Digitizing the law

Posted on December 5, 2010 in Governance Delivery System

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NationalPost.com – News
Saturday, Dec. 4, 2010.   Graeme Hamilton, National Post

An Ontario judge caused a stir at a legal conference this fall when she discussed a recent paternity case in which she allowed the use of Facebook to serve papers on a defendant. The child’s mother could not find a street address for the father but did track him down on the social-networking site. She sent him a message accompanied by legal documents, and his reply was enough to persuade Superior Court Justice Cheryl Robertson that the defendant was aware of the suit against him.

Two estranged parties making contact through Facebook hardly seems like earth-shattering news, but for a conservative legal profession bound by ritual, it represented a significant breakthrough.

For centuries, little has changed in the way courts conduct trials, said Karim Benyekhlef, a law professor at the Universite de Montreal.

He pictures a lawyer from the 18th century feeling right at home pleading in most Canadian courtrooms. But as excessive costs and clogged courts make it harder for people to access justice, pressure is growing to tap into the potential of technology to transform the courtroom.

The Universite de Montreal last week inaugurated a $6-million cyber-justice laboratory, directed by Mr. Benyekhlef, to examine how technology can improve the administration of justice.

The provincial and federal governments funded the fully wired model courtroom. Researchers plan to stage trials in which electronic document filing will replace the mountains of paper usually generated and witnesses will be able to testify via video. They will even experiment with holographic technology to project a three-dimensional image of a remote witness into the courtroom. The biggest obstacle to moving the courtroom into the 21st century is not the technology but the legal profession’s aversion to change.

“The root of the problem runs deeper,” Mr. Benyekhlef and his Universite de Montreal associate, Nicolas Vermeys, wrote in a recent paper.

“It follows from a social and psychological resistance to change, which is attributable to our dependence on rules, practices and rituals that have come to symbolize the justice system rather than serve it.”

When we think of the courts, we tend to picture black-robed lawyers pleading before a gavel-wielding judge, who commands authority from an elevated bench.

The ideal courthouse is an imposing structure, preferably with pillars at the entrance. There are good reasons for many of these traditions.

“Resources have been lavished on courthouses and courtrooms in order to stress that the administration of justice plays a central role in civic landscape and imagination,” Linda Mulcahy, a law professor at the London School of Economics, wrote two years ago in a paper arguing against a move towards virtual trials. This reflects the fact that “the meting out of justice is a special function of the state and not something which can be dispensed just anywhere or on a whim,” she wrote.

The Universite de Montreal group has assembled a team of social scientists — psychologists, anthropologists, historians and philosophers, among others — to study the underlying reasons for certain traditions and whether they can be adapted to the digital age.

“Rituals are very important,” Mr. Benyekhlef said. “But maybe there are some where we don’t even know why we are still following them.” Jacquelyn Burkell, a professor of media studies at the University of Western Ontario, will be involved in looking at how new technologies influence the trial process.

What changes when a witness is testifying through a video link instead of in person? Will people accept the authenticity of electronic documents as readily as they do paper?

“Electronic management of documents seems to me in the end a no-brainer,” she said. “We just have to get over the fact that we like paper in our hands and we trust it more.”

The Center for Legal and Court Technology at William & Mary Law School in Virginia has been promoting the use of technology in the courts for nearly 20 years. It regularly stages mock trials inside a fully digital courtroom that is described as the most technologically advanced in the world.

Witnesses testifying from remote locations appear life-size on high-definition screens.

In some proceedings, it is the judge who follows the case remotely and appears on a screen. All evidence is submitted electronically, and each juror has a screen to view documents as the witnesses discuss them.

A court reporter produces a real-time transcript, which is sent to the judge, counsel, and even across the Internet to others following the case.

The courtroom can provide simultaneous translation of testimony from an off-site translator.

Frederic Lederer, a William & Mary law professor and the center’s director, is familiar with the various objections to a high-tech court.

Some have argued that it risks tipping the scales of justice. “How fair will it be when the prosecution is able, in an increasing range of cases, to deploy attractive graphs on screen, to scan their documents and reproduce them on a courtroom screen, to produce computerized reconstructions of critical events, and generally to call in aid the resources of modern technology … when comparable resources are not available to the defendants and his or her advisers?” Lord Justice Brooke of the English Court of appeal asked in a 2004 speech on courtroom technology.

Mr. Lederer maintains that as long as the courtroom is equipped to provide everyone with equal access to the technology, it could in fact favour a tech-savvy litigant over a team of high-priced lawyers.

“There is always the risk that you can be swamped by money, with or without technology, but ironically we think we are more likely to be evening things out than we used to,” he said.

Another common complaint is that remote testimony robs lawyers and judges of the chance to assess a witness’s credibility face-to-face, to see the sweat on his brow. Mr. Lederer is skeptical of the human capacity to discern when someone is telling the truth, but even so, he said the HD screens used in the model courtroom provide a clearer image of a remote witness than a juror would get in person.

“If you want to look at sweat I can give you a close-up of the water pouring down,” he said. “You can’t argue any more that you can’t see the person well enough.”

Fabien Gelinas, a McGill University law professor and partner in the Universite de Montreal cyber-justice project, said there is an urgent need to improve the courts’ efficiency, particularly in civil cases.

“It is simply too expensive and takes too long. It is very difficult for people to feel that they can actually access the courts and obtain justice,” he said.

In her address to the Kingston and the 1000 Islands Legal Conference in October, Justice Robertson urged the legal community to embrace electronic service of documents, as she had in the Facebook example.

“One of the greatest criticisms of the court is the snail’s pace at which it moves,” she said. “Right now in Ontario, you are lucky to get a court date within a year of starting your claim. If you have a slippery opposing party, part of the delay and expense is tracking them down.”

Acceptance of change will not come overnight and there are entrenched interests to overcome.

In Quebec, for example, the association representing bailiffs has sued lawyers who serve papers by fax instead of using the services of a bailiff.

Pierre Chagnon, past-president of the Quebec bar society, expects attitudes to change as a generation that has grown up in a digital age enters the profession.

“It is true that the legal milieu is, by its nature, slower to react, but we can’t pull on flowers to make them grow faster,” he said.

“Today’s students are a lot more ready than we are. It will perhaps be hard for us to adapt — I’m in my sixties — but for the young people, it is second nature.”

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