CTC2015 Day 3

CTC's Day 3 brought the last installment in the track on tools for 21st century judges, but it was actualy about something else. The number of cases in the civil courts is going down, ODR numbers are growing. The US courts have thought about this, and come up with a report on possible solutions. And since technology affects everything, there is a lot of technology in the report.

The panel members were all asked to present their perspective, and prioritize the technology that they felt was most important. For the judge on the panel, it was case management; her insight was that case management is not document management, but actually bringing cases forward. Cases may not all be the same but they are like snowflakes: they are all white, and if there are a lot of them you need to get out of the way, they're just snow.
Push notifications were the favorite of the court manager. The courts CIO's priority was in litigation platforms. His point: courts need to become more user-centric. He referred to the Rechtwijzer 2.0, a site developed by the Dutch Legal Aid Board for couples who want to arrange their own divorce, which he found really cool.

For me, one key question remains: what is the reform going to achieve? Are the courts going to try and retain the segment of cases that is now increasingly handled by private ODR? Will they decide that the courts' core business is resolving disputes that do not have a predictable outcome, as Stephen Breyer, justice in the US Supreme Court once said?

In the endnote, the presenters observed how more and more judges are getting involved. Because my focus was on tools for 21st century judges, I had to miss out on a lot of interesting stuff, like social media and how courts use them and - my other favorite - access to justice. Fortunately, most of the presentations are on line, and sessions were streamed as well, all to be found on ctc2015.org. NCSC, with their limited means, have put together a very interesting, and for the courts, challenging conference. I look forward to CTC2017 in Salt Lake City. 

Day 2: apps, online forms and more judicial tools

Day 2 started with the Midnote. Tara Thomas talked about a lot of apps and their pros and cons. Apps for time saving, for project management, for calendars, conference calls, information sharing, cloud storage of documents. Members of the audience shared their experience with using some of them.

Collin County in Texas shared their own experience in going more paperless. Great insight: electronic document means no more copies, it is always the original. Court staff learned that putting two copies of a document in an electronic case file is unnecessary. 

Williamson County Court judge Bill Gravell explained how they use online forms for self-representing litigants to file their case. The court went from processing 45-50 cases per day to 100, handling time was reduced from 20 minutes to 10 minutes, and instead of 2 jury trials in a day they could now handle jury trials. As cases came to trial faster, defendants chose more often to plead guilty, and the court could drop the jury trial. Bill then introduced me to the people at Tyler Technologies who developed the forms. Tyler actually developed an engine that courts can use to generate their own forms, since they all have different requirements. The engine is a really useful tool. After lunch, I turned my attention to judicial tools again. Three IT staff from Missouri, Wisconsin and Utah shared their experience on developing tools for judges. They had all developed screens with panels presenting different kinds of information: a calendar, pending tasks, quick links to research tools and to Word. Wisconsin gave the judges a private, confidential view of their own statistics: cases pending, cases resolved, that sort of thing. At first, some judges did not want to see it and asked the IT staff to take the panel away. It stayed.

CTC2015 opened on Tuesday morning with a keynote by Mark Britton, CEO of AVVO a platform for legal advice and services. His job was to shake the audience out of any complacency they may have had: the customers are dissatisfied, they are finding other ways to resolve their disputes, your monopoly is not going to help.
The image projected by the movie The Net is that of fear of having personal information on the Internet making you vulnerable to terrorist who want to use it to kill you. 
With Japanese cars and transistor radios for an analogy, he showed how technology disrupts from the consumer up: a new product, for new consumer market: Modria, building an ADR platform, document assembly services like legalzoom; how non-profit legal services are a viable possibility.
Note from the audience: Modria also built a support web site for couples wanting to have an amicable divorce for the Dutch Legal Aid Board.

The Judicial Tools Maturity Model was, for me, the most interesting finding of Day 1. It shows how a court or a judge can grow from paper-based to basic, then to intermediate to an advanced level of IT use. I expect we can use it to test all following presentations on tools for the 21st century judge by their maturity level in the model. From what I saw, the Minnesota courts are moving up in the charts, and the Missouri courts are doing it much more slowly.  

CTC 2015, Minneapolis, Sept 22-24

The 2015 Court Technology Conference is about to start, on Tuesday, September 22. The venue this year is Minneapolis, Minnesota in the United States. This blog is the first of my usual CTC blogs for this year. Keep watching this space for more every conference day. This time, my interest in court technology is even more urgent than in past years. As the product owner of the Netherlands' courts digitalization of the civil procedure, I am acutely aware how difficult developing court IT is. So, I look towards US courts for experience on developing court IT.

Tools for 21st century judges 
The educational track on tools for 21st century judges caught my eye right away. It promises to explore technology tools that can assist judges in making the transition from paper case files to an electronic bench. This transition is very complex as well as critical to maintaining court performance.

Access to justice
Next, I'm always interested in access to justice. As my colleague Martin Gonzales warned repeatedly at CTC2013, more and more people are forced to represent themselves for lack of legal aid. So how can e-filing help self-representing litigants? What other examples do US courts have?

