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From Theory to Practice Software Models and Evidence

for the Online Court


Introduction
In this paper I look at some of the ways in which technology may be applied to
proposals for on-line Courts.
The proposals by Richard Susskind1, the JUSTICE paper and Sir Michael Briggs are
based upon the availability of technical solutions to fulfil the promise inherent in
the new models for resolving disputes. I emphasise that in using that phrase I
envisage, as did Professor Susskind, the dispute resolution model to function
within the established Court process rather than as a stand alone alternative to
the Court process.
A consideration of the deployment of technology within the Court process first
requires a recognition of the way in which technology can reflect or replace
current processes. The OC proposals that have been put forward suggest
significant process change but represent high level strategy. What I am about to
consider is a slightly more practical overview of some of the ways in which
technology may be deployed. In addition there are issues surrounding the
handling of digital evidence which will require consideration.

We Shape Our Tools or the Rules Shape the Tools?2


The first question is whether the technology defines the Rules of procedure or
whether the Rules of procedure define the technology. In New Zealand in the
years leading up to 2011 there was a significant project the goal of which was to
have, as much as one can have, a paperless court in criminal proceedings.
Naturally there would be instances where paper records would have to be used
such as arrest warrants or custody warrants or the like. But the filing of charges
or pre-sentence reports or submissions by counsel would all be done in digital
format utilising online system. A system of menu based options and choices
would be provided to the judge so that dispositions could be captured with the
click of the mouse.
1 Civil Justice Council Online Dispute Resolution for Low Value Civil Claims
February 2015 https://www.judiciary.gov.uk/wp-content/uploads/2015/02/OnlineDispute-Resolution-Final-Web-Version1.pdf (last accessed 14 March 2016)
(Susskind)
2 From the aphorism attributed to Marshall McLuhan We become what we
behold. We shape out tools and thereafter our tools shape us The quote was
actually from Father John Culkin, SJ, a Professor of Communication at Fordham
University in New York and friend of McLuhan. Culkin, J.M. (1967, March 18). A
schoolmans guide to Marshall McLuhan. Saturday Review, pp. 51-53, 71-72. The
idea presented in the quote is entirely consistent with McLuhans thinking on
technology in general.
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But the system suffered from a number of deficiencies and problems which led to
its abandonment. The only problem was that the legislation with which it was
supposed to work in tandem the Criminal Procedure Act 2011 had been
enacted and was in place. But that seemed to make little difference because
although a paperless court was envisaged, it worked just as well, but rather more
messily, with paper. And the reason for that was that what the system was
designed to do was electronically imitate paper based procedures. The only
innovation, if it could be said to be an innovation was an absence of paper. The
process was entirely linear, the objectives being to either get to disposition by
trial or by resolution with a guilty plea. The process provided for limited judicial
intervention by way of case management but fundamentally nothing changed
from a procedural perspective.

Innovation or Imitation
So the first issue is whether or not the technology is to be used imitatively or
innovatively. I argue, as may be expected, for the latter because digital systems
and software present enormous opportunities for better more agile and diverse
ways of assembling and processing information that was available in the paper
paradigm. The way in which digital system can enhance the ability of the litigant
to gather together the necessary information and submit it to the Court can be of
much greater benefit to all parties in terms of information in and information in
reply. Furthermore, competently deployed systems can assist, advise and
contextualise a potential claim as it is being developed and filed in the Court so
that the litigant need not be represented by Counsel. One of the features of the
OC as described by the three reports to which I have made reference emphasise
the way in which that system can be used by self-represented litigants.

Established Systems
The Susskind Reports observes that there are already standard ODR platforms
available which can be licensed and deployed or alternatively a bespoke system
could be developed. Examples of ODR systems operating in other areas and in
other Courts are given.3
One is the Netherlands Rechtjwizer solution which is used for separation disputes
and the Civil Resolution Tribunal in British Columbia, Canada which is shortly to
go live.4 I discuss the Rechtwijzer system below in the context of Tier Two and the
case assessment process.

