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Let justice be done though the overheads fall

Let justice be done though the overheads fall

Posted by david-hand | 29 May 2020

This is the Best in Category article from the Justis International Law & Technology Writing Competition 2020 in the category of Access to justice and technology, by Armin Amirsolimani of University College London. Find out more about the competition, the shortlist and winning articles here.

How Online Courts promote access to justice

 

English justice was once as accessible as the air we breathe. The early Anglo-Saxons settled disputes effortlessly by bundling claimants into lakes and adjudicating by virtue of whether God intervened to rescue them from sinking.[1]

Mercifully, today justice demands more sophisticated legal infrastructure than a local lake. But cuts to legal aid mean modern lawyers are unaffordable for vulnerable groups and, increasingly, even ‘middle class’ claimants.[2]

Without representation, these claimants flood the courts as self-represented ‘litigants in person’.[3] They blunder through procedure, misidentify relevant facts, and present unpersuasive cases.[4] In an adversarial system, this amounts to an alarming divergence between rights in law and rights enforced.

If our system cannot afford lawyers, it must enforce rights without lawyers. Online Courts aim to do this in lower value, less complicated civil cases.[5] As I will explore, they do so by dispensing justice through layman-friendly mediation, empowering self-represented litigants with legal knowledge, and revolutionising the efficiency of our judges and lawyers.

Litigation Good, Mediation Better

Learned Hand warned that, “as a litigant, I should dread a lawsuit beyond almost anything short of sickness and death.”[6] This applies especially well to self-represented litigants. Online Dispute Resolution (ODR) helps them avoid litigation by facilitating inexpensive and user-friendly pre-trial mediation.

Rechtwijzer, an ODR system in the Netherlands, mediates huge numbers of divorce cases with guided user pathways, structured evidence gathering, and the occasional assistance of professionals like former family lawyers and judges.[7] Guided online mediation can be completed cheaply, allowing lower income parties to utilise legal facilities. In contrast, UK divorce courts charge £550 just for a hearing, with far more spent on representation or time off work to self-represent.[8]

The technological potential here is vast. Data analytics from resolved cases could allow mediation software like Rechtwijzer to become exponentially better at giving the most effective advice and targeting the most likely sources of discord.

Resolving disputes through mediation circumvents the legal complexities of litigation. The scores of families spared acrimonious divorce litigation by Rechtwijzer gives lie to criticisms of Online Courts as “economy-class” justice.[9] Dispute containment reflects a just principle: a railing at the top of a cliff is better than an ambulance at the bottom.

Turning Laymen into Lawyers

When disputes do come to litigation, Online Courts empower vulnerable litigants in person with legal knowledge. Litigants answer an online ‘decision-tree’ of straightforward, non-technical questions.[10] Completing the questions outputs the relevant facts of their case, the legal rules which must be applied, and a concise legal document summarising the case for the court.[11]

This technology knocks down multiple barriers to justice for vulnerable litigants. Workers who cannot take a day off for court, single mothers who cannot afford traditional court fees, and those with mobility issues, are empowered in ways even legal aid could never provide. Further, those speaking foreign languages, arguably the most vulnerable in an English-speaking adversarial system, benefit from easily translated webpages and forms.[12]

Transforming the judiciary

Litigants in person squander precious judicial time through incompetent case management and frivolous litigation.[13] A recent case, where a self-represented claimant wasted the time of ten separate judges on a nonsensical claim against Google, illustrates both problems.[14]

Online Courts allow for case management to be guided continuously through online portals. Submissions can be corrected easily, while e-learning resources and decision trees can automate procedural guidance. This ensures cases are fully prepared before they are reviewed by judges, allowing them to adjudicate in one online sitting. This saves substantial time and effort for both courts and litigants. This technology has been deployed by the TPT to resolve 25,000 appeals a year with a skeleton-crew of just 30 part-time adjudicators, to the satisfaction of over 90% of claimants. [15]

Further, an ODR pilot for Social Security hearings found that dashboards and continuous online case management encourage the DWP to concede many cases they would otherwise fruitlessly litigate. This was because they were confronted by the claimant’s favourable legal case and adequately prepared evidence before reaching courtroom litigation.[16]

In complex cases, the online court empowers self-represented litigants to fulfil daunting procedural requirements. Further, given Chief Justice Warren Burger’s point thatinefficiency and delay will drain even a just judgment of its value’ [17], this technology promotes access to justice by allowing speedier adjudication.

Cheaper Lawyers, Less Self-Representation

As with judges, as with lawyers. Online case management enables lawyers to easily ‘join in’ when their skills are actually required.[18] Online systems allow for ‘unbundled’ legal services, with lawyers providing their professional skills for the particular tasks that actually require expertise. Kennedys Law notes that online systems like case management dashboards and streamlined communication sharply reduce their costs and increase the number of clients able to instruct them.[19]

Critics are therefore wrong to equate Online Courts with legal aid cuts which ration access to justice. Technology secures at least as much justice as a fully funded legal aid system by minimising the need for lawyers, rather than paying them for tasks which could be streamlined. Where representation is necessary, Online Courts make it affordable.

