Technology is woven into our daily lives. It is the now, and the future. One does not need to look too far to see mistaken disregard of technology in the past. Take the Western Union electrician who, in 1876, sent the company president an internal memo claiming that “[t]his ‘telephone’ has too many shortcomings to be seriously considered as a means of communication. The device is inherently of no value to us.”

As core public institutions, courts need to take a leading role in the responsible implementation of technology in the law and in legal practice, with a specific emphasis on problem-solving and the facilitation of the just resolution of disputes in a quick and inexpensive manner, while still maintaining the fundamentally human character of the courts. The uptake of technology is not about the use of buzzwords.

In the pages that follow, I look first at the role of the court in the uptake of technology. I then turn to look at what has been achieved, what could be achieved, and some lessons learnt along the way. Finally, I discuss the three core outcomes that technological uptake should address, and some of the challenges that may arise (or have already arisen):

At no point do I want to sound cynical when I discuss these challenges. I am not. There are always going to be challenges when developing and improving a deeply ingrained system or way of doing things. Knowing what these challenges may be and how to address them will enable better policies and processes to be implemented.

Courts are human institutions. I have referred to the courts in this way before.³ In my view, the human element of institutions, especially public institutions, is too often neglected.

Courts are public institutions made up of people. Their purpose is the exercise of public governmental power of a special, protective kind: the judicial power. This power is the manifestation and application of equality before the law, impartiality (both substantive and apparent), the rights of parties to properly ventilate and respond to disputes and allegations against them, and the fair and (as far as possible) correct determination of questions of fact and law. These are not quantifiable features; they are not reducible to statistics and metrics. They are not fully digitisable. As Kiefel CJ noted in a keynote address at a Australian Bar Association national conference, it is a human ability to evaluate complex evidence and apply nuanced legal reasoning to cases past and present with competing possible outcomes.⁴

By saying the courts are human, I mean that courts involve human reasoning and emotion, and that the courts are humane, but there is also something more. To explain this, I need to come to the topic of the abstractionism and deconstruction of whole human thoughts, human values, and human institutions into what is seen as their taxonomically organised and abstractedly expressed constituent parts. There is a modern cast of mind in deconstructing a whole proposition into a series of abstracted definitional propositions. The impetus is often a sensible one, perhaps to “unwrap”, as is sometimes said, the constituent elements of a whole idea or entity. From that process one may well get valuable insight, but the process often goes further, past insight or explanation, to definition through abstraction. The deconstructed parts then stand as the default, the representation, of that human whole idea or human whole entity. For instance, instead of describing the fairly straightforward human traits that make up a good judge using language that is experientially based — intelligence, experience, legal knowledge, decency, fair-mindedness, patience and balanced good judgement — some would define these human qualities in an abstracted hierarchy or framework using language that is abstractedly definitional. The same can happen with courts with the development of so-called frameworks for excellence through abstracted definitional terms written on the premise that one can define excellence or fair-mindedness or good judgement. One knows when one is reading this kind of material because one is overcome by the suffocating sense of meaninglessness of the phraseology being used.

This overwhelming of human institutions by deconstruction, abstraction and bureaucratisation has struck at universities and hospitals and other institutions. There are countless protocols, quality-assurance manuals, procedure manuals, mission statements, check lists, questionnaires and formal requirements written in language that needlessly abstracts and categorises, and that deadens thought and does little, if anything, to illuminate. The essence of the problem is that the experientially human is deconstructed and abstracted into definitional or quasi-definitional form in an endeavour to be certain and measurable and complete.

This cast of mind treasures price over value, measurement over evaluation, and a certain structure over the elusive place of talent. It founds the tyranny of metrics.⁵

How is this of importance for court governance and organisation in the context of technological change? The human element is important for a number of reasons. One of particular note is that we must be wary of talk that reduces the courts to a mere service or place. Richard Susskind, IT Adviser to the Lord Chief Justice of England and Wales, posed what is, in my view, an inadequate and binary question in his 2013 book, Tomorrow’s Lawyers: “Is the court a service or a place?”.⁶ The court is not just a service, nor is it just a place. It is the embodiment of judicial power and the guardian of the rule of law — fundamentally so.

So, if I could, I would suggest that in reading this article, as well as going forward, one should dive headfirst into this topic of technology and the courts with the human role of the courts, and the law, in mind.

