What technology will courts be using in 5 years’ time?

Hon. Judge Andrea Tsalamandris

We are pleased to share the following post from our friend, the Hon. Judge Andrea Tsalamandris from Melbourne, Australia on "how technology can be used by judges and court administration to create efficiencies in our courts, and enhance access to justice.

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As a judge who was appointed to the County Court of Victoria (CCV) a few years before my 50th birthday, I was very pragmatic in embracing technology in my new role. I thought it was safe to presume that when I retired in twenty years’ time, I would not be working with paper court books or handwriting my signature on court orders. 

My initial interest in technology was simply to see how it could make my life as a judge easier.  However, after attending an E-Courts Conference in the United States in 2018, my eyes were opened to the manner in which technology could be used within courts, to benefit court users, as well as judges and court staff.  Shortly after attending that conference, I was asked to chair a newly created IT committee at the CCV, to guide the court in our digital transformation. My teenage children thought this was hysterical, as they did not consider me to be in any way “tech-savvy”; and that was indeed true. But I was willing to learn and was keen to see, in practical terms, how technology could assist all areas of our court, from registry, to the courtroom and in chambers.

Whenever I talk to people about our plans for the future, I invariably pose the question - what will we be doing in 5 years’ time? Most of us accept that change is coming, and that it is probably coming more quickly than any of us expect. Having spoken with other judges and court IT managers in Australia, USA, UK and UAE, here is a list of where I think we are heading:

1. Paperless judge alone trials

For the last two years, I have been working with electronic court books, instead of paper court books.  The court books contain all the documents which the parties seek to rely upon during a trial. The first e: court book I used had approximately 4,500 pages.

The benefit to me of working from an e:court book, is that I can read the court book wherever I am, without having to carry around a multitude of folders. I simply have my laptop. This makes it much easier to work on a judgment from home, or when traveling.

Another benefit is that the court book is readily searchable for text.  My Associates ensure that the court book contents have been converted for Optical Character Recognition (OCR), thus obviating the need to search through countless pages to find a particular reference or word in the tendered documents or transcript. Instead, by using a simple text search, within an instant, I can see where that word appears, and in what context.

The key to transitioning to paperless trials is to have a reliable product with which to mark up the electronic court book and transcript, in the same way, I previously did when using a paper court book - by writing notes in the margin, or highlighting text in different colours.  Bookmarks and post-it notes are also essential.  It is important that the PDF software is intuitive and easy to use, especially whilst on the bench, when you need to be able to annotate and navigate pages quickly. There are several products available, which are dependent upon the particular device you are using. I have trialled a few different products, including Adobe Acrobat Pro, Drawboard and PDF Expert, and I am always keen to speak with other judges about the products they are using and the manner in which they are using them.

After two years of paperless trials, I am a total convert. Most judges in the CCV’s Civil and Commercial divisions are also now conducting paperless trials.

In addition to an electronic court book for the judge, there should also be a touch screen within the witness box, to enable the witness to be shown particular documents electronically, thereby totally eliminating the need for paper documents.  It would then be possible to show the witness video footage, which can be freeze-framed at a relevant point in time, for the witness to make any necessary annotations, a screenshot of which can then be electronically tendered.
 
The cost and paper savings to parties who no longer need to mass-produce folders of court books are enormous, and there are obvious benefits to the environment.   

2. Paperless jury trials

Over the last 18 months, the Victorian Supreme Court has conducted a number of criminal trials electronically. In such cases, each juror has been given a iPad on which exhibits are uploaded throughout the course of the trial. Each juror is able to make their own notes and mark up the documents, just as the judge is doing on their own device.  Whilst in each of these trials, the jurors have been offered a folder with paper exhibits, no juror has yet taken up this offer. Even the oldest of jurors have been comfortable using the very simple application which securely stores the exhibits.

The iPads are locked down, with restricted access to only the Jury application. At the end of the trial, the tablets are wiped by each juror, ensuring that the contents are never seen by anyone.

To date, the judges, parties and jurors have all reported  favourably on these electronic jury trials. The greatest noted benefit has been the considerable court time saved;  the uploading of documents is almost instantaneous, navigating between exhibits whilst in court is quicker than moving between folders of paper exhibits, and witnesses are often more concise in their description of matters, when everyone is able to readily see what is being described.

For several years, the Southwark Crown Court in London has also conducted electronic jury trials in major fraud cases, and has also reported favourably on their use.

Given the reported benefits in those criminal trials, the CCV is now piloting the use of electronic trials in our civil division in personal injury trials. It is likely that the majority of jury trials will be conducted in this way in the not too distant future.

3. PowerPoints for jury charges

It is now rare for any presenter at a professional development conference to speak without a PowerPoint. It is widely recognised that a visual aid assists the audience in understanding and retaining the information conveyed in the presentation. The same logic should apply to charging a jury. The task of understanding complex matters of law, as explained by the judge, would logically be made easier if it was supplemented in written form.

