technology and courts

8/17/2019 Technology and Courts

http://slidepdf.com/reader/full/technology-and-courts 1/15

From Theory to Practice – Software Models and Evidencefor the Online Court

IntroductionIn this paper I look at some of the ways in which technology may be applied toproposals for on-line Courts.

The proposals by Richard Susskind 1 , the !STIC" paper and Sir #ichael $riggs arebased upon the a%ailability of technical solutions to ful&l the promise inherent inthe new models for resol%ing disputes. I emphasise that in using that phrase Ien%isage, as did 'rofessor Susskind, the dispute resolution model to functionwithin the established Court process rather than as a stand alone alternati%e tothe Court process.

( consideration of the deployment of technology within the Court process &rstre)uires a recognition of the way in which technology can re*ect or replacecurrent processes. The +C proposals that ha%e been put forward suggestsigni&cant process change but represent high le%el strategy. hat I am about toconsider is a slightly more practical o%er%iew of some of the ways in whichtechnology may be deployed. In addition there are issues surrounding thehandling of digital e%idence which will re)uire consideration.

We Shape Our Tools or the ules Shape the Tools! "

The &rst )uestion is whether the technology de&nes the Rules of procedure orwhether the Rules of procedure de&ne the technology. In ew ealand in theyears leading up to /011 there was a signi&cant pro ect the goal of which was toha%e, as much as one can ha%e, a paperless court in criminal proceedings.

aturally there would be instances where paper records would ha%e to be usedsuch as arrest warrants or custody warrants or the like. $ut the &ling of chargesor pre-sentence reports or submissions by counsel would all be done in digitalformat utilising online system. ( system of menu based options and choiceswould be pro%ided to the udge so that dispositions could be captured with theclick of the mouse.

1 Ci%il ustice Council Online Dispute Resolution for Low Value Civil Claims2ebruary /013 https455www. udiciary.go%.uk5wp-content5uploads5/01350/5+nline-6ispute-Resolution-2inal- eb-7ersion1.pdf 8last accessed 19 #arch /01:;8Susskind;

/ 2rom the aphorism attributed to #arshall #c<uhan = e become what webehold. e shape out tools and thereafter our tools shape us> The )uote wasactually from 2ather ohn Culkin, S , a 'rofessor of Communication at 2ordham!ni%ersity in ew ?ork and friend of #c<uhan. Culkin, .#. 81@:A, #arch 1B;. (schoolman s guide to #arshall #c<uhan. Saturday Re%iew, pp. 31-3D, A1-A/. The

idea presented in the )uote is entirely consistent with #c<uhan s thinking ontechnology in general.

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https://www.judiciary.gov.uk/wp-content/uploads/2015/02/Online-Dispute-Resolution-Final-Web-Version1.pdf






$ut the system suEered from a number of de&ciencies and problems which led toits abandonment. The only problem was that the legislation with which it wassupposed to work in tandem F the Criminal 'rocedure (ct /011 F had beenenacted and was in place. $ut that seemed to make little diEerence becausealthough a paperless court was en%isaged, it worked ust as well, but rather moremessily, with paper. (nd the reason for that was that what the system wasdesigned to do was electronically imitate paper based procedures. The onlyinno%ation, if it could be said to be an inno%ation was an absence of paper. Theprocess was entirely linear, the ob ecti%es being to either get to disposition bytrial or by resolution with a guilty plea. The process pro%ided for limited udicialinter%ention by way of case management but fundamentally nothing changedfrom a procedural perspecti%e.

Innovation or ImitationSo the &rst issue is whether or not the technology is to be used imitati%ely or

inno%ati%ely. I argue, as may be eGpected, for the latter because digital systemsand software present enormous opportunities for better more agile and di%erseways of assembling and processing information that was a%ailable in the paperparadigm. The way in which digital system can enhance the ability of the litigantto gather together the necessary information and submit it to the Court can be of much greater bene&t to all parties in terms of information in and information inreply. 2urthermore, competently deployed systems can assist, ad%ise andconteGtualise a potential claim as it is being de%eloped and &led in the Court sothat the litigant need not be represented by Counsel. +ne of the features of the+C as described by the three reports to which I ha%e made reference emphasise

the way in which that system can be used by self-represented litigants.

