International Conference on
Dispute Resolution in Electronic Commerce
organized by the WIPO Arbitration and Mediation Center
Geneva, November 6 and 7, 2000
THE COURTS AND NEW TECHNOLOGIES
Justice Austin Amissah
London, United Kingdom
To no man will we sell, or deny, or delay right or justice.
[Magna Carta, 1215, clause 40]
It is remarkable that this statement, made nearly 800 years ago, still expresses the concerns which people have for judicial administration. Mankind has made tremendous advances in science and technology over the years, but with regard to the problems of human conduct, human relations and governance it has had to struggle with the same problems, in varying forms, over centuries. The question which faces us today in whether the new technologies can help in securing the type of justice from the courts which King John committed himself to in Magna Carta. Adaptation to new technology involves change. Judges as a breed tend to be very conservative. They look backwards for their inspiration. They rely on tradition. And, in the systems which apply the doctrine of binding judicial precedent, rely on the thoughts and expressions of former judges of equal or higher rank to guide them in their decisions for today. Changes with judges, and indeed with lawyers as a whole, are looked upon by them with suspicion, often to be resisted as a matter of principle. I cannot say what revolution persuaded them to give up the quill pen for the fountain pen and the ballpoint pen. What I expect is that the change speeded up their writing of court records, notes of proceedings, and their judgments. Today, we are in the age of the computer and of information technology of all kinds. Some of their applications have definitely been found to be of great assistance in the work of the courts. This short paper seeks to portray some of the changes that have been effected, highlight some problems with the courts' use of new technology, and ask a few questions on what they mean to the administration of justice.
I believe that no judicial system can boast of being efficient unless it delivers justice which is fair, without delay and at reasonable cost. This prescription omits the commitment of King John in Magna Carta not to sell right or justice. The omission is because the technologies which assist courts at the moment do not seem to advance that cause much. That cause is today pursued by the judicial selection and appointment process by which individuals of integrity, knowledge and appropriate temperament are chosen to exercise the judicial power vested in the courts. Character and temperament are values which technology still leaves to human beings to evaluate. Gone are the days when a judicial officer may be excused from supplementing his income from donations
or impositions upon parties to cases before him. It is expected that judges will not exercise their functions corruptly. If a judge infringes this rule, the system has its in-built processes for his or her removal or dismissal. Going to law is generally quite expensive in most countries. But that is as a result of the cost of the proceedings and the employment of lawyers, and not the result of selling justice today. Nevertheless, the cost of going to law must be a major concern of all those who have responsibility for providing an acceptable judicial system in a country. And opportunities for cutting down that cost must always be a priority.
It is in the pursuit of the delivery of justice without delay that modern technology has given considerable fillip. Delay is the greatest concern that most people have with the administration of justice. When will my case come before the court? When will the hearing be over? When will judgment be given? If there is an appeal from the judgment, when will it come before the appellate court? How long will it take for the decision of the appellate court to be delivered? These last two questions will be compounded by as many tiers of appellate courts as are provided for in a judicial system by the countrys constitution. These are questions which any litigant would ask if he decides to go to law or is brought to answer in court. The questions may not be asked by most people at the outset of the case, but as time goes on and the various stages are not met, the relevant question at each stage must be a source of serious worry to the litigant. It is not unknown for the average course of a case through the courts to last for a period of up to five to seven years. These horrendous periods may sometimes be exceeded. The story is told of some case in the Court of Chancery over family property in England having taken decades, with generation after generation of senior lawyers living off it, without hope of a resolution. Then one morning the lawyers on the case came to court to be greeted with the news that the warring factions in the family had made up their differences, and therefore, the case must be withdrawn from court. The observation of one of the lawyers was, "What a disaster! Such a lovely inheritance being wasted on beneficiaries." Such staggering delays, no doubt, would not be tolerated in any developed country, much less in England which boasts of a judicial system of the highest standard, today. But the kind of deliberate prolongation of a case illustrated by the little anecdote, is not what technology helps in solving. The kind of delay which can be removed or reduced by technology is usually in-built in the courts own system of doing business: the taking and recording of evidence; the availability of reports of court decisions; library facilities for research; legal texts for use; the organisation and storage of court files; the organisation and manner in which cases are heard and disposed of; and the writing and delivery of judgments. In this regard, I speak more of courts in less developed countries in which the technological advances, which have helped expedite cases through the courts have not been and, in some cases for valid reasons, cannot be wholly, embraced.
