The Gazette 1992

GAZETTE

JANUARY/FEBRUARY 1992

voted in its favour, and the only

question that remains is how it can

best be used. That it will be used

is already accepted.

"The rapid acceptance

computer

technology

by the

whole community

means that

the jury has voted in its

favour.

..."

The changes it effects on the trial

process are not changes in the

judical philosophy of the common

law trial. There is no change in the

adversarial process, though there is

an undoubted advantage to the

person with the technology as

opposed to the person without it.

There is no change in the onus or

standard of proof, nor of the legal

process by which the court de-

termines the matter. Witnesses will

still be examined and their credi-

bility determined.

What the changes do effect is the

efficiency with which the judicial

system as a whole and the trial in

particular, is administered. "Effici-

ency" should not be confused with

speed of disposal of a matter. The

trial process is more efficient

because lawyers are able to attend

to their tasks with fewer staff, and

each task that involves communi-

cation may be completed more ex-

peditiously. But when it comes to

the trial, the technology is unlikely

to shorten the process. To the

contrary, it is more likely to allow

deeper analysis of the evidentiary

issues and greater concentration of

argument in support of a particular

view of the facts. It assists in com-

prehending all matters, not in re-

ducing the issues, or allowing their

more rapid disposal.

Consequently, it is argued that the

new technology benefits the trial

process in attaining justice, and

permits it to be achieved at lesser

cost (at least in the interlocutory

stages). The benefits to the lawyer

are not illusory, but real. The sav-

ings in costs in the employment of

staff, and in the mechanics of

litigation, are substantial. Equally, it

allows the lawyer to do a better

job, with the result that the court

is likely to be presented with a

more formidable matter to adjudi-

cate than would be the case

otherwise.

There are many ways in which this

may be illustrated. One example is

provision to take evidence by

telephone-video. If that is not per-

mitted, then many will not call the

evidence at all, not being willing to

incur the cost. If it is allowed, it will

save costs where the party was

willing to bring that witness to the

court, but at the same time, in other

cases it will produce evidence to

the court which otherwise would

have been absent. Thus it will

not lead to more expedition in

disposal of cases, but will be more

likely to lead to the attainment of

justice.

So too will the more general com-

puterisation of the judicial process.

That makes the issue of process

more efficient and saves costs

where there is a major litigation

firm concerned. At the same time,

it allows the small country firm,

well away from any city where the

court is found, to issue process and

attend to the litigation from that

distant place. The result may

well be more litigation, rather than

less.

A final example lies in the use of the

technology for storing, summaris-

ing and analysing evidence.

Without the technology, time

constraints inherent in a trial may

and often do prevent an exhaustive

study of the evidence without the

provision of a substantial team of

lawyers. With the technology, a

lesser team is able to handle the

task. The result is that more is

done. Once again, the court's time

will not be saved; but every issue

will be canvassed in greater depth.

There are those who will find this

unsatisfactory, and will say that the

present process serves us well.

Perfection cannot be attained in

any process of dispute resolution,

and if under the present system

there is a concentration on what

are described (hopefully!) as the

"ma i n issues", then there is

nothing wrong with that. To that

the answer is that it acts upon the

supposition that there is a concen-

tration on the main issue without

all issues being known - a sort of

chance which may be right in some

cases but would be wrong in others.

It also gives an added weapon to

the litigant with the means to

ensure adequate numbers of

lawyers in his team against the

litigant who has not such means.

If the computer evens up such

a match, then it has much to com-

mend it. If the computer allows

more comprehensive examination

of matters than is otherwise

the case, then the lawyer does his

wo rk better, and j us t i ce is

enhanced.

Finally, there is nothing in this tech-

nology that renders it more suitable

for one part of the world rather than

another. It does depend, of course,

on there being a workable tele-

phone system capable of handling

computer data transmission. It

depends on judicial systems having

the money to invest in main frame

computers. It depends on lawyers

being able to afford a personal

computer, or a lap top computer.

It needs little else save for a wil-

lingness to join the rest of the

commercial and industrial world

in its acceptance of computers.

•

T U R K S A N D C A I C OS

I S L A N DS A N D

T H E I SLE O F M A N

Samuel McCleery

Attorney - at - Law and Solicitor of PO Box

127 in Grand Turk,Turks and Caicos Islands,

British West Indies and at 1 Castle Street,

Castletown, Isle of Man will be pleased to

accept instructions generally from Irish

Solicitors in the formation and administration

of Exempt Turks and Caicos Island

Companies and Non - Resident Isle of Man

Companies as well as Trust Administration

G. T Office:-

Tel: 809 946 2818

Fax: 809 946 2819

I.O.M.Office:-

Tel: 0624 822210

Telex : 628285 Samdan G

Fax: 0624 823799