Esta#lished Systems The Susskind Reports obser%es that there are already standard +6R platformsa%ailable which can be licensed and deployed or alternati%ely a bespoke systemcould be de%eloped. "Gamples of +6R systems operating in other areas and inother Courts are gi%en. D

+ne is the etherlands Recht wiHer solution which is used for separation disputesand the Ci%il Resolution Tribunal in $ritish Columbia, Canada which is shortly togo li%e. 9 I discuss the Rechtwi Her system below in the conteGt of Tier Two and thecase assessment process.

Tier One2or eGample, in the Susskind model, Tier +ne is designed to 4

=help users with grie%ances to e%aluate their problems, that is, tocategoriHe their di culties, and understand both their entitlements andthe options a%ailable to them. This will be a form of information and

D Susskind 'art 9 paras 9.1 F 9.1/.

9 http455www.ci%ilresolutionbc.ca5 8last accessed 1B #arch /01:;

/

http://www.civilresolutionbc.ca/

http://www.civilresolutionbc.ca/



diagnostic ser%ice and will be a%ailable at no cost to court users. This partof J#+C will be shared with or will work alongside the many other%aluable online legal ser%ices that are currently a%ailable to help userswith their legal problems. 2or eGample, systems de%eloped by charitablebodies or pro%ided by law &rms on a pro bono basis will either sit withinJ#+C or be linked to the ser%ice. The broad idea of online e%aluation isthat the &rst port of call for users should be a suite of online systems thatguide users who think they may ha%e a problem.> 3

The Canadian approach presents the user with the Solution "Gplorer which is atool designed to diagnose the problem, pro%ides information from eGperts, andthen presents the user with options, some of which are self help or which resultin a proceeding before the Ci%il 6ispute Tribunal in which a triage process isemployed.. The Solution "Gplorer utilises eGpert systems technology. It also is asystem that is in de%elopment and becomes =smarter> with greater use F a

machine learning solution.(nother alternati%e is to build the solution eGplorerKtriage process into the initialinteraction with the Court at the commencement of proceedings. (n earliere%aluation is probably preferable but the model suggested may achie%e a similaroutcome. (s well as being a Tier one solution what I propose is an eGample of aninno%ati%e rather than an imitati%e approach.

E$Filin% and iFilin%2rom a general point of %iew what could a prospecti%e litigant eGpect. 2rom animitati%e point of %iew he or she would be presented with an e-&ling situation

where a standard form document comprising a number of &elds which wouldneed to be completed would be presented and the information so gatheredwould be assembled into what would be immediately recognised as a statementof claim. :

The inno%ati%e approach would be to introduce an entirely diEerent way ofcompiling the information necessary to inform e%eryone in%ol%ed of the nature of the dispute but at the same time pro%ide feedback to a potential claimant aboutthe nature and )uality of the information re)uired and whether, on the basis of

3 Susskind 'ara :./

: 2or an eGample of the type of form which could easily ha%e been adapted to acomputer based system see 6istrict Court Rules /00@ 8SR /00@5/3A; R. /.10 2orm /http455www.legislation.go%t.nH5regulation5public5/00@50/3A5latest56<#/[email protected]/00@NNN/3NanP90bnP90rcP90dnP90bgo%P90blocP90bpriP90bmemP90rpubP90rimpNrcP90ainfP90anifP90bcurP90rre%NaNawNseQpM1 6<#/D00@00 8last accessed 19 #arch /01:;. These forms weredesigned to be completed easily by litigants in person.2or a commercial commentary oni&ling see =i&ling or e&ling4 hat are the 6iEerences and hy Its Important for ?ourCourt> @ 2ebruary /01: http455info.turbocourt.com5i-&ling-%s-e-&ling5 8last accessed 10

(pril /01:;

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http://www.legislation.govt.nz/regulation/public/2009/0257/latest/DLM2300900.html?search=ad_regulation__District+Court+Rules_2009___25_an@bn@rc@dn@bgov@bloc@bpri@bmem@rpub@rimp_rc@ainf@anif@bcur@rrev_a_aw_se&p=1#DLM2300900




http://info.turbocourt.com/i-filing-vs-e-filing/








the information pro%ided, there may be di culties with the claim. This wouldful&l the =triage> role inherent in Tier 1.

