The Netherlands judiciary recently completed a digital
procedure for everyday disputes. This blog explains how eKantonrechter was
developed and implemented.
The procedure
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.
Digital access
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.
Earlier experiment
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.