In the CCV, some judges are beginning to use PowerPoints, both for opening remarks and for the charge. The Victorian Court of Appeal recently acknowledged the benefit of such PowerPoints provided in the decision of Radosavlevic v Residential Commercial Industrial Roofing Pty Ltd [2018] VSCA 337.  It was noted that :

“Self-evidently, any measure designed to enhance jurors’ comprehension of the matters which they are required to decide should be encouraged…It is a matter of universal experience that written aids greatly enhance comprehension – and retention – of instructions given orally.

…To that end, we see considerable utility in a carefully-prepared PowerPoint presentation if the judge considers such to be appropriate.” (at [63] – [64])

4.  Precedents for automated (and easier) creation of common documents

Whether it is a registry staff member typing up draft court orders and dates, or a judge preparing a jury charge, a considerable amount of cutting and pasting, or repeat keying in of information occurs in different areas of a court house each day.  To save time and minimise mistakes, a large number of these documents can be generated with the utilisation of document automation software, which are populated with the answers to a series  of questions, to create a draft document. 

The CCV has designed such precedents for the easy preparation of pre-trial timetable orders.   Prior to this development, a judge would either approve a draft order by signing it, or would require the draft to be amended. If changes were required, the judge’s handwritten amendments would be taken to registry, where changes would then be made on the computer, the document re-printed, and then taken back to the judge for signing by hand, before being sent to the parties.  With the development of an automated system, a draft interlocutory timetable is now automatically created listing a matter for trial.  It is then checked online by the judge, who can either approve the orders with an electronic signature, or request that changes be made. Such changes can then be made promptly by a registry staff member, the judge can then inspect these changes online, and if no further amendment is needed, an electronic signature is attached by the judge, and the order is then emailed to the parties. The creation of this precedent, and online system of communicating between registry and the judge, including electronic signatures, has significantly reduced the turn over time for the generation and communication of such standard timetabling orders.

The Judicial College of Victoria is also in the process of designing a precedent to assist in the preparation of a jury charge, and simultaneously, a jury PowerPoint presentation.  For example, in a civil jury trial, it is proposed that a judge will be asked a series of questions, relevant to the type of case, such as the name, title and gender of the parties, elements of the cause of action, relevant defences, relevant evidentiary directions, and heads of damages.  The answers to those questions will then assist in the creation of a draft charge, and PowerPoint presentation. Whilst other parts of the charge, such as a summary of the evidence and counsel’s closing submissions, will be unique to each case and will need to be written by the judge, the standard aspects of the law, which must be included, will be automatically included in the draft charge, based on the answers initially provided by the judge.

There is some concern that mistakes will be made when we delegate the creation of such important documents to an automated system. However, any such system is equivalent to many sophisticated online tools used by governments for the creation of common documents such as passport and visa applications, as well as taxation returns.

In the proposed court precedents a draft document is created which must ultimately be checked by a judge, to ensure it properly and accurately reflects what a particular order or charge requires before being formally endorsed or adopted.   I consider that the time saved by this system, together with the elimination of unnecessary repetition, once fully implemented and utilised, will be considerable.

5. Electronic subpoenas

Most of the documents now produced to a court registry under subpoena, are held by the addressee in an electronic form. However, in answer to a subpoena, the electronic documents need to be either printed or transferred to a USB or disc, and then sent by post or courier, to the court’s registry. This practice is most evident in relation to medical, hospital, bank and tax records. 

The CCV is currently developing a portal which will enable documents to be securely delivered to the court by an addressee, in electronic form.  The parties will then be able to inspect such documents online, whilst preserving a party’s ability to raise an objection to the production and/or inspection of such documents.

This initiative will be convenient to non-parties who  hold electronic documents and are required to answer a subpoena. It will also lead to cost savings for the parties involved, as it will eliminate the need to physically attend the court registry in order to inspect the subpoenaed documents. In the long term, it will also dramatically reduce the storage space required by a court’s registry.

5. Online tools for self represented litigants 

In most courts, the number of self-represented litigants (SRLs) is growing at a steady pace. In recognising that a  large majority of people now have access to a computer or a smart phone, it is likely that the development of online tools can  promote access to justice, and will assist SRLs, especially  at the initiation stage.

In the US, some courts offer SRLs an online questionnaire, which provides basic information (but not legal advice) about the legal process. It then asks the SRLS a series of straightforward questions, the answers of which are populated in to a precedent, which leads to the creation and filing of an initiating document. The US courts that are currently using this system have reported a reduction in the number of non-compliant writs that are being issued.

In the UAE, a court is permitting claimants in employment law cases to file with the court online, via What’sApp, through the simple uploading of the SRL’s employment contract.

Some US courts communicate with SRLs via text, with information such as reminders of hearing dates, and orders with which they are required to comply.  Some courts even send complimentary text messages to SRLs when they have complied with a court order or timetable. The courts that are currently engaging in this practice have reported a reduced number of non-attendances at court by SRLs and increased compliance with court orders. 