Conclusion

In 1215 the Lateran Council banned trial by lake after controversy over whether divine intervention was a reliable way to dispense justice.[20] They recognised, as we do, that our dispute resolution procedures must evolve when justice might be better served by another means.

Whether rapidly educating litigants in person on presenting a persuasive legal case, or streamlining case management, or using feedback loops to automate mediation, what unites the various technological solutions offered by Online Courts is that they solve problems of complex information management across massive userbases. We should not be surprised, then, that technology is so effective at solving the problem of litigants in person; it is exactly the kind of problem information technology was created to solve.

About the author

Armin is currently a Master’s student in Legal and Political Theory at UCL, having completed undergraduate studies at Cambridge. His research focusses on the works of Lord Devlin and their relevance to contemporary free-speech debates. He will take the GDL next year with a view to becoming a barrister.

References

[1] Baker JH, An Introduction to English Legal History (Oxford University Press 2019) p7

[2] Benjamin Cooper, ‘Access to Justice Without Lawyers’ (2013). 47 Akron L. Rev. 205 (2014) (invited symposium article). Available at <https://ssrn.com/abstract=2327299>

[3] Dame Hazel Genn, ‘Online Courts and the Future of Justice’, Birkenhead Lecture (2017) <https://www.ucl.ac.uk/laws/sites/laws/files/birkenhead_lecture_2017_professor_dame_hazel_genn_final_version.pdf> accessed 3 December 2019

[4] Kim Williams, ‘Litigants in person: a literature review’, Ministry of Justice (2011) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/217374/litigants-in-person-literature-review.pdf> accessed 2 December 2019

[5] Sir Michael Briggs, Civil Courts Structure Review, (Final Report, July 2016) at 6.54ff <https://www.judiciary.uk/wp-content/uploads/2016/07/civil-courts-structure-review-final-report-jul-16-final-1.pdf> accessed 28 November 2019

[6] Jerome Frank ‘Some Reflections on Judge Learned Hand’, (1957) University of Chicago Law Review: Vol. 24: Article 9

[7] JUSTICE, ‘Delivering Justice in an Age of Austerity’ (2015) at 3.16ff <http://2bquk8cdew6192tsu41lay8t.wpengine.netdna-cdn.com/wp-content/uploads/2015/04/JUSTICE-working-party-report-Delivering-Justice-in-an-Age-of-Austerity.pdf> accessed 5 December 2019

[8] Joshua Rozenberg, ‘The Online Court: will IT work?’, (The Legal Education Foundation, December 2019) <https://long-reads.thelegaleducationfoundation.org/will-it-work/> accessed 6 December 2019

[9] Susskind RE, Online Courts and the Future of Justice (Kindle eBook: Oxford University Press 2019) p187

[10] Natalie Ceeney, ‘Delivering Justice in an Age of Austerity’, Speech delivered to Westminster Legal Policy Forum (2015) <https://www.gov.uk/government/speeches/westminster-legal-policy-forum-modernising-courts-and-tribunals> accessed 28 November 2019

[11] Sir Michael Briggs, Civil Courts Structure Review, (Interim Report, December 2015) at 6.6ff <https://www.judiciary.uk/wp-content/uploads/2016/01/ccsr-interim-report-dec-15-final1.pdf> accessed 28 November 2019

[12] Katsh ME and Rabinovich-Einy O, Digital Justice: Technology and the Internet of Disputes (Oxford University Press 2017) p158

[13] Susskind RE, Online Courts and the Future of Justice (Kindle eBook: Oxford University Press 2019) p28

[14] Victoria Ramsey, ‘Anonymous Litigant in Person Wasted 10 Judges’ Time’ (Law Society Gazette, 18 November 2019) < https://www.lawgazette.co.uk/practice/anonymous-litigant-in-person-wasted-10-judgestime/5102212.article > accessed 7 December 2019

[15] JUSTICE, ‘What is a Court?’ (2016) at ff2.21 <https://justice.org.uk/wp-content/uploads/2016/05/JUSTICE-What-is-a-Court-Report-2016.pdf> accessed 4 December 2019

[16] John Aitken, ‘Lessons From a Trailblazer Model’, Tribunals Journal (Autumn, 2016) <https://www.judiciary.uk/wp-content/uploads/2017/03/aitken-lessons-from-a-trailblazer-model-autumn-2016.pdf> accessed 4 December 2019

[17] Burger WE, Delivery of Justice (West Publishing Co 1990) p45

[18] John Aitken, ‘Lessons From a Trailblazer Model’, Tribunals Journal (Autumn, 2016)

[19] Kennedys Law, The £1 Billion Plan: The Civil Court of the Future (2017) <https://www.kennedyslaw.com/media/1470/kennedys_theonebillionpoundplan_aug2017.pdf> accessed 4 December 2019

[20] Baker JH, An Introduction to English Legal History (Oxford University Press 2019) p7

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