Keynote on Innovation 
The first keynote will address the Innovation Imperative. Mark Britton, founder and CEO of the world's largest community for legal guidance and services, will address innovation. Courts' primary role is to guard the existing legal order. This makes innovation a particular challenge for courts. This keynote opens the conference on Tuesday morning. The keynotes and a lot of other sessions will be streamed live.
Click here for the program: http://www.ctc2015.org 

Flying can be risky

In the last week of August 2015, The European Study Group on Pubic Administration (EGPA) met in Toulouse, France. Eighteen study groups exchange their latest research every year. I presented in the Justice and Court Administration group. Over three days, more than fifteen speakers treated us to a variety of research findings. Amazing, all the things one can research. Some highlights.

Ukraine
Two interesting contributions from Ukraine, both from the United States Agency for International Development (USAID) Fair Justice project. Olga Nikolaieva presented her research on improving alternative dispute resolution in commercial disputes. Sergii Suchenko described how a system for measuring judges ‘workload is being developed, in order to distribute resources better and also to evaluate judges‘ performance.
Sylwia Moravska (Gdansk, Poland) told us how she tries to make court staff treat court users more courteously. She found it hard to answer questions about the goal of her attempt.
   

Knowledge sharing
Knowledge sharing was a hot topic. Jose Ferretti from Brasilia, Brazil gave a presentation that made most of us think: I don’t get it, but I sense he is on to something he cannot yet express in words. That was no knowledge sharing just yet. Sandra Taal from the Netherlands had used her data from other research to test if there are relevant differences in the way men and women share knowledge. There is, but the explanation is rather in women’s more social behavior.

Switzerland
In Switzerland there is some surprising, interesting research.  For instance into the emerging paralegals/legal support staff hire to keep on top of a growing work load. Does it lead to paralegal-justice without access to a judge? Another example: Courts in Switzerland are usually quite small, and they need to deal with different stakeholders, both inside and outside the courts. I had never really thought about this but come to think of it, I recognized some similarities. And then there was the research about regional differences, though to be really large in Switzerland, with all those cantons, languages and cultures. The configurations were different than expected. This research originated because the courts would not participate in it. And now it has been done, they do not want it published.

Finally: Netherlands
in the Netherlands, there is also some interesting research going on. Jos Hoevenaars (Nijmegen) presented his PhD research into the use of the preliminary reference procedure in immigration law. It could produce case law, but it is expensive and it takes a long time. Kars de Graaf and Bert Marseille (Groningen) tested the reasoning behind a proposed law to restructure the system of administrative courts of appeal in the Netherlands. Frans van Dijk, director of the Netherlands Judicial Council, presented a survey by the European Network of Judicial Councils into the perception of judges and citizens of the independence of courts and judges. Independence is perceived most in Denmark, but otherwise, results vary considerably. The image of – for instance – the courts in Poland is very poor.  This survey has produces a lot of data that can keep researchers busy for years to come. The data are open, and so is the report. Finally, I presented the way the courts in the Netherlands attempt to apply lessons from earlier IT-projects in Europe. The key is to manage complexity in all domains by keeping everything as simple as possible. I expect our lessons can be of use to other countries. More knowledge sharing.

Flying can be risky
There were seventeen other study groups. Virtually all those who research public administration in the Netherlands flew back on the same flight. Quite a risk for public administration in the Netherlands.  

As courts go digital: what about online dispute resolution?

Your technology is fifteen years old, a member of the Bar said to me recently, implying we were way behind the times with the technology the Dutch judiciary uses to build its digital procedures. Even if that is right (which it isn’t), that would be a great leap forward from our current systems dating from the 1980s. And yet, he had a point. The new procedure is simpler, but it still looks a lot like the old paper process. A lot of what we do still is a digital version of our paper process. The evolution of the Google car shows we need to develop one step at a time. Moving from a paper based organisation to online dispute resolution, or to an information-based organisation, involves learning to work with new technology. However, we also need to think about what comes after this step. This blog tackles one of the - for traditional courts - most disruptive technologies around: online dispute resolution (ODR).  

As the Dutch judiciary is going digital, the question arises whether this should also include ODR, and whether ODR can replace a face to face hearing in court. Are Skype and FaceTime capable of supporting a debate about the merits of facts and rules, and are people familiar enough with remote communication to grasp new ideas remotely? Or will ODR be suitable for simple disputes only?  

ODR is in the spotlight. In February 2015, the ODR Advisory Group of the Civil Justice Council in the United Kingdom presented Online Dispute Resolution for low value civil claims. Presided by Richard Susskind, the Group examines the field of ODR and makes recommendations for ODR in the legal system of the UK. The report is supported with a wonderful web site  full of background documents, video’s and interviews.  

The system, Her Majesty’s Online Court (HMOC), has two main goals: reduce the cost of dispute resolution and increasing access to justice. Whether or not these two goals are mutually exclusive has been a subject for heated debate for years.
HMOC’s scope will be disputes that are not too complex, and with a value of £ 25.000 at most. It will have three tiers. 

