Taking The Law Online
By Jazz Osvald
Courts are notorious for being stuck in a constant loop of gridlock, delay, and inaccessibility. However, technology-driven innovation has sought to change this never-ending cycle through a new form of alternative dispute resolution (ADR); online trials.
In the past decade, ADR has emerged as an incredibly popular (and often mandatory) measure that prevents litigation. For the uninitiated, ADR is a process by which disputes are settled other than through the courts, and with the assistance of an impartial third party. For clients, it cuts costs and stress. For judges and lawyers, it eases an incredibly congested court system. Online trials are a new and radical form of ADR, allowing the dispute to be removed from a court setting and decided entirely online by an impartial third party.
Several countries have introduced online trials differently, with the aim of freeing up court resources and alleviating costs. China has implemented an AI-driven app that allows parties to attend trials online from anywhere in the country, whereas the UK and Canada have opted for an online tribunal focused on small claims.
Court attendance in China has been the biggest bottleneck to litigation, according to John Liu, Chief Technology Officer at Gridsum, a firm that provides AI solutions to governments and private companies around the world.
Gridsum has partnered with the People’s Court Press, the official publishing group of the Supreme People’s Court of China, and Tencent, one of the world’s biggest tech companies, to solve this problem. It has created Faxin Wei Su, an AI-driven legal database integrated with Tencent’s WeChat—China’s Facebook equivalent. The integrated platform will allow parties to join to a proceeding remotely using WeChat’s video chat function. Parties may make inquiries about a case’s status, submit files and set appointments with judges. They may also question evidence throughout the proceedings. The platform’s ultimate aim is to assist the courts in transitioning to an efficient “smart court” system free of congestion.
China’s first online trial was recently held in Hangzhou. It concerned a copyright dispute between two litigants located in opposite ends of the country and only took 30 minutes to conclude. While video conferencing is used in Australian courts, Gridsum’s platform is far more advanced. Faxin Wei Su takes the form of a WeChat mini-application that would be available to any of its almost 1 billion active monthly users on any mobile device, meaning that anyone could attend a trial anywhere in the country using nothing more than their phone.
UK and Canada
The UK and Canada have begun to facilitate online tribunals for small claims in an effort to free up court schedules for more serious matters.
The UK’s Online Court (OC) system aims to process small claims, automating them with minimal supervision. The OC has three phases.
Firstly, the OC’s systems will guide the user through an analysis of their legal issue so that it can be properly understood by the other side, and by the courts. In essence, the purpose of this phase is to assist the litigant in producing a statement of claim.
Secondly, a case officer is employed to facilitate case management and conciliation. This phase aims to utilise ADR if necessary, as well as educate the litigants about the small claims process, and their options. If the dispute is not resolved, it then proceeds to the final phase.
In the third and final phase, a determination is made by a judge, who relies on the submitted documentation. The parties are then notified of the outcome online, or over the telephone.
There also exists a phase 0 and 0.5. The former encourages parties that undertaking litigation in court is often a last resort, while the latter seeks to establish whether the parties have a legal dispute.
The OC’s creator, Lord Justice Briggs of the UK’s Supreme Court, claims that the benefit of this model is that it provides clients with “insulation” from the civil system’s adversarial culture. This can certainly be seen as beneficial, as the court system can be incredibly stressful, particularly for those that are unfamiliar with the process. This stress can be altogether avoided if the litigant is separated entirely from the judicial process. Additionally, small claims matters are typically fairly simple, and conducting the process online would alleviate stress on the judicial system, as well as reduce costs for litigants. This system has already begun testing for Tax Tribunal matters, with claimants being able to use video links to appear from home or work.
Canada’s Civil Resolution Tribunal (CRT), similar to the UK’s OC, launched in mid-2017. The CRT also facilitates the quick resolution of small claims disputes, with a focus on rural litigants. British Columbia’s population is sprawled across a predominantly rural area, with many unable to access legal services or courts. The CRT would heighten their access to justice by allowing them to handle small claims from the comfort of their home.
Australia’s online court facilities are not as extensive as their overseas counterparts. Australians are able to lodge documentation to Federal and State courts electronically through electronic lodgment. The Australian Federal Court has also introduced an e-court scheme that works alongside e-lodgment, which is used for case management and the hearing of specific matters. The Land and Environmental Court is another example of a court that has utilized electronic processes, allowing for online document filming and preliminary case management. It is important to note that New South Wales courts do facilitate an ‘Online Court,’ but this is merely a messaging tool that allows for communication between practitioners and court staff in instances where it is not necessary to attend court. The breadth of its application is left wanting, as it is not available to non-practitioners and is only used for a select few non-contested civil matters or preliminary committal in criminal proceedings.
Australia’s systems are distinct from Canada and the UK’s solutions as they do not facilitate the entire court process, but instead take a piecemeal approach. Former High Court Justice, Micheal Kirby and NSW Law Society president, Pauline Wright agree that the Canadian and UK services are heading in the right direction and suggest that Australia should adopt similar systems. From examination of these international online court solutions, it is clear that Australia’s systems should aim to provide more holistic services by facilitating entire court processes. It may also be beneficial to examine whether Australia’s video-linking services need streamlining akin to systems like to Faxin Wu Sei.
Introducing online trials in Australia could potentially minimize the endless loop of gridlock and stagnation that is present in our court systems, as well as making justice more affordable. It would also prove to be an unprecedented step forward towards accessible justice for those who live in regional and rural locations, as an online trial system would reduce or even eliminate the inconvenience of travelling long distances to court. An online court would also provide services such as Legal Aid with much-needed resources such as greater access to regional lawyers, as this system would allow pro bono lawyers to represent a litigant over long distances without the need for lengthy travel or the associated costs.
Bringing Australia in line with other jurisdictions would not only end the endless loop of judicial gridlock, but also make court processes more transparent, and provide a much-needed boost in trust in the judiciary through greater access to justice.