Thus the inno%ati%e solution re)uired is not =e-&ling> but rather =i-&ling>. Jowdoes this diEer. "-&ling has many %ariations and le%els of technical functionality,

some of which actually may negati%ely impact court e ciency. In someinstances, e-&ling is merely basic email functionality with attachments, 8'62forms, supporting documents, etc;. (lthough this may reduce the &ler scourthouse trips, e-&ling alone is limited technology that does little to impro%ecourt case processing e ciency.

I-&ling, on the other hand, uses intelligent, interacti%e, inter%iews 8thus =i2iling>;and #< data eGchanges to create a new court &ling model. The heart of i-2ilinglies in its interacti%e intelligent technology designed to guide &lers through aseries of easy-to-understand )uestions online and oEers %irtual self-help onlinealong the way.

"ach )uestion builds upon the last, creating a customiHed pathway based on that&ler s uni)ue case details. "ach answer the &ler pro%ides is used to automaticallypopulate all appropriate &elds. The i2iling model has a number of uni)ueattributes including automatic completion of court forms, embedded )ualitycontrol the identi&es errors and assists &lers correct them before &ling along withpro%iding assistance in the form of identi&cation of the applicable ruleset alongwith aspects of the type of e%idential threshold that should be met. In this waythe triaging process can commence e%en before the &nalised information hasbeen &led. +nce the necessary information has been pro%ided and the party

wishes to &le, electronic deli%ery takes place and is allocated court staE work)ueues for re%iew5acceptance, and creation of #< data that integrates withother or associated case management systems.

The i2iling process can be compared to an online Q ( inter%iew. uestions thatappear onscreen are customiHed based on indi%idual facts of their case. i2ilingasks simple )uestions, &lers respond pro%iding details and if necessary otherdocumentary or electronic information and that information is used to prepare allnecessary forms for the &ler. (t all times there is an ongoing and updatedassessment of the case, communicated to the &ler, as part of the triaging

process.Inclusi%eness demands that multi-lingual support be a%ailable and this would bean aspect of what Sir #ichael $riggs refers to as the (ssisted 6igital Ser%ice.(lthough there is a debate about what this ser%ice should include and its scope Isee "arly Case (ssessment falling within the parameters of (6S and the triagingthat necessarily is a part of Tier +ne

This process aligns with the SusskindK$riggs model in that it allows andempowers ineGperienced unrepresented parties to prepare and submit remotely100P error free cases online. The user friendly aspects of the i2iling model are

that it is presented in an easy-to-use interface, it uses plain language withoutcompleG legal argon, there is no need for prior legal eGperience, it is intuiti%e

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=help related> at e%ery stage and accommodates limited literacy and computerskills.

The ad%antage o%er e-&ling in this regard is that with pre-designed legal formsthat contain argon or traditional legal terms and are electronically imitati%e of a

paper based regime increase the chance for error which may stall the process oralternati%ely lead to a re ection of the documents which is time consuming andfrustrating for the &ler.

The triaging process is built in to the software in that it sets up the re)uirementsand eGpectations arising from the law that will allow a step by step e%aluation ofa case. The user can cease the process at any time if it transpires that there is ane%idential or legal insu ciency which would render any further progress alongthe case track as futile. (t the same time, should the party wish to proceed to&ling the papers, an opportunity would be presented for the party to indicatepossible resolution scenarios. This information would be con&dential as betweenthe case o cer and the party in )uestion.

( %ery simple eGample of early triaging may be found at the +hio $oard of TaG(ppeals site. Three sets of )uestions F =Is it worth (ppealing F Costs and$ene&ts> =6o I ha%e a Strong Case> and = hat (re #y (ppeal Steps> allow apotential appellant to carry out a guided e%aluation of his or her case. A

The i2iling approach, and indeed any e-&ling model may operate on the basisthat the place of &ling does not matter. 6ocuments will be &led on-line and beheld at a central location accessible to those in%ol%ed in the case along with case

managers and ad udicators as the case may be. The =limited access> model isalready a%ailable in the Caselines suite.

#anagement of the case, at least from a udicial perspecti%e could be donethrough "- orking software which will be described below.