Tier One
For example, in the Susskind model, Tier One is designed to :
help users with grievances to evaluate their problems, that is, to
categorize their difficulties, and understand both their entitlements and
the options available to them. This will be a form of information and
3 Susskind Part 4 paras 4.1 4.12.
4 http://www.civilresolutionbc.ca/ (last accessed 18 March 2016)
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diagnostic service and will be available at no cost to court users. This part
of HMOC will be shared with or will work alongside the many other
valuable online legal services that are currently available to help users
with their legal problems. For example, systems developed by charitable
bodies or provided by law firms on a pro bono basis will either sit within
HMOC or be linked to the service. The broad idea of online evaluation is
that the first port of call for users should be a suite of online systems that
guide users who think they may have a problem. 5
The Canadian approach presents the user with the Solution Explorer which is a
tool designed to diagnose the problem, provides information from experts, and
then presents the user with options, some of which are self help or which result
in a proceeding before the Civil Dispute Tribunal in which a triage process is
employed.. The Solution Explorer utilises expert systems technology. It also is a
system that is in development and becomes smarter with greater use a
machine learning solution.
Another alternative is to build the solution explorer\triage process into the initial
interaction with the Court at the commencement of proceedings. An earlier
evaluation is probably preferable but the model suggested may achieve a similar
outcome. As well as being a Tier one solution what I propose is an example of an
innovative rather than an imitative approach.
E-Filing and iFiling
From a general point of view what could a prospective litigant expect. From an
imitative point of view he or she would be presented with an e-filing situation
where a standard form document comprising a number of fields which would
need to be completed would be presented and the information so gathered
would be assembled into what would be immediately recognised as a statement
of claim.6
The innovative approach would be to introduce an entirely different way of
compiling the information necessary to inform everyone involved of the nature of
the dispute but at the same time provide feedback to a potential claimant about
the nature and quality of the information required and whether, on the basis of

5 Susskind Para 6.2


6 For an example of the type of form which could easily have been adapted to a
computer based system see District Court Rules 2009 (SR 2009/257) R. 2.10 Form 2
http://www.legislation.govt.nz/regulation/public/2009/0257/latest/DLM2300900.html?
search=ad_regulation__District+Court+Rules_2009___25_an%40bn%40rc%40dn%40bgov
%40bloc%40bpri%40bmem%40rpub%40rimp_rc%40ainf%40anif%40bcur
%40rrev_a_aw_se&p=1#DLM2300900 (last accessed 14 March 2016). These forms were
designed to be completed easily by litigants in person.For a commercial commentary on
ifiling see ifiling or efiling: What are the Differences and Why Its Important for Your
Court 9 February 2016 http://info.turbocourt.com/i-filing-vs-e-filing/ (last accessed 10
April 2016)

