LSJ article - Online Courts: The way of the future?

TECHNOLOGY

ONLINECOURTS: THE WAY OF THE FUTURE?

As the UK considers setting up an Internet-based court service for small claims, ALLISON STANFIELD looks at the future of online courts in Australia.

T he Civil Justice Council (CJC) in the United Kingdom has recommended that an Internet-based court service to be run by government should be created to handle low-value claims (those up to £25,000). The report, Online Dispute Resolution for Low Value Civil Claims, draws on examples such as eBay which settles around 60 million disputes between traders each year. Many of these disputes are resolved through online negotiation between the parties or where a binding decision is made by an eBay staff member. The recommendation has been made in an effort to reduce cost and increase the time in which claims are dealt with by the courts. The main author of the report, Richard Susskind, who has written several texts making predictions about the use of technology within the legal profession, has said that: “This report is not suggesting improvements to the existing system. It is calling for a radical and fundamental change in the way that our court system deals with low-value civil claims. Online dispute resolution is not science fiction. There are examples from around the world that clearly demonstrate its value and future potential, not least to litigants in person”. The report recommends a three-tier model. The first tier will provide online evaluation and facilitation to assist users to classify the dispute and bring it to a speedy conclusion. The second tier will involve some automated negotiation and help find a resolution without any human interaction. The third tier will see the involvement of full-time and part-time judges who will decide cases online, largely on the basis of papers that have been submitted electronically. The use of online tools in court processes is not, and should not be, a new or strange phenomenon. For several years, the Federal Court of Australia has had in place its eCourtroom system, which is a “virtual courtroom used in the management and hearing of some matters before the Federal Court of Australia”. In particular, the system is used for ex parte applications and for directions or other orders to be made online in general Federal Court matters. eCourtroom is integrated with the court’s eLodgment system, which allows parties to file documents online, and to exchange correspondence and draft documents. The cost of litigation is an ongoing cause for concern, with the average Federal Court case costing around $109,000 including disbursements, according to the Federal Attorney-General’s department. Any method that can reduce costs would certainly be welcomed by litigants and, in this day and age, the use of technology should not be viewed as radical – it should be viewed as a logical step in the development of court processes

to ensure that the court is in step with the rest of the business world and community at large. Reducing costs and speeding up the process Better use of technology at each stage of the litigation process would reduce costs to litigants and speed up the process. Firstly, lawyers should be able to file documents electronically from their desks, rather than have clerks go through the cumbersome task of attending the court registry in the hope their documents will not be rejected due to a typo or formatting problem. Some courts do have electronic filing. However, documents filed electronically are often not made available to the parties to view and download their own filed documents, documents filed by the other party, and orders made by the court. Further, allowing parties to present evidence in court electronically is still not an easy process. As far back as 1999, courts recognised that technology significantly reduced court time and costs. However, in the intervening years to 2015, there has not been a significant increase in the use of technology in trials. While some courts, such as the Federal Court and the Supreme Court of New South Wales in Sydney, do have courtrooms equipped with screens and cabling, it is still viewed as a large production to have an electronic courtroom set up with a team to run it. Thus, such eCourts are only used in matters where a large volume of documents is involved and the trial is lengthy. The technology is the easy part. The ability to file documents electronically, to download and retrieve court files, and the tools to enable counsel to prepare evidence and present it electronically have all been available for years. However, the preference for traditional, paper-based systems remains. It is much easier for things to stay the same, to use security as an excuse not to make information accessible, and for lawyers to learn paper-based processes from their mentors. The rest of the business world and community are already lodging and retrieving documents electronically. They are accessing information that is far more at risk than court documents – such as money via online banking – yet the courts remain wedded to practices that are centuries old. Making courts more accessible by using widely available, easy-to-use technology is the only way to move forward, and the recommendations of the CJC in the United Kingdom should not be viewed as radical – they should be viewed as a necessary step in the modernisation of the courts.

Allison Stanfield is one of the founders of e.law International, a company that specialises in providing online tools for litigators. Visit elaw.com.au for more information.

50 LSJ I MARCH 2015

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