The Courtroom Post Covid-19

2022 Australian Bar Association National Conference, Melbourne

How do we most effectively integrate technology into what is for so many people an intensely human engagement of conflict resolution?

Introduction

This speech incorporates the essence of comments made by me at the conference, in particular with the benefit of listening to Professor Susskind.

I do not propose to reply to Professor Susskind in any substantial way. I am ill-equipped for that task. I will say however that his view that COVID-19 has interrupted and stalled true innovation with technology to expand access to justice beyond the model and paradigm of the current court system, even as it has adapted and can adopt technology, is correct. At the Federal Court before 2020 we were for some time had been considering and investigating use of AI, mobile apps and other features that would fall into Professor Susskind’s categories of extended court service and “front ends”. There is, as Professor Susskind points out in his writing, enormous room to provide AI and technology services to enable people to understand their legal position, to obtain algorithmically worked out positions in a dispute from “big data”, and to promote dispute avoidance, rather than just efficient dispute resolution. If courts do not take a role in this it will fall to the unregulated private sector for profit and without transparency.

There should be a standing Law Reform Commission reference on the broad topic identified by Professor Susskind.

At the heart of thinking, development and technical application is the true nature of the Court system. In regard to this, Professor Susskind posits a dichotomy as to the courts: Are they a service or are they a place? With trepidation and unfeigned respect, I would suggest that this is an inadequate dichotomy perhaps brought about by use of the noun “court”.

Courts are an engagement where something happens. They are the manifestation of the state taking people and their problems and disputes seriously in a way that recognises their dignity, to resolve their dispute justly, proportionality and according to law. Courts are the engagement of just state power. The question is: What is the appropriate method of engagement from the just resolution of disputes which engenders trust and confidence in the public through engendering trust and confidence in those who engage with the administration of justice.

Thus the question of how and how far to use technology depends on these administrations. The fundamental requirement is not technical efficiency or even cost (though these are centrally important). It is access to the engagement and confidence and trust in its working and in its results.

With these comments I would urge the consideration of an integrated national focus by law reform commissions, courts and government on developing features of the administration of justice nationally to widen its accessibility, focused otherwise than on the (absolutely necessary) role of courts to resolve crystallised disputes and controversies.

What I will focus on below is the use of on-line technology in the future operation of the courts in their dispute resolution functions. These are my views. Others in the Federal Court and other courts may have different views. It will be for those courts in the future to work out their own positions. My time is limited.

The challenges of March 2020

What follows are views and thoughts devised from my and the Federal Court’s experience over the last two years. Few are fully formed and clear. I explain why below. But perhaps I can encapsulate four groups of propositions which I think encapsulate thinking about how we use on-line technology in the future.

First, the fundamental questions about how to use technology are its effects on litigants and the effect on trust and confidence in the administration of justice. How that confidence and trust is maintained may call forth different considerations over time as society develops and changes.

Secondly, general propositions and solutions from abstract thinking are unlikely to be ultimately useful without a grounding in experiential reality. This has been, and will be, a lived experience. We are not faced with a binary choice: technology or no technology.

Thirdly, we should be careful about making decisions informed by the weariness and depression that the pandemic has caused.

Fourthly, we should approach discussions with an open mind armed with as much quantitative and qualitative data as possible, recognising that technology affects different people differently, and most important is the lived experience and the situational suitability or unsuitability of the technology according to the circumstances.

The challenge to the Federal Court was to keep an overwhelming civil (not criminal) court that is continental in scope with registries, judges and litigants in all States and Territories and a largely (but not solely) Full Court appellate system functioning. It could not have been done without a skilled IT department and system that was provided by the Federal Court not only to its own judges but to the Family Court and Federal Circuit Court. The Federal Court since 2015/2016 has been charged with the responsibility of, in effect, providing all corporate services and registry infrastructure, including IT to the three (now two) Commonwealth Courts and the National Native Title Tribunal. It was also achieved by the dedication and enthusiasm of the judges, of their staffs, and of all the registry staff. It was a monumental effort for which I thank them.