In those countries, the backbreaking drudgery of judges with the responsibility of producing the record of the courts proceedings in their own handwriting or the handwriting of a clerk which has to be checked and confirmed by the judge, still obtains. The manner in which time can be saved by the use of modern technological methods is either unknown or, if known, is unaffordable. The outside observer would ask, why is the computer assisted transcription (CAT) system of preparing court records not adopted in all cases. That is a recognised state of the art recording system, which has the advantage of recording by computer, and preserving the records without necessarily having them printed until required. But the acquisition and installation of the system is expensive; it operation involves the training of staff, who after qualification become so valuable in the job market that they are immediately snatched by the private sector with offers of better conditions of service. If the CAT system cannot be used, why are delays not cut down by the use of the Palantype system of recording or by having the evidence taped? These are technological devices which have been used by courts to expedite proceedings in some countries. In some developing countries the problems of costs and loss of trained staff still put even these substitutes beyond the reach of the judicial administration budget. For such countries the alternative is the use, not of the most modern forms of technology, but of such secondary or appropriate technology as they can afford.
I do not suggest that delays are found only in developing countries which do not have the means to acquire or maintain modern technology. Developed countries experience delays as well, although this may not be caused by budgetary deficiencies. Only recently, there were complaints in England about delays in the delivery of judgments; a phenomenon which may be attributable to human shortcoming and inadequate organisation of judicial time rather that the use of outmoded technology.
The difference which computer technology has brought to the administration of the courts deserves special mention. Recording of evidence immediately comes into focus. But that is not the only application to which it can be put. The computer has enabled judges to write judgments more quickly than by handwriting or the use of the typewriter. It has made the storage of court files, whether in current use or disposed of until required for future reference or research, easier and demanding less of building space. It has given a new dimension to legal research, whether for teaching, study, presentation in court, judgment-writing, critical comment or review. Publishers like Lexis, Westlaw and similar systems engaged in the compilation and dissemination of legal information, whether in the form of compendia or otherwise, today sell their material through both electronic means and CDs which are accessed through computers. This method of recording has brought volumes, and indeed whole libraries, to offices and homes. They have from that point of view lessened the number of visits a researcher needs to pay to law libraries and also provided a system of storage of material by the libraries themselves which requires less space. The fact that precedents of legal documents can be accessed in a form which makes document preparation for purposes of contractual arrangements or court procedures, more a matter of modification, supplementation and deletions, rather than inspired creation from scratch, must make the legal processes more efficient, uniform and time-saving. It seems as if the limits of the computer usage are unbound.
The other technological development of our age which in combination with the computer threatens to revolutionise court and legal processes is the Internet. It has made a massive amount of information available to all who seek it. Websites, like the Legal Information Institute at Cornell University, and Lexmercatoria established by Ralph Amissah while in the University of Tromso, in Norway, exist for the dissemination of legal material. In the case of the LII the collection is of legal material in general; in the case of Lexmercatoria, it is in international trade law. Other Websites have been set up which collect and collate legal information, and make it accessible to anybody who cares to access it. The Australasian Legal Information Institute has changed legal reporting on their continent, with judges submitting their judgments to the institute which makes them available to all legal academics and practitioners worldwide through the Web. The judges themselves recognise their vested interest in this speedy and convenient method of law reporting. In Tasmania, statutes are now officially promulgated electronically, thus providing a parallel system of promulgation of statutes to signing them in vellum. Courts and practising lawyers searching for precedents both domestic and foreign, whether for court use or for comparative study or for the publication of decisions and critical comments thereon have the resource available, only if they know how to access it. Pace University Law School, which has been working on the UN Convention on Contracts for the International Sale of Goods, a convention which is now applied in over 50 countries, including all major trading countries except the United Kingdom and Japan, has a Web database collecting decisions and academic writings on all the Contracting States, which makes it possible for the Convention to be applied in a uniform manner.
