Twenty years ago, I  was on the Justice millennium task force.  We  were tasked with making scenarios for all sorts of eventualities in case of the millennium bug causing various forms of computer failure. For the under-30s: this bug could not recognize 2000 as a valid year and might stop our computers from working properly. We ruminated on eventualities: what if the electricity stops? If the electricity stops, what about the technology that manages the water table? A serious issue in a country that is largely under sea level. What branch of justice should be given priority when this happens? We quickly realized how futile this discussion was. When everything is two feet under water, giving priority to the family courts or even the juvenile courts was no longer really an option.

So, twenty years later, how do courts cope with the emergency of COVID-19? Most courthouses were closed, except for emergencies. Family cases might not count as emergencies any time soon. But what if, as happened in the Netherlands, a father cannot exercise his visiting rights because of COVID-19? My guess is that resolving this would require a face to face hearing with both parents. Besides, courts are needed as a check on governments’ use of their emergency powers, too.

Courts are turning to information technology to keep their business open. Staff and judges may be able to work from home. Some courts allow filing documents by (more or less secure) email to keep contaminated paper out of the courts. Various videoconferencing tools are in use to for hearings when necessary. Courts find them surprisingly easy to use. The hardest problem to solve is public scrutiny. Both the Federal courts in the US and the Dutch courts are allowing repeat users, such as the press, to follow hearings by video. The Dutch Bar Association urged the judiciary to open up more possibilities for work to continue. Online tools are becoming the rule, and the case judges have discretion to order face to face hearings where absolutely necessary. A second category of (somewhat less) urgent cases has been identified.  

How are courts using online tools to cope with the COVID-19 pandemic? On Sunday, March 29, I asked my Twitter and LinkedIn contacts for information about online tools courts use during the COVID-19 pandemic. Thank you all for sending sources of information. I now have some information on 90 geographic entities, countries, states and territories. They come from the International Association of Judges – thank you, Paulo Roberto Dornelles Junior, Labor Judge Member of the International Relations Secretariat of the Brazilian Magistrates Association for your March 22, 2020 report. And thank you, Norman Meyer, for pointing me to the excellent NCSC web page, by the National Center for State Courts in the US. My third major source is remotecourts.org.

Here are some first impressions. Clearly, the pandemic has not hit each of those entities to the same extent, and this also influences the measures taken. 9 entities appear not to have taken any measures yet: some states in the Mid-West of the US, some in Africa. Some court systems stay open and leave decisions on how to proceed to the case judges, taking the local COVID-19 regime into account. Most courts have cancelled in-person hearings. A number of systems have closed their courts altogether, except for urgent matters. They postpone cases until after the crisis where possible.

My main interest is in the use of IT to continue providing services. I looked at remote work for court staff and judges, remote hearings, and digital filing. Remote work for staff and judges is mentioned by 5 entities. My guess is that quite a few entities do not think this is worth mentioning, since it is business as usual. 13 entities say they use remote hearings, mostly for urgent cases only. They mention Skype for Business, Microsoft Teams, Zoom video and the Vidyo app as their technologies of choice. 6 entities mention digital filing, which may include using dedicated email. Here again, where digital filing is not exceptional, why mention it?

So, it seems courts and courts systems where working remotely is business as usual have few problems staying open for business. Others now seem to be scrambling to catch up. I need more information to verify these first impressions, so keep the info coming in, either at my Twitter account @doryontour or my linkedin page. 

International women’s (judges?) day

Someone recently suggested instituting an International Women Judges Day. Meanwhile, I guess we had better make good use of International Women’s day to pay some attention to women judges. Having been a woman judge for more than thirty years, you can bet I have stories to tell, some of them even amusing. But that would be misusing this space.

In the Netherlands, the first woman judge was appointed in 1947. A hundred years of debate had preceded her appointment. Those opposed (men) argued that women were much too emotional for the task of judge. Today, this seems almost amusing, but at the time it must have been painful for all those women who yearned to put their talents to good use. In the 1970, my civil procedure professor argued that women make better judges than men, because they are less confrontational, less threatening and more conciliatory.
Now that women judges have a numerical majority in the Dutch courts, two of my students at the Amsterdam University of Applied Sciences wanted to research the matter of women judges’ emotionality. They interviewed (1) male convicts about being convicted by a woman judge, (2) judges and lawyers about differences in emotionality among judges, and (3) lawyers and judges about appealing to women judges’ sentiment in the courtroom.

Almost none of the convicted men could recall whether they had been judged by a man or a woman, and almost none of them objected to being judged by a woman, except those from Moroccan descent. Some of their lawyers guessed this may be because they appeared to have problems with authority generally.