To continue the proper functions of the Federal Court during the lockdown of each State and Territory, various technologies were adopted by courts to allow hearings and dispute resolutions to be conducted on-line. During my address I will refer to ‘on-line hearings’ or ‘on-line courtrooms’. It is necessary at the outset that I define what I mean by this. I am referring to matters being heard, in real-time, on an on-line platform such as Microsoft Teams or live streaming and not to the use of artificial intelligence running courtrooms, that is a discussion for another day. The use of technology in all aspects of the court process have taught us valuable lessons about the future of technology in the courtroom, the differential acceptance of technology and the true questions that need to be asked to determine the appropriateness of replacing physical courtrooms with on-line courtrooms.

Neither the law nor the court process is all about abstractions, systems, rules and definitions. At the heart of the law, the courtroom and court process is the human element shaped by human experience. It is dangerous to analyse the successful uptake of technology in the abstract and draw one’s conclusions from such analysis alone. There is much work and thinking that will need to be done to evaluate and assess what would be the most appropriate court or dispute resolution structure to adopt for the future. In the interim, it is promising to observe the open-mindedness of the profession and parties to run matters (in whole or in part) using on-line platforms and services particularly in the short amount of time that was given to facilitate such arrangements. The success of technology and its adaptation in the courtroom is, however, to be measured by the experiences of the people involved, particularly those who rely on the court and those whose liberties are at risk: it is the lived experiences of those people which require the greatest attention. The decisions about technology in the courtroom will be a consequence of careful thought and shared and lived experience in which both the advantages and disadvantages of technology are taken into account to ascertain how it will be incorporated.

Courts are human institutions

I have, on a number of occasions, referred to the courts as fundamentally human and dynamic institutions. It is important for me to reiterate the significance of these two key characteristics.

Cardozo’s great trilogy, The Nature of the Judicial Process (1921), The Growth of the Law (1924), and The Paradoxes of Legal Science (1928) embodies a legal theory built on the law as both a human and social reality, structured by rules and principles, built on clarity of expression, but never being disengaged from the human and social relations it protects and serves. Courts involve human reasoning and emotion, and involve the resolution of social conflict. The purpose of courts is the public and independent exercise of a protective governmental power: the judicial power. It is the public exercise of this power that garners confidence in the court system as the essence of the exercise of this power in the display of equality before the law, impartiality, the dignity of the individual, a right to be heard, fairness and, as far as possible within reasonable constraints, the correct determination of issues in dispute. These attributes are immensely important to society, not only to be applied but also be seen to be applied. That accountability is critical and must be at the forefront of considering how on-line courtrooms may exist and be accepted by the community. Courts are the manifestation of the state taking the citizens and their problems seriously. They are not just a service. They embody the irreducible societal requirement of the provision of justice and of protection from unlawful power.

The courts are also dynamic. As the institution upholding the law and affecting liberty, it is fundamental that courts are not static, but dynamic and always evolving, reflecting society as a whole. Change in a human organisation is brought about by internal and external environments. It is evident that COVID-19 as an external force has changed not only how courts operate but the methods of how we interact with one another and the acceptability of such interactions. The pandemic has changed and will continue to change how technology is integrated into the courtroom and how this may impact the way people interact with the court, the judiciary and the law. Cardozo described morality as changing silently over time^[1] and so will the acceptance of previously unaccepted mechanisms, like on-line hearings, change over time. It is our responsibility to ensure that these changing factors are reflected in our court system and the appropriate technologies are utilised to reflect societal attitudes and demands.

Analysis in the abstract

We must be cautious of making decisions based on a high level analysis of technology in courtroom. What can be done does not necessarily direct one to what should be done. That is, only looking at what can be achieved i.e. hearings being conducted on-line, without considering what it means for the legitimacy of the system and the human experience of the litigants and their lawyers. Before we embark on an upheaval of the court model, it is necessary to collate information and feedback about the technology used. As many would appreciate, there was very little time during the implementation of on-line hearing platforms critically to assess and monitor the ‘success’ of on-line court hearings. I use ‘success’ here liberally as being measured subjectively and requiring an understanding of not only the take-up rate but more importantly the user experience.

