The Netherlands judiciary recently completed a digital procedure for everyday disputes. This blog explains how eKantonrechter was developed and implemented.
The procedure is based on an existing provision, article 96 of the Code of Civil Procedure, giving court access to parties who want to put a dispute before a judge together. The procedure is consensual in the sense that parties agree to put the dispute before the judge together. They can do so themselves, no legal representation is required. A judgment is guaranteed within eight weeks of filing. The disputes can be small claims of up to € 25.000, or labor, consumer or housing problems. There is usually an oral hearing, but the fixed, limited disposition time does not allow for hearing witnesses or otherwise thorough examination of the facts.
In part 4 of Technology for Justice, my book on improving justice with information technology, I have laid out some guidelines for web access to justice and courts. Communication should be based on understanding the information demands people have, given that they have a problem that needs to be resolved. Information needs to be understandable to people with an average level of education. The information provided needs to give people the confidence that if they follow the instructions, they will achieve results.
Direct access to courts for citizens had been tried before. There was an earlier experiment, at least twenty years ago, to give citizens direct access to court. It involved a paper form that could be bought in a stationery shop, filled out, and sent to the court to file a claim. The court then summoned the other party, which was the beginning of a civil procedure. Judges struggled with the information people put in the form. Parties struggled with the complex procedural rules of an adversarial civil procedure, that were hard to explain and even harder to understand.
The new procedure
This time, the procedure was designed to start with a digital form. The parties, after agreeing to put their dispute before the court, each fill out a part of it. Because the procedure is consensual and not adversarial, the rules are less complex. The procedure itself is conducted entirely over the internet, except for the hearing which is face to face in court. For authentication, parties log into the kiosk with DigiD, the Dutch government digital ID. For extra security, they get a text message with an access code. For firms, authentication works with eHerkenning, the government ID for legal entities. Lawyers log in with their Bar ID. One party takes the initiative, logs in to the judiciary's digital kiosk, and fills out the first part of the form. The system then provides a code, with which the other party can log in to this particular case. The other party then fills out the other half of the form, and submits it to court. The court then reviews the information for admissibility. As there is only one court hearing and the disposition time is limited, only simple cases can be admitted. After the dispute is admitted, parties can provide additional information and upload documents they want to present as evidence. The court fee is paid electronically as part of the submission process. Parties are also presented with optional time slots for the oral hearing. They can indicate when they are not available. The information from the forms is fed into the court’s case registration system and into the digital case file. The oral hearing is then set by the court. After the hearing, the judgment is uploaded into the digital case file.
Building digital access
My team, charged with designing and then building the new digital procedure, was determined to do better than the paper form. It was particularly important to get the forms right. We started with a workshop discussing the information the judges need to determine the merits of the case: what is the problem, what happened, did they attempt to resolve the dispute amicably, what is the claim, what evidence is available. We then designed different ways of asking questions lay people are capable of answering. Web technology offers ways of asking structured questions: yes/no, drop down lists, radio buttons. This information is accurate, and can be handled easily. However, it is rather poor in content. Asking for the story: what happened, what makes you think so, what is the background, provides much richer information, but it is not quite so manageable. We tested the different methods, on paper, with a test panel provided by the Dutch Consumers Union. We had devised fictional disputes, cases our panelists could use to fill out our forms: a contract case about a fading couch, another one about a labor dispute, and a tort case involving physical damage. This enabled us to check whether different types of disputes can be described adequately. With lots of feedback from the panel, we designed a digital form combining structured and unstructured questions. The panel came back, tested this form, and told us they needed more context and help in answering the questions. We then added explanations and help information. For those who feel they cannot fill out the forms themselves, we added a link to the legal aid kiosk, the Juridisch Loket. The panel then came back to test the final product. They told us they could use the form easily. The eKanton procedure for citizens went live at the end of May 2014.
What comes next?
Devising a procedure is one thing, whether it meets the needs of those who seek justice is a different matter. Whether or how digital access to court is an improvement that will enhance access to justice is one of the major themes in the access to justice debate. It remains to be seen whether the eKanton procedure will be used by citizens. For the Dutch judiciary’s digitalization program, it was an opportunity to take a simple, existing procedure, digitalize it and learn about the process. This experience now feeds into the digitalization program for all other court procedures. More about those later.