Tier One and Two $ echtwi&'erhat I ha%e described is a software model for the initial processes as a part of

Tier 1 in the SusskindK$riggs model. $ut as part and parcel of this is the processof online mediation or negotiation. There is an eGisting model for this in the

etherlands F the Rechtwi Her. The model de%eloped from e$ay s resolutioncenter and takes +nline 6ispute resolution 8+6R; further. The platform is %erypeople oriented helping participants get fair and sustainable results by makingsure they use the tools, information and time they need for this. Thede%elopment of interests and ideas for solutions means that participants stay incontrol and take responsibility for the process and its outcome.

The way in which the Rechtwi Her model is presented emphasises the importanceof people in the process. The design, *ow and content of the interface follows the

A +hio $oard of TaG (ppeals +nline (ppeal Uuide https455ohio-

bta.modria.com5resources5ohio-bta-diagnosis5strongcase.html 8last accessed 13#arch /01:;

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https://ohio-bta.modria.com/resources/ohio-bta-diagnosis/strongcase.html






beha%iour, ustice needs, and emotions of people looking for sustainableoutcomes. The Rechtwi Her illustrates the oint problem sol%ing approach in aseparation and custody case, steeping through the process in a user friendly andconciliatory manner. B

The Rechtwi Her platform is software-as-a-ser%ice 8SaaS;. <egal aid organisations,courts, legal eGpenses insurers, and other partners to the consortium, ad%ise onthe e%olution of the platform, its features and its content. Jii< and #odriaguarantee all hosting, maintenance and support issues, as well as ongoing usertesting and platform updating. In this way, each consortium partner focuses ondeli%ering what they can deli%er best.

The &rst Rechtwi Her implementation was launched at end of /019. It currentlysupports people with di%orce-related issues in The etherlands. (n "nglish%ersion of this module was scheduled to go li%e in $ritish Columbia and "nglandin the course of /013. (dditionally, a landlord-tenant module and an employmentmodule went li%e in The etherlands in the second half of /013. @

Rechtwi Her in%ol%es a change in mindset from an ad%ersarial dispute to aproblem to be sol%ed. This cultural change was the sub ect of a speech by Sir"rnest Ryder 10 in which he said, within the conteGt of the Social "ntitlementChamber which deals with appeals against welfare decisions, the following4

=(ll participants, the appellant, the respondent Uo%ernment department,which in this case is the 6epartment of ork and 'ensions, and thetribunal udge, are able to iterate and comment upon the basic case

papers online, o%er a reasonable window of time, so that the issues indispute can be clari&ed and eGplored. There is no need for all the partiesto be together in a court or building at the same time. There is no singletrial or hearing in the traditional sense. +ur new approach is similar to thatalready used in other urisdictions, where the trial process is an iterati%eone that stretches o%er a number of stages that are linked together. In ourmodel, howe%er, we will not need those stages to take place in separatehearings or indeed, unless it is necessary, any physical, face to face

B 2or a presentation and eGplanation of the process in a separation and custodycase see https455docs.google.com5presentation5d51hw@+$-m%o)0t@H7s@)n Btwk )DbhJ$ hgwr: dtRk 5embedLstartMfalseQloopMfalseQdelaymsMD000QslideMid.p9@ 8last accessed 13 #arch/01:;

@ Rechtwi Her /.04 Technology that puts ustice in your handshttp455www.hiil.org5pro ect5rechtwi Her 8last accessed 13 #arch /01:;

10 Sir "rnest Ryder =The #odernisation of (ccess to ustice in Times of (usterity>3 th (nnual Ryder <ecture D #arch /01: https455www. udiciary.go%.uk5wp-

content5uploads5/01:50D5/01:0D0D-ryder-lecture/.pdf 8last accessed 13 #arch/01:;

:

https://docs.google.com/presentation/d/1hw9OB-mvoq0t9zVs9qnj8twkJq3bhHBWhgwr6jdtRkQ/embed?start=false&loop=false&delayms=3000&slide=id.p49



http://www.hiil.org/project/rechtwijzer

https://www.judiciary.gov.uk/wp-content/uploads/2016/03/20160303-ryder-lecture2.pdf





http://www.hiil.org/project/rechtwijzer





hearing at all. e will ha%e a single, digital hearing that is continuous o%eran eGtended period of time.>

In this model, similar to the second tier in the SusskindK$riggs approach the udge or ad udicator takes an in)uisitorial and problem sol%ing approach, guiding

the parties to articulate and understand their respecti%e positions and identifyareas of agreement, possible agreement and areas which, initially seem to beunable to be resol%ed. This process diEers from the Rechtwi Her in that, asen%isaged by Sir "rnest, the udge is ready to assume his role qua udge at anappropriate time. The Rechtwi Her approach is software based with the option forad udicator inter%ention to engage in problem sol%ing should the need arise. InSir "rnest s approach once it becomes apparent that a hearing is re)uiredtechnology could facilitate that in that the hearing could be a =%irtual> one.