A prominent politician claimed that, since there were so many women judges, sanctions for violent crime had gone down. Both judges and lawyers, irrespective of their gender, agreed there was no noticeable difference in emotionality between women and men judges. Nor did they notice any difference in the sanctions. After all, there are guidelines for sanctions to be applied for most crimes.

A prominent male lawyer had boasted to the press that he could soften women judges with his suave tone of voice, the blink of an eye or a joke. The judges, when interviewed about this by my students, considered this unprofessional, exaggerated, very wrong, downright silly, ineffective, and an overestimation of his personal charm.

This may close the debate on women judges’ emotionality, but a new discussion is on the rise. Is the Netherlands judiciary becoming too “feminine”? Selection profiles for judges include, besides legal skills like argumentation and deciding disputes, competency in strong analytical skills, listening, persuasion, organization, cooperation, self-confidence, authenticity and flexibility capacity to learn, reflect and decide. I do not think those are specifically feminine skills. And is the judiciary losing some of its authority? Surveys show that confidence in the judiciary in the Netherlands has been going steadily up in the past years.

Judicial Integrity, IT and AI in Doha, Qatar 

On 25 and 26  February 2020, the Global Judicial Integrity Network held its second High Level Meeting, in Doha, Qatar. The overarching topic is always increasing judicial integrity, but this time the two big themes were gender diversity and information technology. My contribution consisted of a plenary panel discussion on information technology and artificial intelligence. Here is a summary of my contribution to the discussion.

Left to right: prof. Karen Yeung University of Birmingham, judge Madan Lokur from India, panel chair Roberta Solis, Judicial Integrity  team leader UNODC, myself, Judge Victor Momotov of the Russian Federation, Judge Ju Yeon Lee, from the Republic of Korea. (thanks to Judge Kees Sterk for the picture)

Roberta Solis sent us all questions beforehand.

My first question was on experience with in house IT development in the Netherlands.

Like most other judiciaries, the NL judiciary uses many different kinds of information technology.

Case management, office technology, multiple web sites with information, news and published case law (50.000+ judgments annually), court management tools, an intranet, email, and some e-filing and digital procedures. All this is managed by the judiciary’s own IT organization, under the Council for the Judiciary of the Netherlands.

An important reason for choosing in house development is continuity in knowledge: keeping the knowledge that is developed inside the judiciary. But there is a more important reason that is not always recognized. IT has reached a level of development that includes all work processes. It is no longer a tool, it is becoming an environment. And since it includes the primary, judicial work processes, the choice was to do that under judicial control.

The way to achieve this was to mix in house expertise with individually contracted specialist experts. The methodology of choice was agile product development, with judges as product owners. This ensured strong judicial involvement in the software development.

Some lessons to take away from this experience so far:

Development is not the most difficult issue. The most difficult issue is governance: changing work processes and implementing digital procedures require strong decision making processes geared for innovation. Most judiciaries are geared to be production organizations: they process cases. For going digital, this governance setup needs to change.

There are also some options for innovation to be gleaned from the experience in the Netherlands. The most important variables are the need for changes in the regulation and the length of the procedure to be digitalized.  

1 simple, short term processes can be replaced in one operation if they do not require changing regulations

2 more complex, longer running processes should be changed step by step, especially if they also require changes in regulation

3 setting up an entirely new process avoids the risks involved in option 2

4 setting up an entirely new institution creates the possibility to design approaches that leverage the power of going digital.

Roberta’s second question for me was about the CEPEJ charter for ethical use of artificial intelligence (AI)  in the administration of justice.

CEPEJ is the Council of Europe’s Commission for the Efficiency of Justice. CEPEJ decided to draw up the Ethical Principles in order to ensure responsible use of artificial intelligence in compliance with the European Convention on Human Rights and the Convention on the Protection of Personal Data, to help improve the predictability of the application of the law and the consistency of court decisions and to prevent discrimination.

In June 2018, CEPEJ held a session with experts on the workings of courts, legal experts and experts on the anthropological and  philosophical aspects of the emergence of artificial intelligence. CEPEJ also conducted a survey of the state of use of AI in the judiciaries, which showed that that use is still very low.

Experts produced reports on operating characteristics, legal reasoning, explaining judges’ behavior in retrospect, data protection, and predictive justice tools, that are included in the final reports as annexes.

The 5 principles in the final document are:

1         Respect for fundamental human rights

2         Non-discrimination

3         Quality and security

4         Transparency, impartiality and fairness

5         “under user control”

The Ethical Principles, therefore, also pose some new challenges for judiciaries.  

The Principles need to be operationalized, in regulation as well as organization. This is going to be a big challenge for judiciaries, as they will need to safeguard the integrity of their own data and their information systems. They also need to make their information machine readable in order for AI to make more effective use of it.