CTC2019 Day Three

On the final day of CTC2019, there was still some interesting stuff to take with us. I attended a panel discussion about introducing Online Dispute Resolution in court systems. What makes this so interesting, is that it does not replace an existing court process to improve it, but it is an entirely new process, designed to support self-representing litigants in representing themselves in a process that is as simple as possible. In Utah, they “have made a wild animal”. I like that, because experience shows that replacing existing court procedures with a digital version may not solve any problems. However, designing an entirely new procedure leveraging the power of IT can increase access to justice and reduce disposition time. Initiatives also exist in Alaska and Hawaii. In Alaska, the procedure will be for traffic tickets, which poses a specific set of problems because it is a criminal procedure. For Hawaii, still in the development phase as well, the big benefit is in handling your case online instead of having to travel to the island where the court is. Utah is piloting its wild animal, and I will follow it to see where it goes next.

CTC2019 Day Two

Day Two kicked off with a talk on cyber predictions for the 2020s by Dan Lohrman, Chief Security Officer at Security Mentor Inc. Clearly, cybersecurity is increasingly becoming an issue for courts, and for everyone else for that matter. A major factor here is the fact that we have come to depend on technology for more and more purposes. Our smartphones are our tool to organize our lives: banking, smart homes, online ordering. Data security is a major issue for courts as they go increasingly digital in their work processes. Did you know that less than half of all smartphone users use passwords or biometrics to protect their data?
The rest of the morning was devoted to Tyler Technologies and some other vendors presenting their Showcase Solutions, mostly case management systems.
In the afternoon, the presentation by David Robinson, visiting scientist to the AI Policy and Practice Initiative, on Civil Rights and Pretrial Risk assessments, was an great follow-on to our workshop on AI on Day One. Background to this presentation is the effort to reduce pretrial detention: getting rid of bail, and detention only for those situations where is it really necessary. Research shows that measures to reduce pretrial detention often result in increased detention, for instance in the case of the New Jersey Initial Release Decisions. Pretrial Risk Assessments cannot safely be assumed to reduce pretrial incarceration, and it may even displace onther reforms that would be effective. For instance: narrow who should be jailed, robust hearings soon after arrest  - in the Netherlands, an arrested person needs to be seen by a judge within 48 hours after arrest - new supportive services to mitigate the risks - a simple thing is to text message defendants reminding them of their hearing - and get rid of the bail system as a routine measure. WHen using the assessment, ensure transparency, community oversight and governance, ensure decisions are rare, deliberate, and independent of risk assessment.

CTC2019
On Day One, the conference was kicked off with a keynote by prof. Richard Susskind. He gave us a preview of his new book that is coming out in November: Online courts and the future of justice. Traditional courts will lose respect, unless they go online, he says. Ten years ago in Denver, we talked about the growing numbers of self-representing litigants and how they could be helped to get justice. These days, they are somewhat harshly called “SRLs”, but for the rest there is also good news. Some court systems are developing or piloting online dispute resolution, aka ODR, tacked on to the front end of their court procedures. Justice Himonas of the Utah Supreme Court tells me their ODR - still in a pilot in a few courts - has resulted in more defendant engagement, which was also the intention with the project. Other states like Alaska and New Jersey are doing similar things. In the Utah courts, parties in a small claims case have the first 48 hours to negotiate among themselves, and then a facilitator steps in to guide them through a mediation-type process. If unsuccessful, they can opt for a simple court procedure or a traditional one. If the evaluations are positive, it will be rolled out to the entire state of Utah. The mediation phase is mandatory, but so far no one has used the opt-out possibility. The whole process is online.
And yes, also on day one, I moderated a workshop on Artificial Intelligence, with prof. Nicolas Vermeys of Montreal University, the Cyberjustice Lab, and Shannon Salter, chair of the Civil Resolution Tribunal in Vancouver. What is AI, how does it work, how is it applied in Vancouver, what are the known drawbacks, can they be countered with the Ethical Principles developed by the Quality Group of the European Commission for the Efficiency of Justice.