Early (eutral Evaluation(nother way of %iewing the Tier / process is by the deployment of "arly eutral"%aluation 'rocesses 8" ";. This in%ol%es a consideration of the matter by aneutral party ha%ing respected credentials for the purpose of obtaining an oral orwritten e%aluation about the partiesV positions. The e%aluation may be binding ornon-binding. "arly neutral e%aluation is often re)uired when the dispute in%ol%estechnical or factual issues that lend themsel%es to eGpert e%aluation. In "ngland" " is used in the family ustice system where it is known as 2amily 6isputeResolution as well as in the Commercial Court, the (dmiralty Court and the

Technology and Construction Court as well as in the Chancery 6i%ision. Thetrusted neutral party may be a trained Registrar, case o cer or part-time feepaid udges. In so far as it promotes settlement, it secures a bene&t to theparties through early resolution of their dispute. It e)ually enables the moree cient use of udicial resources, by enabling them to be concentrated on thoseclaims that genuinely cannot be resol%ed consensually. (nd where the claimdoesn t settle, it facilitates better use of both court and party resources,promoting better case management by enabling the parties to narrow the issuesin dispute.

Sir #ichael $riggs suggests, pro%isionally, that simple telephone mediationmodel is likely to be a better starting point than " " for Case + cers to conductduring Tier / of the +C process. 11 ( contrary position is taken by the ustice

Report. Sir #ichael s proposition is based upon a carefully staged de%elopmentcoupled with past eGperience. #ediation has had a better track record o%er theyears and is likely to be )uicker, cheaper and to make less demands on the Case+ cer by way of legal )uali&cations and eGperience. 2urthermore, the court userto think that the Case + cer s opinion of the merits of the case carried theweight of someone on the same le%el as the udge who would otherwise decideit.

(t the Tier / le%el it becomes apparent that a diEerent suite of software tools arere)uired. The emphasis must be upon allowing the parties to interact to arri%e at

11 $riggs para A./:

A



a solution assisted by a neutral third party using either an " " approach or aclose in%ol%ement in the process, bringing to bear an in)uisitorial approach toidentify points of agreement and li%e issues in dispute. The software model is onethat will allow interacti%ity and collaboration including real time on-line chatfunctionality with pro%ision for pri%ate caucusing if necessary.

Tier Three and )udicial Wor*in% To ha%e a Court hearing is the least desirable outcome in the SusskindK$riggsmodel but there will be occasions where this will be necessary. The eGpectation isthat this will be online in that the hearing will not take place at a Courthouse. The

udge may determine which is the most appropriate way of dealing with the caseF either by telephony, %ideo-conferencing or in person.

Resolution on the papers is also a%ailable and is contemplated in the SusskindReport. 1/ To this end a facility to enable an =on the papers> consideration in the

digital paradigm should be utilised. In ew ealand this is achie%ed by the use of a platform known as "- orking. It has the ad%antage of being designed by udges 8or a udge in the case of the prototype; for udges.

E$+uty and E$Wor*in% The model that I ad%ance for what could be called "- orking has de%eloped froma system known as e6uty that was de%eloped primarily for 2amily Court udgesin ew ealand.

ational e6uty is a ew ealand-wide process where electronically or o%er-the-counter &led without notice proceedings are processed on-line and forwarded to

2amily Court 6uty udges for determination. It is an online remote working toolthat will pro%ide for =on the papers> decisions. The intention of ational e6uty isto create better access to urgent protection orders and other eG parte order thatcan be made in the 2amily Court under %arious pieces of legislation. It enablesthe e cient consideration of cases and the deli%ery of decisions.