Some first impressions

Tier 1 is mainly about providing information. A web platform can serve to provide this kind of information, unilaterally or through interactive Q&A. My favourite platform is the UK’s Advicenow.org. In the Netherlands, het Juridisch Loket, the government-provided free legal kiosk, is such a platform, and there is interactive Q&A on Rechtwijzer, by the Dutch Legal Aid Board. Modria, the makers of the eBay and PayPal dispute resolution systems, also built Rechtwijzer 2.0. This new Rechtwijzer, now in the final phases of development, is, at present, meant to provide support for couples managing their separation or divorce.
Automated negotiation support in a web platform with user interaction, like Cybersettle, segues into Tier 2. In Tier 2, a human facilitator/mediator can use remote communication, either synchronous such as instant messaging, video conferencing or the telephone, or asynchronous communication like messages or email. Communication with parties is needed to reduce the complexity of the dispute to a level that enables resolving it.   
In Tier 3, the online judge can also use remote communication where needed. This judge also needs a digital case file and secure web communication.
Hazel Genns research taught us that the nature of the problem people have is an important determinant for the type of resolution they require. Consumer problems are resolved easily if the seller has an effective complaints procedure. Problems in long term relationships like family and labour problems are hard to resolve, but also hard to bear, which is an incentive to resolve them consensually. Problems with government agencies tend to be harder to resolve... Our own experience with the eKantonrechter, a simple, consensual court procedure for simple problems, shows that there seems to be little inherent demand for this type of procedure. Consensual dispute resolution has its limits. On the adversary side: low value disputes are not always simple. ODR can be suitable for low value disputes if it can reduce costs, to the user and to the taxpayer, and on the condition that it keeps the complexity of the dispute at an acceptable level – neither over simple nor unnecessarily complex.  

·         Tier One of HMOC should provide Online Evaluation. This facility will help users with a grievance to classify and categorize their problem, to be aware of their rights and obligations, and to understand the options and remedies available to them.

·         Tier Two of HMOC should provide Online Facilitation. To bring a dispute to a speedy, fair conclusion without the involvement of judges, this service will provide online facilitators. Communicating via the Internet, these individuals will review papers and statements and help parties through mediation and negotiation. They will be supported where necessary, by telephone conferencing facilities. Additionally, there will be some automated negotiation, which are systems that help parties resolve their differences without the intervention of human experts.

·         Tier Three of HMOC should provide Online Judges – full-time and part-time members of the Judiciary who will decide suitable cases or parts of cases on an online basis, largely on the basis of papers submitted to them electronically as part of a structured process of online pleading. This process will again be supported, where necessary, by telephone conferencing facilities.

The proposal takes the insights from Hazel Genns Paths to Justice on the needs of people with justiciable problems into account. Genns research was replicated in the Netherlands by Ben van Velthoven and Marijke ter Voert and reported in the dispute resolution delta. This research and its later additions shows that often, information is enough to help people resolve their problem. Sometimes they need someone to help them. If that also fails, there is still the court of law.  

The report does not explicitly analyse the process of dispute resolution, perhaps because there was no judge or magistrate in the Group. Here is what I mean by analysis. Parties first discuss the problem between them. They both introduce information into the debate. Tier 1 can help them with new information suggesting how to resolve their problem. This information can be about ways to resolve problems, but also about legal rules and trends in case law. If they find a solution that satisfies them both, the problem is resolved. If not, they can then choose to use tier 2. In tier 2, the facilitator enters the arena. He or she can help the parties to introduce even more information about their side of the dispute. It is important that the information the parties used in Tier 1 is also still at hand. Next, all that information can be reduced to what is relevant for resolving the problem. Some negotiation or mediation may be useful to help parties find a solution. If that fails as well, the online judge in Tier 3 can decide the dispute with a judgment.

This brief description provides some indication for the way in which information technology can be leveraged to resolve disputes.

Back to my initial questions

Hazel Genns research taught us that the nature of the problem people have is an important determinant for the type of resolution they require. Consumer problems are resolved easily if the seller has an effective complaints procedure. Problems in long term relationships like family and labour problems are hard to resolve, but also hard to bear, which is an incentive to resolve them consensually. Problems with government agencies tend to be harder to resolve... Our own experience with the eKantonrechter, a simple, consensual court procedure for simple problems, shows that there seems to be little inherent demand for this type of procedure. Consensual dispute resolution has its limits. On the adversary side: low value disputes are not always simple. ODR can be suitable for low value disputes if it can reduce costs, to the user and to the taxpayer, and on the condition that it keeps the complexity of the dispute at an acceptable level – neither over simple nor unnecessarily complex. There is more to ODR than just an alternative to a face to face court hearing. When a dispute needs a fresh look at the merits of facts and rules, and possibly a new idea of the stakes involved, a face to face court hearing may still be the most effective way of resolving it. As remote communication becomes more mainstream and cheaper, remote hearings may also become more mainstream.