What can be done was demonstrated in 2020. Most courts excelled. I will only speak of the Federal Court because that was my experience. Within a matter of days from the first lockdown in mid-March 2020, cases were being conducted on-line from multiple locations: offices, homes and court-facilities. Some were “hard swearing” cases, others were complex patent and commercial cases with lay and expert witnesses located around the world. The energy, determination and skill of the IT staff, the judges, the judges’ staffs, the practitioners and the clients was remarkable. It was done, because it could be done and because it had to be done. It involved, however, real compromises in important aspects of the process, mostly made up for by a willingness of all those involved not to see it fail.

In many respects the experience was second rate by comparison to normality, but there was no alternative. But it gave insight into what was possible. With imaginative insight, a willingness to co-operate and a shared recognition of the possibility to reduce costs of litigation and increase its accessibility new possibilities were opened. This is particularly so with litigation involving international parties and witnesses. That said, it would be a mistake to analyse the success or effectiveness of technology solely by considering how well technology has been able to be integrated in the court under these straightened circumstances. Often to measure the success of a service, one would analyse output data and display that data in a measurable metric, for example, X amount of Courts in Sydney have been able to accommodate Y number of on-line court hearings. To approach it thus is to fail to consider the ‘human element’ and the human influence on the data. How do litigants find the use of technology? Do they consider that technology is able to provide them with the necessary environment to foster trust and confidence in what is happening and in the system? The proper functioning of the courts is not measured by its ability to adopt technology into the work and everyday function, it is the evaluation of the overall performance of the institution tested by the practical feasible way of the exercise of public power fairly. It requires the maintenance of an environment that emphasises the human, the fair and the just and the confidence of the public in such.

Can we foster trust and confidence through technology?

So how do we analyse technology by reference to the human experience? We first need to establish what it is we are asking of people who come to court and present an aspect of their life to the judges: trust and confidence. We are asking the public to trust the court in our handling of their materials and to trust the judges in their analysis of materials and interpretation of legislation. We also ask parties to have confidence: confidence that justice will be done and seen to be done. These are two fundamental values at the very core of the function of courts which must remain in any type of court experience, be it physical or on-line.

For some time now, courts and the Federal Court in particular, have and has embraced the uptake of technology either through back end processes such as digital filing and stamping of documents or front end processes such as the use of audio-visual link and eCourtroom for case management activities. As summarised by Profession Susskind, when the pandemic required the closure of physical courtrooms, the uptake of various technologies was accelerated in the justice system. Hearings, case managements, mediations and many previously physical functions were conducted exclusively on-line using Microsoft Teams, WebEx, Zoom and live streaming services. These were accessible by audio-visual link or audio only and members of the public were able to participate, as they would have in a physical courtroom. The benefits of matters being conducted on-line are large. The support it gives to regional and interstate clients and lawyers cannot be understated and its ability to maintain open justice allows it to function as if it were a physical courtroom. It can widen the available pool of counsel and create a truly national bar where clients can choose from counsel all around the country to argue their case. It also reduces the costs and hours associated with travelling to a physical courtroom, allows greater access as parties and members of the public who can join hearings from different locations and establishes that physical proximity is not always necessary for the delivery of oral argument. To many this should be the way of the future and indeed Professor Susskind noted that many barristers and solicitors are eager to take this view.

For many this was a challenge for a variety of reasons including a lack of internet connection or stable internet connection, the unfamiliarity of on-line videoconferencing platforms and/or a fear or mistrust of technology. In the Federal Court, the unrepresented migration litigant, for instance, was extremely difficult to cater for. We need to afford particular attention to the person who is disadvantaged by technology. We also need to consider how on-line court proceedings can be made available to members of the community who may not have the ability easily to operate technology. This applies to both litigants and counsel.

Also, questions should be asked to the person who will suffer the effects of a decision, how they feel about the platform that has been used to exercise power and whether they feel the power was exercised fairly. The difficulty lies not in the delivery of the decision (as this only requires the judge to read the sentence) but in the ability of the judge or, in criminal trials, the jury, to deliver the decision with confidence that the person who will lose, can feel that the decision was made carefully, thoughtfully and fairly. The delivery of the decision must allow the party to see the decision maker and feel that the decision is made, from that person, in their position, and to the party who will lose directly without obstructions. A realistic environment of solemnity and formality is required to emphasise the gravity of the decision to be made. This is particularly so in circumstances where a penal sentence may apply or where a person’s liberty is being restricted. It is vital that the parties involved do not feel disconnected from the system.