It is a miGture of imitati%e and inno%ati%e uses of technologyW imitati%e - in thatit utilises both electronic and hard-copy &ling under eGisting Rules which weredesigned for a paper based systemW inno%ati%e in that the technology enablesone udge, located remotely, to deal with applications &led in multiple registries.

This frees up udge time from dealing with these applications in addition to otherdaily udicial duties. It centralises the process. (lthough ew ealand has apopulation of about 9.3 million the geography of the country means resourcesare spread. ational e6uty means that place does not matter.

The working system operates with +utlook e-mail as the main system ofcommunication between the Court o ce and the e6uty udge, #icrosoft ordusing special tabs and macros for the creation of orders 8the e6uty 6ashboard;and a '62 reader. "ach tab has a number of drop down menus. It may be used inCourt or remotely on a laptop that is con&gured for access %is 7' or using aneGternal access %ersion of +utlook with the ational e6uty 7isual $asic

1/ Susskind para :.9

B



programming installed. The suite will work on indows A, B and 10 although thelatter two systems are not supported or sanctioned by the ew ealand #+

2iling may be by email with '62 documents attached or in hard copy in whichcase the Court will scan the documents into pdf format. (lthough &lings may be

at any one of a number of Courts, the nature of the case will mean that it entersthe e6uty system and is assigned a Case + cer. The Case + cer performs a%aluable triaging ser%ice in checking that the documentary materials are correct,that any associated or similar recent proceedings on the Case #anagementdatabase are referenced and that all other procedural issues ha%e recei%edcompliance. The case and docuemts are then e-mailed to the e6uty udge.

The following screenshots demonstrate the ord based tools that form part ofthe e6uty suite

The ational "-6uty Tab in ord and 8below; the e6uty 6ashboard with dropdown menu for orders

@



The e6uty model demonstrates what is possible in de%eloping a method of on-

line on the papers hearings. 2or in person hearing other on-line solutions area%ailable and it is to this issue that I shall now turn.

Tele or ,ideo Conferencin%!Susskind suggests that the =decision on the papers> model may be supported byteleconferencing facilities. It seems curious that %ideo-conferencing was notsuggested using Skype, 2acetime or other 7+I' communications systems thatdeploy %ideo. 'art of the answer may lie in the section dealing with futuresystems where %ideo is contemplated as part of a second generation +6Rsystem and where

=sound and %ideo )uality is so high that users feel as though they are inthe same room as those with whom they are engaging;. In crude terms,this will be like adding a %ery high )uality of Skype %ideo call to the +6Rser%ice and this will replace the telephony that will be used in the &rstgeneration. In this way, users will ha%e %ideo conferences4 in Tier +ne8"%aluation; perhaps with ad%ice counsellors or pro bono ad%isersW in Tier

Two 82acilitation;, with specialists who are, for eGample, mediating oroEering neutral %iews on legal meritsW and, in Tier Three 8 udges;, directlywith udges 8in a suitably designed online en%ironment;.> 1D

1D Susskind para B.9

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(7< technology is deployed In ew ealand, utilising the pro%isions of the Courts8Remote 'articipation (ct; /010. Courts routinely use (7< for the conduct ofcriminal remands, criminal interlocutory applications, case managementconferences and e%idence from witnesses remotely. +ne Jigh Court udgeobser%ed to me that the use of (7< to take e%idence is almost routine. 19

There are, of course, other forms of =real-time> communications technologiesthat could be deployed to assist in the presentation of a case. (n on-line chatfacility or instant messaging are two eGamples. The ob ect of the eGercise is toput information before the ad udicator or, in the case of Tier /, the e%aluator.

There should be no eGclusion of technologies simply on the basis that they ha%enot been deployed before.

+i%ital Evidence Considerations#anagement of 6igital "%idence is an issue that needs to be addressed by

con%entional Courts and will be critical for the +nline Court. 2or con%entionalcourts there is a dramatic increase in the %olume of digital e%idence and this willincrease with the greater use of wearable cameras, especially by lawenforcement o cers. The +nline Court en%isages that almost all e%idence will bein digital format.

6ocumentary e%idence could well be managed by the Caselines system whichen%isages a collection of pdf &les. $ut what of the other forms of e%idence thatwill be used in proceedings such as digital photos or images, %ideo from sourcessuch as wearable cameras, con%entional cameras, smart phones and the likeL(udio &les will also need to be considered. It will be necessary to &nd ways ofdealing with the increase in digital e%idence while planning for and de%elopingnew capabilities.