6. Online mediation

Another initiative in the US is the use of online mediation.  Instead of a traditional mediation where the parties attend and speak in person, the mediation takes place, with all parties communicating online, in written form, with a mediator facilitating the discussions. The mediation can take place over a set period of time, usually 14 days.

Such mediations have been used in small claim disputes, and in family law disputes relating to access and custody. As most of these cases involve SRLs, the parties can communicate at a time convenient to them, without the need to disrupt their working hours, or travel into court, and possibly face the person they are in dispute with.  These online mediations are usually offered soon after the proceedings are issued and have resulted in significant settlement rates. If a compromise is reached, the mediator is then able to arrange for the parties to sign consent orders, such that, in many cases, a court appearance is never required. 

In addition to impressive settlement rates, the US courts report that parties have responded to this initiative in a very favourable way. It is considered to have been a proactive step by the court, to offer the opportunity for the resolution of proceedings in a timely and cost-efficient way.

7. Video appearances for witnesses, solicitors and SRLs 

For the last decade, most courts have permitted video conferencing for an otherwise unavailable witness to give evidence from overseas or interstate.  In the past, video conferencing usually required a witness to attend a local courthouse or an approved facility. Significant fees were also paid to a third party provider to secure a link between the witness and the court. 

In more recent years, video conferencing has become more common and readily accessible, as most people now have access to a videolink, from their desktop, laptop, tablet or smart phone, provided they have a reliable WiFi or 4G connection. Many courts are now allowing witnesses to use such devices to give evidence, or similarly, to allow solicitors, counsel or SRLs to appear at Directions Hearings.

In the UK, when justified by the particular circumstances of the case, courts have allowed the accused to appear via videolink, from their home, for the entire duration of the trial. 
There are a range of software applications which facilitate such video conferencing, with the most advanced products enabling the live sharing of exhibits, documents, or footage with the remote witness, and for such documents to be annotated by that witness, and for the annotations to then be seen and captured by the court for tendering. 

Video conferencing can be a significant cost saver for the parties involved in litigation. Time spent travelling to court, or adjourning a case due to witness unavailability, can now be avoided, if the circumstances are such that it is appropriate for evidence to be given via video.  Further, for doctors and other health care professionals, attending court to give evidence is usually an unwanted distraction from their busy practice. For such professionals, permitting video conferencing from the convenience of their clinical rooms, is a welcome initiative by the court.

However, the use of video conferencing for a court comes with a warning. It must be managed in such a way that the remote witness does not lose sight of where they are, and who their audience is. The authority of the judge and the formality of the proceeding may be lost if the witness is looking at their smart phone, which has reduced the view of both the courtroom and the judge to the size of a thumb. When prisoners are communicating with the court via video conference, it is important that the screen in the custody facility be of a sufficient size to ensure the view they have of the court is not compromised. Equally, if a witness is to give evidence via video conference, a smart phone should be avoided. I suggest a 10” inch sized screen (such as an iPad) is required at a minimum, although a larger screen would be preferable.

8. AI assistance in registry and robots for court concierge

The registry staff at most courts often answer the same questions, asked by court users, on a daily basis:  What fees are payable, what hours is the court open, what is the status of a case?

Bots (derived from "robot") are an automated program that runs over the Internet. Bots can engage in live automated chat and are commonly now used  by phone companies, banks and airlines to answer frequently asked questions.  As AI advances exponentially, it is getting harder to decipher if the person answering online questions is a person or a bot.  There is no reason why courts could not use this technology, to answer these repeat questions – either by phone, an online chat, or via text message.  It may lead to increased responsiveness to court user requests, as it is not limited by court hours.

It is also likely that robots may be used to welcome visitors to the court.  This has been trialled by a court in Ontario, Canada. A welcome robot, which is mobile, and has a computerised smiling face, greets court users, and is available to offer basic information on hearing times, where to go, court etiquette etc. There is also an intention to offer a facility whereby court users can pay fines via this robot. 

Many people arrive at court feeling anxious and uncertain as to what is expected of them, and I accept that for some, it can be less intimidating to check in with a robot, than speak to a person behind a counter.  This innovation also enables the robot to speak a multitude of languages, and for its face to change, in order to more fairly reflect the demographics of court users. The use of such robots is not intended to eliminate personal contact with court staff, but is an alternative for those who may prefer it, or those experiencing language difficulties.

Conclusion

A recent article by Noel Eldin in Law Technology Today, raised the possibility of using Virtual Reality goggles in court, to demonstrate crime and accident scenes. It is contemplated that counsel could walk the jury through the location, and potentially see a real time re-enactment of the incident, with sights and sounds of what is claimed to have occurred. 

However, in this article, Eldin acknowledged that the justice system is slow to change. The use of VR in court rooms is perhaps an obvious example, and for that reason, I have not included such technology in my list of where we will be in five years’ time. However, the speed of change is such that I may be wrong on this. Only time will tell, but we should all be ready for it!

Technology is not coming to a court near you. It is already here, and there is no reason not to fully embrace it. By so doing, we can ensure that we are comfortable with any developments and further, that they accord and are consistent with the fundamentals of our justice system.