A few examples of ways in which technology is already changing court procedures may be given. It is not that long ago that the discovery of DNA was admitted to give greater certainty than for example the existence or otherwise of fingerprints in the identification of criminals, and to the determination of blood relationships in disputes. Recently there was the announcement that juries in England will in future be selected by computer; a measure which is intended to ensure fairness in the selection process. The method of giving oral evidence at judicial hearings, stands to change. Parties may not need to be present in the court itself; their evidence may be taken on a screen. The methods of giving notice, and indeed notifying a party of the commencement of process against him, previously confined to personal service, might be enlarged to include service by e-mail or a website. Indeed, use of e-mail has been the method of expediting the procedures of a Service Provider like WIPO Arbitration and Mediation Center in the determination of domain name disputes under the, ICANN Policy. Why such a method should forever be confined to alternative dispute settlement procedures is a question which, I am sure, must already have been asked. No doubt, hearings on appeal would be more adaptable for e-mail and video conferencing methods than hearing of oral evidence in cases. That is because appeals rely more on already recorded evidence, and on submissions of arguments which can be set out in documentary form. Obviously, it would be easier to adopt a system of exchanges of process documents, claims, responses, counterclaims and arguments by e-mail than to have oral evidence given through that same medium. After all, the United States Supreme Court relies mainly on the briefs of cases filed by parties, giving only twenty to thirty minutes each to counsel representing the parties to develop their arguments and highlight what they think is important for the Courts attention. If there can be such a severe restriction of oral argument, it must be a short step to the acceptance of distance hearing as a regular court procedure. And would telephone and video conferencing make it unnecessary for judges, parties, their lawyers, and witnesses meeting in the same premises unnecessary. Of course, court hearings at trials where oral evidence is necessary, because they depend on evaluation of evidence and the drawing of conclusions from the witnesss demeanour, may still be more a human than a technological task. But if legal trials can be done through electronic or telephonic means, what happens to the requirement that justice is best served if administered openly and in public?
So far we have given the impression that the advent of the new technologies have or may be used to improve court procedures, especially the recording of evidence. But that is not the only area which is susceptible to the influences of technological change. The fact is that not only procedural processes but also legal principles will be affected by it. The development of e-commerce opens up a whole new vista for contract law and the law of evidence. And surely, the fact that as from 1 October, 2000, the United States has made e-signatures legally binding must presage a future for the law of contracts which may put aside accepted rules on contract formation and proof. And will that together with safe methods of encryption not change the law relating to the need to have documents witnessed? Besides, these technological developments will enlarge and give new dimensions to the courts protection of rights in technological inventions. The law of patents, designs and copyrights will have to develop new techniques to meet such new challenges. Let us hope that the courts will be able, in addressing such matters, to strike the right balance between the protection of inventors interests and the need to advance the use by the public of the inventions. Another aspect of the impact of technology on the work of courts is the sophistication with which crimes of all kinds are organised and executed, and the need for the courts to meet the challenges posed this threat to society.
But technology may not be an unalloyed blessing for courts. There is always the danger of development of a dependency syndrome. People, including judges, may come to depend so completely on the new technologies that they cannot function without the facility. There is the liability of loss of material or breakdown of equipment, which would bring everything to a halt. And however useful the Internet is, surfing it is time-consuming. We have to accept that the speed at which the new technologies are being developed means that no sooner has some new technology been bought than it has already become obsolete in some sense. The cost of installation, maintenance and replacement or updating is so high that it puts these advances beyond the pockets of a large number of developing countries. The very speed with which these new technologies develop means that problems constantly arise requiring solutions. In the technological dissemination of information by organisations, for example, problems need to be overcome to make presented materials more convenient to use. Westlaw was the first to overcome the difficulty arising from pagination of documents . On the Web similar problems have tended to be avoided by the use of paragraph numbering. The Tasmanian system of statutory promulgation has overcome the difficulty associated with identifying a statute in the form in which it existed at a specified date, by a system which although contained in a single document, retrieves the legislation on the date desired by the researcher. It will be recalled that this problem was met in those days when the loose-leaf system of updating statutes was introduced. Then, the problem was, to some extent, overcome by publishing an annual volume of legislation as well as the loose-leaf volume. Compared with that the Tasmanian system is very sophisticated. That, however, is the nature of technological advance. The Tasmanian system uses XML technology which incidentally also promises to overcome a problem which rapid development in technology has in the inability of some later models to read data of earlier models, thus making them redundant.
I have so far said little of the third hallmark of an efficient delivery of justice system, namely, that justice must be fair. That is because the element of fairness must be determined by consideration of many factors which need not involve the use of technology. The laws must be fair in their distribution of rights and responsibilities; the judges, in the application of those laws, must, where an option arises, lean towards an interpretation and a manner of administration which yield maximum fairness to all parties and to the society. Even the elements of costliness and delay, which I have dwelt upon in this paper as capable of being tremendously reduced by the use of technology, would impact on fairness. The various characteristics, therefore, although separate and identifiable, tend to agglomerate together in producing a good system of administration of justice.
I am not an inventor or a visionary, and cannot say what barriers may be broken in the future in this field of human endeavour. Can we envisage the day when judges are wholly substituted by machines? I cannot make such a prediction. General discussion should disclose and enlighten future paths.