It can be useful to conceptualise the uptake of technology by courts from more than one perspective, distinguishing in particular between the internal (or back office) and external (or front of house). Back-office digitisation refers to developments such as the digital stamping and storage of documents filed in court proceedings. Front-of-house digitisation refers to the move to presenting digitally in the courtroom, and more generally digital engagement with the court. Back-office digitisation may sound stale, but it is critical. Front-of-house digitisation cannot work completely or cohesively without it. In order to create apps that give litigants answers based on previous cases, or to have a virtual hearing, the data and documents must first be digitally stored.

There are a variety of ways in which technology has been embraced by courts in the back-office context. Much has changed since the nineteenth century, when Charles Dickens worked as a court stenographer in London. Indeed, much has changed since the twentieth century. The Federal Court of Australia, if I may say, is a good example. In 2014, the Federal Court implemented the National Court Framework (“NCF”). The NCF harmonised and streamlined the operation of the court. There had in the past been a certain lack of cohesion in how each of the State registries functioned, and, within each registry, how individual judges ran his or her docket. The uniformity of national practice, and the corresponding certainty of expectations afforded to litigants and practitioners alike, eventuated through the court embracing technology. The court’s adoption of the Electronic Court File as a complete and synchronised system for judges, court staff and parties before the NCF was an important first step in the court embracing the possibilities afforded by technology to enhance the way in which fair and accessible justice can be provided, and be seen and felt to be provided.

In the Federal Court, documents are filed electronically on the eLodgment system, at any time, from anywhere. They are then sealed, or stamped, electronically. Prior to eLodgment, originating applications would be left at the relevant registry counter and eventually sent to a Registrar for manual checking, signing and sealing. The turnaround could be several days. Then, the sealed documents would be left in pigeon holes in the Registry for the law firm or litigant to check and collect. With the eLodgment system and digital file, the Registry aims for a 24-hour turnaround. Often, it only takes a couple of hours. Indeed, many documents have no turnaround time at all: originating applications, winding-up applications, and documents lodged that do not require a fee to be paid or a return date to be fixed are automatically accepted.

The Federal Court is not the only court making headway in this regard. In Australia, the NSW Supreme Court has its Online Registry, the Victorian Supreme Court has an electronic filing and case-management system called RedCrest, and the Queensland courts have adopted online filing for matters ranging from filing a statement of claim to applying for family violence protection orders. In WA, it has, since 1 March 2018, been mandatory to file electronically in the civil jurisdiction of the Supreme Court, and in SA, a new eFiling system called Registry Online was launched. In Tasmania, litigants can even use email attachments to lodge court documents.

There is also a plethora of international examples. The United States and commercial courts of China are some of the many courts taking steps to further and better incorporate technology into the daily functioning of the courts. In the United States, some courts started adopting electronic filing systems as early as 1993. Even where eFiling is undertaken, few courts recognise the eFiled documents as the official record of the court, resulting in a parallel manual process. eFiling is not an electronic court file.

Systems like the Electronic Court File and eLodgment are critical because they provide the platform to make the court a more accessible and timely disputeresolution platform. For example, the Victorian Bushfire Royal Commission estimated that it reduced hearing time by 25% due to the electronic accessibility of documents. In this context, it is valuable to add that the uptake of technology is not restricted to constant innovation; there is also value in leveraging familiar technologies that are part and parcel of modern daily life. Even Excel spreadsheets and PowerPoint presentations have vastly changed the way in which evidence is presented in court proceedings. A more interesting example, perhaps, is in Dubai, where the Small Claims Tribunal (“SCT”), a video-driven digital court, has given claimants the option of using instant-messaging apps to give defendants notice. It will also be making its website and documentlodgement portal accessible through a mobile-phone app.

This brings me to front-of-house operations. The Dubai SCT’s implementation of supportive technologies has made the institution considerably more accessible to users. Another good example of such a human-centred design approach is the Civil Resolution Tribunal (“CRT”) in Canada. The CRT is Canada’s first online tribunal. It deals with small-claims disputes of under $5,000, as well as strata-property issues of any amount in the province of British Columbia. As of 1 April this year, the CRT will also start to deal with motor-vehicle accident and injury claims of up to $50,000. The first level of public engagement with the CRT is the “Solution Explorer”. This program asks questions and diagnoses the dispute at hand. It provides free legal information and resources like letter templates to assist users to resolve the dispute. If this fails, parties can apply to the CRT for dispute resolution. From there, the parties can use the CRT’s online negotiation platform to negotiate a result, to mediate the dispute with agreements being turned into enforceable orders, or to have the dispute determined by a tribunal member. With the introduction of this system, only 6% of small claims filed reach tribunal members for adjudication.