There are a number of technological issues which need to be considered. Isummarise them as follows4

Stora%e F decisions will ha%e to be made about the manner of storage of digitale%idence. Should Courts in%est in new hardware or adopt a Cloud solution. Inaddition matters such as disaster reco%ery and business continuity will ha%e tobe addressed.

Preservation F how long should digital e%idence be preser%ed, gi%en thatappeal proceedings may take place o%er a lengthy period of time. Should therebe a form of =acti%e archi%ing> which means that the digital e%idence will ha%e tobe maintained in a less immediately a%ailable state.

Centralisation or +ecentralisation F should there be a nationwide repositoryfor digital e%idence or should there be localised repositories. ( Cloud basedsolution will render this issue of academenic interest only.

Format standardisation or Conversion - should the Court limit the type offormats that will be acceptable. 2or documentary e%idence the pdf format may in

19 (uthor discussion with ustice Raynor (sher 13 #arch /01:.

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most cases be the standard although there may well be cases where nati%e &leformat will be necessary, especially where metadata may be probati%e of anissue. #atters such as a%ailability of software to display the e%idence, theoperating systems and %arious other compatibility issues will need to beaddressed. (n initial %iew is that the tendering party should pro%ide thenecessary software where e%idence is other than in the standard format re)uiredby the Court and should ha%e to ustify a departure from that format.

Infrastucture F choices will ha%e to be made about whether local or networksystems will be used to handle and manage digital e%idence. The use of theCloud may well pro%ide a more cost eEecti%e solution to the problem ofde%eloping infrastructure in a single court or network of courts.

Chain of Custody F this does not refer to the in%estigati%e chain of custody butthe way in which digital e%idence, once it is before the Court needs to be securedin such a way as to eliminate the possibility of tampering.

Preparedness F this refers to the processes for recei%ing digital e%idence, how8in the case of %ideo; that e%idence is to be stored, played, retained andaccessed. 'reparedness refers to the eGtent to which Courts ha%e theinfrastructural re)uirements to recei%e digital e%idence.

-ccess F will digital e%idence be treated as being &led or as an eGhibitL Thisstatus will ha%e an impact upon whether or not it will be publicly accessibleunder the Rules or statutes go%erning access to Court records.

Privacy F digital e%idence and particularly digital %ideo may in%ol%e or portrayindi%iduals who are not a party to the case and who ha%e no in%ol%ement with itother than on the periphery. Should there be policies that in%ol%e the redactionor piGilation of information or images that may identify a non-party.

Third Party Providers F it is unlikely that infrastructural or Cloud basedsolutions will be pro%ided by the Courts themsel%es. It will be necessary toensure that pro%iders and suppliers are aware of the importance of the integrityof digital information. This will be the case particularly where Clod pro%iders arein%ol%ed. There will need to be careful consideration gi%en to the contracts thatare prepared and it may be that before entering in to such contracts, model

policies should be de%eloped.

Concludin% O#servations

6igital e%idence is rapidly increasing. (lthough there may be few legal issues inits admissibility, the way in which it is handled by the Court will re)uire carefulconsideration. ew policies and systems will ha%e to be de%eloped. 6igitale%idence is not paper based e%idence. The )ualities of digital informationdemand that care by employed in de%eloping policies and systems that maintainthe integrity of that e%idence both for the &rst instance hearing and for anyappellate proceedings that may follow.

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- +i%ital Future – evisitin% -I The Susskind Report en%isages =arti&cial intelligence> technologies as a possiblefuture technology. Je mentions this along with Xbig data , aEecti%e computing,crowd-sourcing, machine learning, what-if analysis, and %irtual meeting rooms.

It could well be that digital analytical technologies may be deployed as early as Tier 1 and certainly during the Tier / analysis and negotiation.

(I is a compleG area of computer science and has many branches withconnection and commonalities among them. The most acti%e are shown here4

'utting the matter %ery simplistically legal information either in the form ofstatutes or case law is data which has meaning when properly analysed orinterpreted. (part from the di culties in location of such data, the analyticalprocess is done by lawyers or other trained professionals.

