts are beginning to use it for postponements in criminal matters in order to reduce the costs of transporting accused from correctional facilities to courtrooms. It is foreseeable that more courts will begin to use video technology to replace the need for appearances in court.

In the future, trials may occur through video-conferencing with all parties’ securely accessing the court from locations of their choosing.

Courts, as they are currently viewed, may become virtual and not require litigants or staff to attend court physically.

In order to implement virtual court procedures and case processing, existing case-management systems will need to be modified or replaced to allow for new technology and remote access.

It should, however, be noted that reporters of digital recording devices are sometimes unable to record statements because they are inaudible.

Some members of the legal profession may view these modern communication devices as a threat; others may dismiss them as mere gadgetry.

It should, however, be viewed as an opportunity for imaginative and constructive use in furthering our goal of administering justice properly and promptly.

Digitising of the legal world will not only improve access, but also change the way litigators practise law.

It should be noted that the legal representative and the courtroom will continue to play the lead roles; as cases are simply too difficult for computers to handle alone.

The client needs understanding, responsiveness and advice that technology simply cannot provide.