This is where we can see that court-annexed technology need not only focus on the final judicial determination of disputes. The court journey starts well before one even steps foot in a court, and, in the majority of cases, it ends before that point too. The CRT is one example. I-CAN!, the Interactive Community Assistance Network in Orange County in the United States, is another. I-CAN! provides interactive modules addressing the legal issues that self-represented litigants often find themselves working through. Self-represented litigants are taken through the modules to find the appropriate forms to file in court. By 2012, the system generated about 182,000 pleadings in California. Not only does this mean that self-represented litigants are able to better understand legal processes, but it also saves time and money for underfunded legal-aid centres. A further example is Uit Elkaar, based in the Netherlands. It is a user-pays online conflict-resolution platform currently configured to assist people with separation or divorce. The users collaborate on personal divorce agreements, online and in their own time. The platform has seen a very positive response from users and lawyers alike. Use of the platform led to over half of the participants experiencing “low” or “very low” stress levels during their separation, with another 36% experiencing “normal” stress levels.⁷ The average completion time of separation agreements was 24.3 active hours, that is, hours actively spent on the platform. Because of the ability of users to spread this time as they wished, 84% felt that they had more control over the process of separation than traditionally was the case. I should note that, as of March 2017, the Dutch Legal Aid Board announced that the platform would be discontinued, although it has since been resurrected and continues to function, with different funding sources.

The use of AI is not limited to making legal information and procedural guidance more accessible. AI, also known as machine learning, is a burgeoning area. It is based on the idea of “artificial neural networks”; the machine uses the source data, in the way a human uses experiences and knowledge, to reason.

AI is playing more of a role in the court context. Singapore announced its AI court-technology programme, which would include AI decision-making for some minor misdemeanours. China has also adopted AI in its courts. In the Hebei province, an application called “Intelligent Trial 1.0” assists judges in analysing data and trends for use in decisions. In Liaoning province, the courts have launched a robot called “Heping Fabao”, which provides 24-7 AI-based legal advice to citizens. AI-based case review has also been introduced, where a program analyses cases, flags issues regarding evidence, and looks at factually and legally similar cases for the benefit of the judge. This program has, thus far, led to over 30 criminal convictions being overturned.

None of these advancements have AI replacing judges completely. Even assuming AI programs could be programmed with the will to do justice and the discretional flexibility to respond to the constantly changing factual circumstances in each and every case, which “make the mechanical application of legal rules to human situations ordinarily objectionable”,⁸ there are a number of things that AI needs in order to be successful. One is large amounts of quality data. AI needs to refine and test its algorithms. In order to do this, it needs data — swathes of it. We are lucky in Australia, as we have been digitising judgments for some years now. The Federal Court has about 35,000 electronic court files. But not every file relates to the same issues, and so the data on a specific issue is probably less than the numbers suggest. Further, say new legislation in a particular area is passed which changes the law dramatically, rendering precedent unhelpful. There is then no sea of data for the algorithm to rely on to come to its conclusion.

AI also needs algorithms. Yet, who owns the code? This raises intellectual property concerns. Another concern is whether biases may be (deliberately or not) embedded in algorithmic reasoning, an issue I shall address when I come to the challenge of maintaining public trust and confidence.

Putting these concerns aside for the moment, AI has shown its value in the realm of supportive and advisory tools for small matters like in the Canadian CRT, to make legal information, guidance and the courts themselves more accessible and in line with society’s daily digital usage.