the information provided, there may be difficulties with the claim. This would
fulfil the triage role inherent in Tier 1.
Thus the innovative solution required is not e-filing but rather i-filing. How
does this differ. E-filing has many variations and levels of technical functionality,
some of which actually may negatively impact court efficiency. In some
instances, e-filing is merely basic email functionality with attachments, (PDF
forms, supporting documents, etc). Although this may reduce the filers
courthouse trips, e-filing alone is limited technology that does little to improve
court case processing efficiency.
I-filing, on the other hand, uses intelligent, interactive, interviews (thus iFiling)
and XML data exchanges to create a new court filing model. The heart of i-Filing
lies in its interactive intelligent technology designed to guide filers through a
series of easy-to-understand questions online and offers virtual self-help online
along the way.
Each question builds upon the last, creating a customized pathway based on that
filers unique case details. Each answer the filer provides is used to automatically
populate all appropriate fields. The iFiling model has a number of unique
attributes including automatic completion of court forms, embedded quality
control the identifies errors and assists filers correct them before filing along with
providing assistance in the form of identification of the applicable ruleset along
with aspects of the type of evidential threshold that should be met. In this way
the triaging process can commence even before the finalised information has
been filed. Once the necessary information has been provided and the party
wishes to file, electronic delivery takes place and is allocated court staff work
queues for review/acceptance, and creation of XML data that integrates with
other or associated case management systems.
The iFiling process can be compared to an online Q & A interview. Questions that
appear onscreen are customized based on individual facts of their case. iFiling
asks simple questions, filers respond providing details and if necessary other
documentary or electronic information and that information is used to prepare all
necessary forms for the filer. At all times there is an ongoing and updated
assessment of the case, communicated to the filer, as part of the triaging
process.
Inclusiveness demands that multi-lingual support be available and this would be
an aspect of what Sir Michael Briggs refers to as the Assisted Digital Service.
Although there is a debate about what this service should include and its scope I
see Early Case Assessment falling within the parameters of ADS and the triaging
that necessarily is a part of Tier One
This process aligns with the Susskind\Briggs model in that it allows and
empowers inexperienced unrepresented parties to prepare and submit remotely
100% error free cases online. The user friendly aspects of the iFiling model are
that it is presented in an easy-to-use interface, it uses plain language without
complex legal jargon, there is no need for prior legal experience, it is intuitive
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help related at every stage and accommodates limited literacy and computer
skills.
The advantage over e-filing in this regard is that with pre-designed legal forms
that contain jargon or traditional legal terms and are electronically imitative of a
paper based regime increase the chance for error which may stall the process or
alternatively lead to a rejection of the documents which is time consuming and
frustrating for the filer.
The triaging process is built in to the software in that it sets up the requirements
and expectations arising from the law that will allow a step by step evaluation of
a case. The user can cease the process at any time if it transpires that there is an
evidential or legal insufficiency which would render any further progress along
the case track as futile. At the same time, should the party wish to proceed to
filing the papers, an opportunity would be presented for the party to indicate
possible resolution scenarios. This information would be confidential as between
the case officer and the party in question.
A very simple example of early triaging may be found at the Ohio Board of Tax
Appeals site. Three sets of questions Is it worth Appealing Costs and
Benefits Do I have a Strong Case and What Are My Appeal Steps allow a
potential appellant to carry out a guided evaluation of his or her case. 7
The iFiling approach, and indeed any e-filing model may operate on the basis
that the place of filing does not matter. Documents will be filed on-line and be
held at a central location accessible to those involved in the case along with case
managers and adjudicators as the case may be. The limited access model is
already available in the Caselines suite.
Management of the case, at least from a judicial perspective could be done
through E-Working software which will be described below.

Tier One and Two - Rechtwijzer


What I have described is a software model for the initial processes as a part of
Tier 1 in the Susskind\Briggs model. But as part and parcel of this is the process
of online mediation or negotiation. There is an existing model for this in the
Netherlands the Rechtwijzer. The model developed from eBays resolution
center and takes Online Dispute resolution (ODR) further. The platform is very
people oriented helping participants get fair and sustainable results by making
sure they use the tools, information and time they need for this. The
development of interests and ideas for solutions means that participants stay in
control and take responsibility for the process and its outcome.
The way in which the Rechtwijzer model is presented emphasises the importance
of people in the process. The design, flow and content of the interface follows the
7 Ohio Board of Tax Appeals Online Appeal Guide https://ohiobta.modria.com/resources/ohio-bta-diagnosis/strongcase.html (last accessed 15
March 2016)
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behaviour, justice needs, and emotions of people looking for sustainable


