TECHNOLOGY is reducing the reliance on traditional courtroom hearings, writes David S Christie
The days of Perry Mason, where court cases could turn on a lawyer’s late flourish of vital evidence might be over (if they ever existed) with the increasing use of technology in the civil legal process
Three of the possible stages in which this might develop will be looked at today. Most people probably think that Scottish lawyers are out of touch with modern technology. In fact, two Scottish lawyers are at the forefront of the first stage of development.
As chair of the Civil Justice Council’s Online Dispute Resolution Advisory Group – as well as being a well-known thinker on the future of legal practice more broadly – Professor Richard Susskind is an important figure in recent moves towards moving the resolution of lower value disputes online.
More recently, Lord Carloway, now Scotland’s most senior judge, has outlined a vision for significantly increasing the use of technology in the Scottish civil court system. Both Susskind and Carloway see technology streamlining the justice system; making it more accessible through faster, ‘paperless’ communication. In addition, using online media would reduce the reliance on traditional courtroom hearings as the focus for the process.
ProfSusskind’s vision goes further: he sees technology as fundamentally changing the structure of dispute resolution processes. For example, he suggests that smaller claims could be subject to diagnostic processes up front: users can seek an initial ‘diagnosis’ of their legal position and options just as they might consult the internet before going to see their GP.
Lord Carloway’s suggestions are less radical but his embrace of the new media is significant and reflects a general desire to move Scottish civil justice forward. That is the first stage of development but the second stage may also be on the horizon. By increasing our ability to get hold of and store information, technology will help to resolve many disputes at their outset, without needing formal processes.
Getting to the truth might need less Holmes and Watson; but more phones with apps on. How? In many commercial relationships, one of the best ways to avoid disputes is deceptively unsophisticated: keep good records. That way, if there is disagreement about an issue, there ought to be material to show when the relevant information was exchanged: who was supposed to do what and so on.
Not so long ago, keeping records would have involved at least five different bits of kit: camera; paper and pen; laptop; telephones; recording equipment and a fair bit of physical storage space. Now, one tablet computer or smartphone with a few Apps can carry out all of those functions – and the information stored electronically.
However, a bit of effort in terms of indexing and filing can help this process and, increasingly, technology and cloud computing will make searching and sharing information even easier.
The third stage lies sometime in the future. At this point, it might become possible – at least in contractual relationships - to avoid arguments in the first place by automating processes and limiting people’s ability to do things which do not fit their working agreement. For example, systems could force people to get all required permissions before they are allowed to gain access to the next step in their progress towards an agreed action.
Legal blogger, David Allen Green has commented that the best contract drafters he has come across are those with computer coding experience – their mind-set is to work through the logic of a sequence of events.
In the future, this overlap might become more obvious – contracts will operate as a manual for guiding processes as well as managing the parties’ relationship. This might suggest a future where automation restricts the scope for error; limiting disagreement. Disagreements might dissolve when the “truth” is easily accessible and remaining issues are subjected to sophisticated dispute resolution processes. The ways in which this will change things for those who work to help others resolve and avoid disputes is a question for another day.
• David S Christie Senior Lecturer in Law Law School, Aberdeen Business School Robert Gordon University