Digital hearings are very important in this regard. The Federal Court does not at present have any plans to roll out digital hearings as a default position, but there is scope to introduce the option of having some digital hearings. Parties already have the ability to appear remotely. In the Online Court of the Local Court of NSW, practitioners can appear online in procedural and interlocutory matters, and even General Division matters listed for Defence Callover (if the parties agree).⁹ In the Federal Court, an eCourtroom (which is like an online chatroom) is regularly used for case-management activities, for example to settle bills of costs. This ability to appear remotely via videolink can enhance access for people in regional areas, or even within cities. The reader may be aware that in the family-law context, the Sydney metropolitan area is serviced by only the Sydney CBD and Parramatta locations. This means that it would take a minimum of over an hour to reach either location from, say, Campbelltown. Not only is this difficult for people to access, physically, but there are often safety concerns in the family-law context as well. To have the capacity to facilitate video links makes the courtroom more accessible, financially and geographically, and can make the process of accessing the court more cognisant of the human element. In turn, this feeds into creating and maintaining public trust and confidence in the courts.

Related to digital hearings, although in a commercial-law context, some matters have started adopting what is called an eTrial. In eTrials, all documents are on an online system managed by a third-party company. Some of the uploaded documents are confidential or internal and are not shared. Some are court documents, shared with both the other parties and the judge. This is, admittedly, an expensive way to conduct a hearing. Yet it can prove more efficient in very large matters.

It may be noticed that I have, thus far, largely avoided use of the word “efficiency”. It can be both helpful and useful, but it has its weaknesses. Evaluation of the operation of a court as an institution exercising judicial power must be, as I noted earlier, humanly focused. Words such as “efficiency” can too easily enable reductive analysis of organisations, especially public institutions like courts and tribunals, which function not for purposes like wealth maximisation, but rather to facilitate, determine and enforce the effective, just and (as far as possible) accurate resolution of disputes. Courts embody the exercise of judicial power, the guardianship of the rule of law, and the humanity of the individual.

It can also be counterproductive to pursue “efficiency” above all else. In trying to be efficient, it is possible to accidentally create systems that are unintuitive, or so cumbersome and unwieldly that they make that process less efficient in practice. This is especially so in an institution serving the public. In driving efficiency, it is possible to eliminate the interactions that give the court the flexibility and discretion it needs to deal with the myriad of situations it is asked to deal with on a daily basis, in a human way.

This is why the term “efficiency” is insufficient. Even if it could capture the holistic functioning of the court, which I am not persuaded it can, efficiency derives such measurement from the perspective of the court; it does not (and to an extent, cannot) consider usability, efficacy or fairness of justice, whether perceived or actual. Perhaps a different term of evaluation is required that considers the court from the litigant, advocate and solicitor’s perspective — one encapsulating those and other alternative evaluative measurements, throughout the court journey.

There are three recurring themes throughout my discussion of the technologies that have been adopted by courts around the world: keeping up to date with the digital era, ease of access, and public trust and confidence. These should not be viewed as mutually exclusive. They are each interlinked; the first two particularly feed into the third. Importantly, these are the outcomes I see as key to the successful design and implementation of technology in courts: the outcomes that courts should be striving for as they look at ways to integrate new technologies.

Why am I focusing on outcomes? Why not merely conceptualise technologies as “back office” and “front of house”, as supportive or disruptive? The answer is connected to my earlier discussion of the human in the court. It is not good enough to design and adopt technology viewing the court as a mechanical body of people stamping documents and hearing arguments. Keeping up with the digital age means that courts are not left behind. Ease of access makes justice more accessible. Public trust and confidence is at the very core of the functioning of the courts. These outcomes are human, and approaching technological uptake through the lens of these outcomes is critical.

The three key challenges that I see as arising in this context are therefore geared towards the three outcomes of ease of access, keeping up with the digital era, and public trust and confidence. The first challenge is the practical implementation of technology. The second is ensuring that technology does not become a barrier to justice. The third relates to maintaining public trust and confidence in the courts when there is considerable distrust of some technologies.

This article does not cover all of the potential technological advancements and achievements that can play a role in the future of the courts. I have tried in the space available to focus on a few key areas: what we have achieved, can achieve, and need to keep in mind. There are challenges created by the permeation of society by technology, but also great opportunity. The unexpected pitfalls may exist, hidden in plain sight. Look at where social media is taking us. The courts have a substantial role to play in leading the way in the uptake of technology in the legal field, and we are highly motivated and excited to play it.

I have no doubt that the discussions that follow — which range from text analytics and the law firms of the future, to digital legislation and demystifying AI — will contribute substantially and critically to the present impetus to weave technological developments into the heart of the courts, the profession and the law.