Reflecting the past year

Beginning of August 2019, I uploaded four new articles to my publications page. They are a reflection on what happened during the past year. The first article, called De legal tech van de rechtspraak (the courts' legal tech), in Dutch, was a contribution to the Legal Tech special of Computerrecht, published in April 2018.  I could not upload it here sooner because of restrictions imposed by the publisher. It is a description of the state of court IT in the Netherlands judiciary in the spring of 2018. However, in June 2018, the Judicial Council decided not to implement the digital procedure for commercial claims. The Council also decided to discontinue the Quality and Innovation (Q&I) Program. This development left me quite speechless for a while. But when, in November 2018, The Tijdschrift voor Internetrecht asked me to reflect on the lessons from the Q&I program, I produced another article in Dutch, Lessen leren uit KEI (Learning lessons from Q&I) published in January 2019. Meanwhile, I had acted as a speaker at a number of conferences on Court IT. I generally held about the same presentation on court IT and its pitfalls. I summarized the presentation in an article in English: Digital justice, nice to have but hard to achieve. I publish an early draft of it here, since its official publication is still pending. This article presents both the legal tech from the first article and the lessons from the second one, as well as some conclusions on ways forward for court IT. On a more positive note, I took part in the ongoing discourse on the ethics of artificial intelligence. This resulted in a contribution to a special edition of Les Cahiers de la Justice, on Les Défis de la justice numerique (The challenges of digital justice). This article, Quelle place pour l'intelligence artificielle dans le processus de décision d'un juge (the place of artificial intelligence in the judicial decision process), is the French version of my earlier paper for the Netherlands Parliament, also on the publications page.

Court digitalization: not easy!

A visit to the showcase court of a judiciary somewhere in Europe. The court clerk shows us how he works digitally. If he wants to view a document in a case, he looks up the case in the registration system, notes the case number on a piece of paper, closes the registration system, opens the file viewer, taps in the case number, and sees the documents in the relevant case. The PDF documents in the file are arranged in chronological order, that is, if they are properly organized. The secretary checks new arrivals, completes the registration system where necessary, and allows cases into the system.

The courts in this country went paperless a few years ago. Everyone can submit a case digitally in the portal. What happens behind that portal is a different story. Some adjustments were made to the old systems that date back to the 1980s. The users, judges, and court clerks, are not happy. They have more work, and the courts also use more paper than before. After all, they now have to print documents themselves if they want something on paper, because they no longer receive their information on paper.

Now that I am retired, I have time to look around in Europe to see how the courts are working digitally. When I give a lecture or a workshop somewhere, I also pay a visit to the people who develop the IT for the courts. My impression: they all have the same struggle: How to get from a traditional, paper-based work process to one with only digital information. Some do it step by step; maybe that works, but it takes a long time. Others start with a digital case file. That also takes a lot of time. My showcase country started at the front end, and that now gives all sorts of problems with the work processes within the courts. Others have a wide-ranging program with a lot of funding, and whether that actually works is uncertain. In all cases, the transition places many harsh demands on the judicial organizations. The system and the process legislation will quickly become so inextricably linked that they can no longer be seen as separate. The work processes must be standardized and arranged from the outset. Decision-making processes must be in place that determine who is allowed to decide on the work processes and the system and when. Experience shows putting user friendliness first is key, and making savings should not be the overriding goal. That makes for dissatisfied users. After the experience with the digital commercial claims procedure in the Quality and Innovation Program (more about that some other time), my impression is that the judges in the Netherlands would never have accepted what the judges in my example judiciary have to put up with.

Another consequence of retirement: this was my last blog for Dutch legal magazine Mr-online. This is the last time that I, as usual just before the deadline, send my blog to Mr-online. Not because I have nothing more to say, on the contrary. My agenda is full of guest lectures, conferences, panels, fora and consultancy assignments. There are interesting developments, such as the discussion about artificial intelligence and what that can mean for the judiciary. I will keep writing about it on this, my own Technology for Justice blog. I report new blogs to my followers on LinkedIn, Facebook and Twitter.

It is time to make room. Mr-Online, thank you for having been my forum for almost ten years.