We need to consider the thoughts and experiences of parties (especially those who lose) and consider whether the use of technology hinders or improves their ability to present their case and the relative ease of presenting their case.

As I highlighted earlier, public trust and confidence are foundational to our justice system and is maintained when judicial proceedings employing technology are conducted in a manner that does not alter the core functions of judges, juries, witnesses and lawyers. The ability to replicate interactions in a physical courtroom require technology to create an environment of reliability, authenticity and its ability to satisfy peoples’ legitimate sense of demand for the court to take them seriously and to protect them. This could be captured in many ways such as having all parties appear by video, the retention of court formalities in address and attire and the avoidance of disruptions caused by unstable internet connection, poor reception, background noise and avoidable distractions. However, this may not be a simple task as the solemnity and formality of a physical courtroom differentiates a court from other institutions and forms part of the impression of legitimacy and authority. This is not institutional pomposity or self-importance. It is part of the manifestation of people and their problems being taken seriously by the state. Could on-line hearings create this sense of formality when one dials in from their lounge room or their car? Or should the better question be: Have we as a society moved away from defining courts and its authority by these physical attributes? I have seen that, in some ways, the option to appear on-line allows for better performance by some parties and counsel as it can be a less intimidating and less confrontational environment and this may allow for more open and frank interactions. Other counsel lost the occasion and the presence which their advocacy employed. I believe a balance should be struck and we must always strive for an environment that fosters confidence, humanity and flexibility.

The hesitancy of many to maintain on-line hearings can be understood. There are powerful reasons why the physical presence in court can be seen as critical.

The trial involving the giving of evidence and the presentation of documentary evidence is better effected, usually, by the contained physical presence of all in one place. But one cannot be definitive or categorical. Any long or short trial has aspects that can be done remotely, sometimes asymmetrically. Such may lessen cost and widen the ability of a party or a lawyer to participate.

Appeals may provide a greater capacity to employ remote technology. Again sweeping generalisations are fraught. But I have seen some advocates thrive in the less intimidating venue of on-line hearings. Further demanding that parties travel interstate to attend a court hearing when they want an on-line hearing can rarely be justified.

Case management and interlocutory hearings are also more apt for on-line hearing and a consequent reduction in costs.

Much depends on the nature of the case, the people (lawyers and clients) involved and the task to be undertaken.

We need to be open-minded, honest and thoughtful about the fundamental operation of a sphere that should be available to all. It is not about what suits judges or lawyers. It is about the litigants and the due administration of justice for the public that the profession and the courts serve.

Reply to Professor Susskind’s article ‘The Future of the courts’

Professor Susskind’s writings are prolific and profound. His speech yesterday was illuminating and full of wisdom for the consideration of the future. I will restrict my comments to giving a few additional thoughts on his recent article^[2]. Professor Susskind summarised eloquently the adoption of technology by our court systems and the various types of remote hearings that became available to litigants and the public when the pandemic resulted in closures of the physical courtrooms. He noted, with great enthusiasm, which I agree, that we are at the “foothills of transformation in court services”^[3]. To understand accurately what has been achieved and what has not been achieved by technology, Professor Susskind has suggested the need to capture more data about live cases that have been concluded remotely and make that data available to social scientists to dispassionately evaluate. I agree. Quantitative and importantly qualitative feedback about the use of technology need to be collected and the involvement of the Law Society and Bar Association will be vital in collating this information from the profession. The Law Society of NSW recently conducted an online survey on the post-COVID justice system and outlined some of the feedback and comments they received from 1,483 of their members on the efficiencies of technology used in the justice system. There are recognised efficiencies and I spoke about them earlier but in particular, lawyers have found the use of technology to be a time and cost effective exercise and in some ways improved access to justice. However, fairness was the primary concern. A particular quote encapsulates my apprehension with a strict on-line hearing system:

“AVL appearances of accused, specifically vulnerable accused, can significantly undermine their effective and fair participation in proceedings involving the removal of their liberty.”

Fairness requires the evaluation of the most appropriate technology to utilise to ensure that a realistic court environment is preserved. This requires continuous analysis of what works and what does not work on a case by case basis.