outcomes. The Rechtwijzer illustrates the joint problem solving approach in a
separation and custody case, steeping through the process in a user friendly and
conciliatory manner.8
The Rechtwijzer platform is software-as-a-service (SaaS). Legal aid organisations,
courts, legal expenses insurers, and other partners to the consortium, advise on
the evolution of the platform, its features and its content. HiiL and Modria
guarantee all hosting, maintenance and support issues, as well as ongoing user
testing and platform updating. In this way, each consortium partner focuses on
delivering what they can deliver best.
The first Rechtwijzer implementation was launched at end of 2014. It currently
supports people with divorce-related issues in The Netherlands. An English
version of this module was scheduled to go live in British Columbia and England
in the course of 2015. Additionally, a landlord-tenant module and an employment
module went live in The Netherlands in the second half of 2015. 9
Rechtwijzer involves a change in mindset from an adversarial dispute to a
problem to be solved. This cultural change was the subject of a speech by Sir
Ernest Ryder10 in which he said, within the context of the Social Entitlement
Chamber which deals with appeals against welfare decisions, the following:
All participants, the appellant, the respondent Government department,
which in this case is the Department of Work and Pensions, and the
tribunal judge, are able to iterate and comment upon the basic case
papers online, over a reasonable window of time, so that the issues in
dispute can be clarified and explored. There is no need for all the parties
to be together in a court or building at the same time. There is no single
trial or hearing in the traditional sense. Our new approach is similar to that
already used in other jurisdictions, where the trial process is an iterative
one that stretches over a number of stages that are linked together. In our
model, however, we will not need those stages to take place in separate
hearings or indeed, unless it is necessary, any physical, face to face
8 For a presentation and explanation of the process in a separation and custody
case see https://docs.google.com/presentation/d/1hw9OBmvoq0t9zVs9qnj8twkJq3bhHBWhgwr6jdtRkQ/embed?
start=false&loop=false&delayms=3000&slide=id.p49 (last accessed 15 March
2016)
9 Rechtwijzer 2.0: Technology that puts justice in your hands
http://www.hiil.org/project/rechtwijzer (last accessed 15 March 2016)
10 Sir Ernest Ryder The Modernisation of Access to Justice in Times of Austerity
5th Annual Ryder Lecture 3 March 2016 https://www.judiciary.gov.uk/wpcontent/uploads/2016/03/20160303-ryder-lecture2.pdf (last accessed 15 March
2016)
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hearing at all. We will have a single, digital hearing that is continuous over
an extended period of time.
In this model, similar to the second tier in the Susskind\Briggs approach the
judge or adjudicator takes an inquisitorial and problem solving approach, guiding
the parties to articulate and understand their respective positions and identify
areas of agreement, possible agreement and areas which, initially seem to be
unable to be resolved. This process differs from the Rechtwijzer in that, as
envisaged by Sir Ernest, the judge is ready to assume his role qua judge at an
appropriate time. The Rechtwijzer approach is software based with the option for
adjudicator intervention to engage in problem solving should the need arise. In
Sir Ernests approach once it becomes apparent that a hearing is required
technology could facilitate that in that the hearing could be a virtual one.
Early Neutral Evaluation
Another way of viewing the Tier 2 process is by the deployment of Early Neutral
Evaluation Processes (ENE). This involves a consideration of the matter by a
neutral party having respected credentials for the purpose of obtaining an oral or
written evaluation about the parties' positions. The evaluation may be binding or
non-binding. Early neutral evaluation is often required when the dispute involves
technical or factual issues that lend themselves to expert evaluation. In England
ENE is used in the family justice system where it is known as Family Dispute
Resolution as well as in the Commercial Court, the Admiralty Court and the
Technology and Construction Court as well as in the Chancery Division. The
trusted neutral party may be a trained Registrar, case officer or part-time fee
paid judges. In so far as it promotes settlement, it secures a benefit to the
parties through early resolution of their dispute. It equally enables the more
efficient use of judicial resources, by enabling them to be concentrated on those
claims that genuinely cannot be resolved consensually. And where the claim
doesnt settle, it facilitates better use of both court and party resources,
promoting better case management by enabling the parties to narrow the issues
in dispute.
Sir Michael Briggs suggests, provisionally, that simple telephone mediation
model is likely to be a better starting point than ENE for Case Officers to conduct
during Tier 2 of the OC process.11 A contrary position is taken by the Justice
Report. Sir Michaels proposition is based upon a carefully staged development
coupled with past experience. Mediation has had a better track record over the
years and is likely to be quicker, cheaper and to make less demands on the Case
Officer by way of legal qualifications and experience. Furthermore, the court user
to think that the Case Officers opinion of the merits of the case carried the
weight of someone on the same level as the judge who would otherwise decide
it.
At the Tier 2 level it becomes apparent that a different suite of software tools are
required. The emphasis must be upon allowing the parties to interact to arrive at
11 Briggs para 7.26
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a solution assisted by a neutral third party using either an ENE approach or a


close involvement in the process, bringing to bear an inquisitorial approach to
identify points of agreement and live issues in dispute. The software model is one
that will allow interactivity and collaboration including real time on-line chat
functionality with provision for private caucusing if necessary.