(lready a form of data analysis or (I %ariant is a%ailable in the form of databasessuch as <eGis eGis, estlaw or $ailii. <eGis and estlaw ha%e applied naturallanguage processing 8 <'; techni)ues to legal research for 10-plus years. Thecore <' algorithms were all published in academic ournals long ago and arereadily a%ailable. The hard 8%ery hard; work is practical implementation againstgood data at scale. <egal research inno%ators like 2astcase and Ra%el<aw ha%edone that hard work, and added %isualiHations to impro%e the utility of results.

1D



The usual process in%ol%es the construction of a search which, depending uponthe parameters used will return a limited or eGtensi%e dataset. It is at that pointthat human analysis takes o%er.

hat if the entire corpus of legal information is reduced to a machine readable

dataset. This would be a form of $ig 6ata with a %engeance, but it is a necessarystarting point. The issue then is to4

a; Reduce the dataset to information that is rele%ant and manageableb; 6eploy tools that would measure the returned results against the facts or

a particular case to predict a likely outcome.

'art 8a; is relati%ely straight forward. There are a number of methodologies andsoftware tools that are deployed in the e-6isclosure space that perform thisfunction. Technology-assisted re%iew 8T(R, or predicti%e coding; uses naturallanguage and machine learning techni)ues against the gigantic data sets of e-

disco%ery. T(R has been pro%en to be faster, better, cheaper and much moreconsistent than human-powered re%iew 8J'R;. It is assisted re%iew, in twosenses. 2irst, the technology needs to be assistedW it needs to be trained bysenior lawyers %ery knowledgeable about the case. Second, the lawyers areassisted by the technology, and the careful statistical thinking that must be doneto use it wisely. Thus, lawyers are not replaced, though they will be fewer innumber. T(R is the success story of machine learning in the law. It would be e%enbigger but for the slow pace of adoption by both lawyers and their clients.

'art 8b; would re)uire the de%elopment of the necessary algorithms that could

undertake the comparati%e and predicti%e analysis, together with a form ofprobability analysis to generate an outcome that would be useful andinformati%e. There are already %ariants at work now in the &eld of what is knownas +utcome 'rediction utilising cogniti%e technologies.

<eG #achina, after building a large and &ne-grained set of intellectual property8I'; case data, uses data mining and predicti%e analytics techni)ues to forecastoutcomes of I' litigation. Recently, it has eGtended the range of data it is miningto include court dockets, enabling new forms of insight and prediction. <eG'redicthas built models to predict the outcome of Supreme Court cases, at accuracyle%els challenging eGperienced Supreme Court practitioners. 'remonition saysthey are using data mining and other (I techni)ues =to eGpose, for the &rst timee%er, which lawyers win the most before which udge.>

This proposal, of course, immediately raises issues of whether or not we areapproaching the situation where we ha%e decision by machine. In the model Iha%e proposed, the analytical process would be seen as a part of the triaging or"C" process, rather than as part of the decision making process. The ad%antagesof the process are in the manner in which the information is reduced to arele%ant dataset performed automatically and faster than could be achie%ed byhuman means. ithin the conteGt of the +nline Court process it could be seen as

facilitati%e rather than determinati%e. If the case reached the decision makingprocess it would, of course, be open to a udge to consider utilising the =<aw as

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6ata> approach with, of course, the ultimate sign-oE. In that way the decisionwould still be a human one, albeit machine assisted.

ConclusionIn this paper I ha%e considered some of the software models that could be

deployed to make the +nline Court work. The eGamples I ha%e gi%en of the%arious models are eGamples only but the references by Richard Susskind and Sir#ichael $riggs to IT pro%iding a solution is certainly a reality. The deployment of(I in the future may re)uire some speci&c bespoke IT solution but what must beremembered is that there are software solutions presently in the market placethat can be deployed or modi&ed to suit the needs of the +nline Court. There isno need, in my %iew, to design and build a system from scratch with all theassociated di culties that in%ariably accompany Uo%ernment IT pro ects.

The +nline Court proposal is not without its doubters and sceptics. Inno%ation

always attracts such comment. The wider picture of accessible, cost eEecti%espeedy ustice deploying modern user friendly tools must be kept in sharp focus. The opportunity is here. The tools are here and, if I am not mistaken, the willeGists. Carpe diem!

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technology and courts

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