Purely as a service, technology has been immensely helpful in continuing the courts’ operation. To have the capacity to facilitate videoconferences the courtrooms became more accessible financially and geographically. However, as I have said courts are not mere service providers. Courts exercise governmental power in the exercise of judicial power. This is built on fostering trust and confidence in the community. This may only exist if the exercise of the court’s power is exercised appropriately and technology is incorporated to assist with that exercise of the power.

Now I use the phrase ‘assist’ broadly and in acknowledgment of Profession Susskind’s argument that the role of technology is not to support and enhance our old ways of working but to overhaul and often replace our practices of the past. It is not my intention to speak in a manner that would suggest the court is antiquated or ‘stuck’ in the past. Fundamental institutional overhaul should be preceded by careful holistic contemplation – by the Law Reform Commissions in conjunction with courts and government. How we use digital information and on-line communication in a restructured less or non-adversarial dispute resolution model is a very large question: one that is beyond me as a mere foreman of the present tillers in the field in the present court system. However, it will be important in any model that any approach ensures technology is used as a tool for the administration of justice – for which justice must be done and seen to be done. Courts, and any dispute resolution model, depend and depends on public confidence and trust. We must understand experiences and impacts of any technology and on-line court hearings and provide options that are most suited to the individual cases.

Concluding remarks

Valuable lessons have been learnt for the future but, for now, an important question is how we use this knowledge to successfully administer the proper functions of the court for the future. While we have been able to operate on-line for the past two years, it is important when planning for the long term we consider how we integrate technology to our courtrooms to ensure that technology does not become a barrier to justice and that it places the human character of the institution at the centre of consideration. There have been some calls for digitisation that strike me as potentially overambitious; blinded by what can be achieved rather than what is reasonable and usable. For example, wholly on-line courts, at all stages of the pre-court and court process for all matters. As Professor Susskind noted, there are certain types of disputes which emerge as well suited to remote handling including procedural and interlocutory hearings, routine case management or directions hearings. Yet, there are also cases which may not be suited to wholly on-line hearings. This includes cases involving vulnerable client groups who may face difficulties accessing and utilising devices necessary to participate in on-line hearings.

We also need to appreciate the user-experience and be cognisant of the impacts of technology.

While there is great potential to use technology in courts, one must balance enthusiasm for a wholly-technological operation with the recognition that the courts are faced with cases of varying natures: They vary in terms of appropriateness for certain technologies, and require varying levels of flexibility. This is not to say that the push to digitisation is to be criticised, merely that it needs to be balanced and adopted at a rate where parties, particularly the person who may lose, may accept it as an alternative forum that ensures justice will still be done. How technology is incorporated to allow us to interact with one other must be carefully considered so that the execution of the protective judicial power can be best achieved.

Overall, technology provided convenience and accessibility in a time of restricted physical movement and human interaction. As we emerge into a post-pandemic world, we should consider what would be sustainable and acceptable options for resolving disputes. It would be irrational for courts to revert to pre-pandemic practices of physical hearings for all and any aspect of the process involved, without a critical and honest assessment of the best ways to meet the needs of the litigants and society. This is so given it has been shown that matters may be heard on-line productively. This is a conversation that must continue. The pandemic has given us an insight into what can be done. That should be used to assess what should be done: something quite different. This conversation is important. It should not be affected by some of the emotion and damage that the pandemic and its associated social and human restrictions have caused. There is a weariness, indeed depression abroad: something entirely understandable. The weariness and depression were not caused by on-line hearings, but on-line hearings were held in this environment of depression and economic wreckage for many.

On-line hearings may have removed the spark of humanity in some advocacy; but they have encouraged some to try, free of the intimidation of court; they have made regional practices more feasible; they have made a truly national bar feasible in some areas, they have, for some, made managing a practice and life easier.

As Oliver Wendell Holmes once said (in another context): General propositions do not decide concrete cases. The decision will depend on a judgement or intuition more subtle than any articulate major premise.

I would like to conclude by thanking the profession – the Bar and solicitors for their efforts in the last two years. They were part of the maintenance of the administration of justice in Australia in trying times: an achievement not to be underestimated or minimised in significance.