Tier Three and Judicial Working


To have a Court hearing is the least desirable outcome in the Susskind\Briggs
model but there will be occasions where this will be necessary. The expectation is
that this will be online in that the hearing will not take place at a Courthouse. The
judge may determine which is the most appropriate way of dealing with the case
either by telephony, video-conferencing or in person.
Resolution on the papers is also available and is contemplated in the Susskind
Report.12 To this end a facility to enable an on the papers consideration in the
digital paradigm should be utilised. In New Zealand this is achieved by the use of
a platform known as E-Working. It has the advantage of being designed by
Judges (or a Judge in the case of the prototype) for Judges.
E-Duty and E-Working
The model that I advance for what could be called E-Working has developed from
a system known as eDuty that was developed primarily for Family Court Judges
in New Zealand.
National eDuty is a New Zealand-wide process where electronically or over-thecounter filed without notice proceedings are processed on-line and forwarded to
Family Court Duty Judges for determination. It is an online remote working tool
that will provide for on the papers decisions. The intention of National eDuty is
to create better access to urgent protection orders and other ex parte order that
can be made in the Family Court under various pieces of legislation. It enables
the efficient consideration of cases and the delivery of decisions.
It is a mixture of imitative and innovative uses of technology; imitative - in that
it utilises both electronic and hard-copy filing under existing Rules which were
designed for a paper based system; innovative in that the technology enables
one judge, located remotely, to deal with applications filed in multiple registries.
This frees up Judge time from dealing with these applications in addition to other
daily judicial duties. It centralises the process. Although New Zealand has a
population of about 4.5 million the geography of the country means resources
are spread. National eDuty means that place does not matter.
The working system operates with Outlook e-mail as the main system of
communication between the Court office and the eDuty Judge, Microsoft Word
using special tabs and macros for the creation of orders (the eDuty Dashboard)
and a PDF reader. Each tab has a number of drop down menus. It may be used in
Court or remotely on a laptop that is configured for access vis VPN or using an
external access version of Outlook with the National eDuty Visual Basic
12 Susskind para 6.4
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programming installed. The suite will work on Windows 7, 8 and 10 although the
latter two systems are not supported or sanctioned by the New Zealand MOJ
Filing may be by email with PDF documents attached or in hard copy in which
case the Court will scan the documents into pdf format. Although filings may be
at any one of a number of Courts, the nature of the case will mean that it enters
the eDuty system and is assigned a Case Officer. The Case Officer performs a
valuable triaging service in checking that the documentary materials are correct,
that any associated or similar recent proceedings on the Case Management
database are referenced and that all other procedural issues have received
compliance. The case and docuemts are then e-mailed to the eDuty Judge.
The following screenshots demonstrate the Word based tools that form part of
the eDuty suite

The National E-Duty Tab in Word and (below) the eDuty Dashboard with drop
down menu for orders

The eDuty model demonstrates what is possible in developing a method of online on the papers hearings. For in person hearing other on-line solutions are
available and it is to this issue that I shall now turn.
Tele or Video Conferencing?
Susskind suggests that the decision on the papers model may be supported by
teleconferencing facilities. It seems curious that video-conferencing was not
suggested using Skype, Facetime or other VOIP communications systems that
deploy video. Part of the answer may lie in the section dealing with future
systems where video is contemplated as part of a second generation ODR
system and where
sound and video quality is so high that users feel as though they are in
the same room as those with whom they are engaging). In crude terms,
this will be like adding a very high quality of Skype video call to the ODR
service and this will replace the telephony that will be used in the first
generation. In this way, users will have video conferences: in Tier One
(Evaluation) perhaps with advice counsellors or pro bono advisers; in Tier
Two (Facilitation), with specialists who are, for example, mediating or
offering neutral views on legal merits; and, in Tier Three (Judges), directly
with judges (in a suitably designed online environment). 13
13 Susskind para 8.4
10

AVL technology is deployed In New Zealand, utilising the provisions of the Courts
(Remote Participation Act) 2010. Courts routinely use AVL for the conduct of
criminal remands, criminal interlocutory applications, case management
conferences and evidence from witnesses remotely. One High Court Judge
observed to me that the use of AVL to take evidence is almost routine. 14
There are, of course, other forms of real-time communications technologies
that could be deployed to assist in the presentation of a case. An on-line chat
facility or instant messaging are two examples. The object of the exercise is to
put information before the adjudicator or, in the case of Tier 2, the evaluator.
There should be no exclusion of technologies simply on the basis that they have
not been deployed before.

