Justice will be served. It’ll just look a little different

Richard Susskind may have a crystal ball, legally speaking. In 2019 he published a book called Online Courts and the Future of Justice; the prophecies of which have likely been debated and discussed endlessly. While these conversations and subsequent holding of virtual trials were undoubtedly accelerated by the current pandemic, COVID-19 simply exposed an inefficient legal system. We found ourselves in a situation that forced us to change the way we operated by showing us that there is a better way to do things. It also disputed long held assumptions about eye contact, body language, and facial expressions not being effective unless experienced in-person.

But will we embrace any changes, if and when society returns to resemble what it looked like in February 2020? Or are we moving towards a Judge Dredd culture, that allocates legal power to the few, or a Mad Max civilization, which errs on the side of outlaws and lawlessness?

Few industries still rely on pomp, circumstance, and tradition. Most that do are public sector services where change comes about slowly, and usually only out of necessity. The legal profession has remained more or less the same since inception and is one of the last to embrace technology. Whilst some advancements have been made (e.g. project management software, electronic briefs, in-court exhibition software, video depositions), the fundamental way of doing things has not evolved, leading to a backlog of cases in almost every country.

Pre-lockdown, the UK had “37,000 cases waiting to be heard in the crown courts and nearly 400,000 in the queue for the magistrates’ court[i].” Some estimate that it could take 10 years to clear the backlog of the thousands of additional cases that have been added since March 2020, if they even go forward. According to Victim Commissioner Dame Vera Bairds’s annual report, we’ve already seen prosecutors being asked to take a step back on prosecuting weaker cases so as to increase conviction rates[ii]. Plus, it is likely that the substantial delays will lead to high victim and witness attrition rates.

However, some legal systems have embraced the need to innovate. According to an article in the Financial Times, UK Supreme Court cases are hearing cases via video conference, with proceedings and judgements being delivered live on their website[iii]. Whilst the US Supreme Court originally postponed all sessions scheduled in March and April, in May they started hearing oral arguments by phone, and allowed the public to listen in live.

These examples are not the exception to our new rules. Remote Courts Worldwide, a news service designed for criminal justice system workers, reports that digital solutions are being used by courts in Norway, Brazil, China[iv], India and Singapore.

Looking ahead to the fall (optimistically), Q2 2021 (more likely), or perhaps even 12 months from now (most likely), how should our legal system operate? Do the benefits of remote interactions outweigh the perceived benefits of offline and in-person exchanges?

It seems that measures that increase not only efficiency, but safety, are the no brainer ones to continue with:

Allow testimony to be given remotely if it reduces a victim’s anxiety about confronting their accused attacker, or if being in a familiar environment makes them feel secure.
Support the right of a juror to participate from home, as individual circumstances may prohibit travel.
Provide easy access to tools which help victims, witnesses, suspects, jurors and others who are not familiar with the law understand the processes and the evidence.
Conduct virtual mock jury exercises (fact or fiction[v]) to work out the kinks before going to trial (virtual or IRL).
Take advantage of access to virtual focus groups to test the impact of evidence and the power of demonstratives, to see what will hold up in court.
Use virtual communications tools, i.e. WhatsApp, SMS and webchats, along with Artificial Intelligence and Machine Learning platforms to complete time-consuming administrative tasks, so specialists can focus on what they do best.

And if Zoom backgrounds or arguing a case from your reception room makes the process feel less official, let’s build virtual courtrooms that mimic real ones. Imagine an environment which allows you to bring up case law references with a simple verbal command, seamlessly switch to pre-recorded depositions, or walk through 3D re-enactments of crime scenes.

A visual, virtual legal Alexa.

In addition to revamping the formal court system, we need to develop ways to recognize cases that may be well suited for Alternate Dispute Resolution (ADR). How can we give those practitioners greater access to cases which might benefit from their services? While the same attention needs to be given to the practicalities of Arbitration, Mediation and Conciliation, these processes have the added advantages of resolving the matter at hand in a cheaper and faster manner.

And if more complex cases do require in-person interactions, let’s rethink the courtroom design, to ensure social distancing and limit the transmission of any disease.

Just like the Medical Profession, the Legal and Criminal Justice Professions will always need a level of human input. But we need to be smart about what that looks like. We shouldn’t simply play to our egos by ensuring we are front and centre, as that often leads to us just getting in our own way. But we also shouldn’t ignore how to make the system better, just because we are worried of being phased out.

Without embracing that changes are needed to keep up with a different world, we’re taking away the right for someone to have their day in court. This will lead to a further breakdown of the system.

We need to pivot now and have not only been given a once in a century opportunity to do so, but the means – from the technology to the mindset to the expectation – to make it happen.

[i] https://www.bbc.co.uk/news/uk-53238163#

[ii] https://www.expressandstar.com/news/uk-news/2020/07/14/rape-being-decriminalised-due-to-lack-of-prosecutions-commissioner-warns/

[iii] https://www.ft.com/content/fb955fb0-8f79-11ea-bc44-dbf6756c871a

[iv] https://www.law.ox.ac.uk/business-law-blog/blog/2020/03/virtual-justice-time-covid-19

[v] https://www.suanningle.com/number-11-of-20-for-20-practice-development/