Digital Evidence Considerations


Management of Digital Evidence is an issue that needs to be addressed by
conventional Courts and will be critical for the Online Court. For conventional
courts there is a dramatic increase in the volume of digital evidence and this will
increase with the greater use of wearable cameras, especially by law
enforcement officers. The Online Court envisages that almost all evidence will be
in digital format.
Documentary evidence could well be managed by the Caselines system which
envisages a collection of pdf files. But what of the other forms of evidence that
will be used in proceedings such as digital photos or images, video from sources
such as wearable cameras, conventional cameras, smart phones and the like?
Audio files will also need to be considered. It will be necessary to find ways of
dealing with the increase in digital evidence while planning for and developing
new capabilities.
There are a number of technological issues which need to be considered. I
summarise them as follows:
Storage decisions will have to be made about the manner of storage of digital
evidence. Should Courts invest in new hardware or adopt a Cloud solution. In
addition matters such as disaster recovery and business continuity will have to
be addressed.
Preservation how long should digital evidence be preserved, given that
appeal proceedings may take place over a lengthy period of time. Should there
be a form of active archiving which means that the digital evidence will have to
be maintained in a less immediately available state.
Centralisation or Decentralisation should there be a nationwide repository
for digital evidence or should there be localised repositories. A Cloud based
solution will render this issue of academenic interest only.
Format standardisation or Conversion - should the Court limit the type of
formats that will be acceptable. For documentary evidence the pdf format may in
14 Author discussion with Justice Raynor Asher 15 March 2016.
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most cases be the standard although there may well be cases where native file
format will be necessary, especially where metadata may be probative of an
issue. Matters such as availability of software to display the evidence, the
operating systems and various other compatibility issues will need to be
addressed. An initial view is that the tendering party should provide the
necessary software where evidence is other than in the standard format required
by the Court and should have to justify a departure from that format.
Infrastucture choices will have to be made about whether local or network
systems will be used to handle and manage digital evidence. The use of the
Cloud may well provide a more cost effective solution to the problem of
developing infrastructure in a single court or network of courts.
Chain of Custody this does not refer to the investigative chain of custody but
the way in which digital evidence, once it is before the Court needs to be secured
in such a way as to eliminate the possibility of tampering.
Preparedness this refers to the processes for receiving digital evidence, how
(in the case of video) that evidence is to be stored, played, retained and
accessed. Preparedness refers to the extent to which Courts have the
infrastructural requirements to receive digital evidence.
Access will digital evidence be treated as being filed or as an exhibit? This
status will have an impact upon whether or not it will be publicly accessible
under the Rules or statutes governing access to Court records.
Privacy digital evidence and particularly digital video may involve or portray
individuals who are not a party to the case and who have no involvement with it
other than on the periphery. Should there be policies that involve the redaction
or pixilation of information or images that may identify a non-party.
Third Party Providers it is unlikely that infrastructural or Cloud based
solutions will be provided by the Courts themselves. It will be necessary to
ensure that providers and suppliers are aware of the importance of the integrity
of digital information. This will be the case particularly where Clod providers are
involved. There will need to be careful consideration given to the contracts that
are prepared and it may be that before entering in to such contracts, model
policies should be developed.
Concluding Observations
Digital evidence is rapidly increasing. Although there may be few legal issues in
its admissibility, the way in which it is handled by the Court will require careful
consideration. New policies and systems will have to be developed. Digital
evidence is not paper based evidence. The qualities of digital information
demand that care by employed in developing policies and systems that maintain
the integrity of that evidence both for the first instance hearing and for any
appellate proceedings that may follow.

12

A Digital Future Revisiting AI


The Susskind Report envisages artificial intelligence technologies as a possible
future technology. He mentions this along with big data, affective computing,
crowd-sourcing, machine learning, what-if analysis, and virtual meeting rooms.
It could well be that digital analytical technologies may be deployed as early as
Tier 1 and certainly during the Tier 2 analysis and negotiation.
AI is a complex area of computer science and has many branches with
connection and commonalities among them. The most active are shown here:

Putting the matter very simplistically legal information either in the form of
statutes or case law is data which has meaning when properly analysed or
interpreted. Apart from the difficulties in location of such data, the analytical
process is done by lawyers or other trained professionals.
Already a form of data analysis or AI variant is available in the form of databases
such as LexisNexis, Westlaw or Bailii. Lexis and Westlaw have applied natural
language processing (NLP) techniques to legal research for 10-plus years. The
core NLP algorithms were all published in academic journals long ago and are
readily available. The hard (very hard) work is practical implementation against
good data at scale. Legal research innovators like Fastcase and RavelLaw have
done that hard work, and added visualizations to improve the utility of results.

13

The usual process involves the construction of a search which, depending upon
the parameters used will return a limited or extensive dataset. It is at that point
that human analysis takes over.
What if the entire corpus of legal information is reduced to a machine readable
dataset. This would be a form of Big Data with a vengeance, but it is a necessary
starting point. The issue then is to:
a) Reduce the dataset to information that is relevant and manageable
b) Deploy tools that would measure the returned results against the facts or
a particular case to predict a likely outcome.
Part (a) is relatively straight forward. There are a number of methodologies and
software tools that are deployed in the e-Disclosure space that perform this
function. Technology-assisted review (TAR, or predictive coding) uses natural
language and machine learning techniques against the gigantic data sets of ediscovery. TAR has been proven to be faster, better, cheaper and much more
consistent than human-powered review (HPR). It is assisted review, in two
senses. First, the technology needs to be assisted; it needs to be trained by
senior lawyers very knowledgeable about the case. Second, the lawyers are
assisted by the technology, and the careful statistical thinking that must be done
to use it wisely. Thus, lawyers are not replaced, though they will be fewer in
number. TAR is the success story of machine learning in the law. It would be even
bigger but for the slow pace of adoption by both lawyers and their clients.
Part (b) would require the development of the necessary algorithms that could
undertake the comparative and predictive analysis, together with a form of
probability analysis to generate an outcome that would be useful and
informative. There are already variants at work now in the field of what is known
as Outcome Prediction utilising cognitive technologies.
Lex Machina, after building a large and fine-grained set of intellectual property
(IP) case data, uses data mining and predictive analytics techniques to forecast
outcomes of IP litigation. Recently, it has extended the range of data it is mining
to include court dockets, enabling new forms of insight and prediction. LexPredict
has built models to predict the outcome of Supreme Court cases, at accuracy
levels challenging experienced Supreme Court practitioners. Premonition says
they are using data mining and other AI techniques to expose, for the first time
ever, which lawyers win the most before which Judge.
This proposal, of course, immediately raises issues of whether or not we are
approaching the situation where we have decision by machine. In the model I
have proposed, the analytical process would be seen as a part of the triaging or
ECE process, rather than as part of the decision making process. The advantages
of the process are in the manner in which the information is reduced to a
relevant dataset performed automatically and faster than could be achieved by
human means. Within the context of the Online Court process it could be seen as
facilitative rather than determinative. If the case reached the decision making
process it would, of course, be open to a Judge to consider utilising the Law as
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Data approach with, of course, the ultimate sign-off. In that way the decision
would still be a human one, albeit machine assisted.

Conclusion
In this paper I have considered some of the software models that could be
deployed to make the Online Court work. The examples I have given of the
various models are examples only but the references by Richard Susskind and Sir
Michael Briggs to IT providing a solution is certainly a reality. The deployment of
AI in the future may require some specific bespoke IT solution but what must be
remembered is that there are software solutions presently in the market place
that can be deployed or modified to suit the needs of the Online Court. There is
no need, in my view, to design and build a system from scratch with all the
associated difficulties that invariably accompany Government IT projects.
The Online Court proposal is not without its doubters and sceptics. Innovation
always attracts such comment. The wider picture of accessible, cost effective
speedy justice deploying modern user friendly tools must be kept in sharp focus.
The opportunity is here. The tools are here and, if I am not mistaken, the will
exists. Carpe diem!

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