Speaking last week on a webinar hosted by Law Society of NSW, British author and legal technology expert Professor Richard Susskind OBE mused that, in the age of coronavirus, the current court system of physical hearings “is not coping”, citing three primary reasons.

“Firstly, there are many physical courtrooms around the world. No one could have anticipated this at the beginning of the year. Second, and as a consequence, huge backlogs are in place, and although we’ve put in place alternatives by way of remote hearings, even jurisdictions that are coping well are only managing to get through one-third of their workload,” he outlined.

“And, thirdly, there is the traditional access to justice problem. Only 46 per cent – less than half the world’s population – live under the protection of the law, via access to the courts, and there are staggering backlogs of many millions in places like Brazil and India. It’s tempting to think of these as local issues, but the reality is, even in the most advanced court systems, most civil disputes (for example) cost too much, take too long, the process is unintelligible, and all court systems run the risk of being out of step in a digital society.”

What is needed, Professor Susskind submitted, is for the court system to reflect on its purpose: “Is court a service, or a place?”

The question must be asked, he stressed, whether there is a need to physically congregate in a designated location to resolve legal disputes, or whether, in an increasingly digital society, there can and should be “new, different and better” ways of resolving such disputes.

This gives rise to a challenge, Professor Susskind espoused, which is to “use technology not simply to automate but to transform the ways that we work”.

“We should use technology to do things that previously weren’t possible, fundamentally changing the way we work. We should think beyond delivering something cheaper, quicker or lighter, but instead taking a step back and asking what is the fundamental value we bring, and can we bring that to users of court systems in new and different ways?” he said.

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The alternatives to physical hearings, he listed, include audio and/or visual hearings, or what he called paper hearings, “whereby arguments and evidence are submitted by the parties electronically, like an exchange of emails, and the judge responds in time”.

In this scenario, he explained, hearings can be “asynchronous”, in that judges can make rulings based on the submitted materials alone.

This is a fairly controversial suggestion, Professor Susskind acknowledged, but added that numerous international arbitration hearings have already been resolved in such a fashion, and thus there is no reason why other disputes cannot function in the same way.

Another option he floated was for a “state-provided extended court”, whereby facilities are built to help lay persons determine, in an online diagnostic service, their own rights, entitlements and duties.

“They should have the right or access to a system that can explain the options available to them for dispute resolution, including tools on how to organise their evidence, marshal and present their arguments, to help parties resolve disputes without the intervention of a third party. Also, there should be [third-party] settlement assistance online, not as a [private-sector] alternative, but part of the extended court services itself,” Professor Susskind detailed.

“We’ve assumed, in the past, that the role of the state is to provide independent judges. But, if the courts are to be genuinely accessible, we need to do much more than this. We need to extend the function of our courts.”

Professor Susskind ceded that he was painting a picture of a “very different world”, one in which the presumption that all disputes should be resolved in person was shifted to the reverse scenario.

“By default, at some stage, sooner rather than later, all cases should be conducted online unless there are compelling reasons to assemble in a courtroom. There will be a flip in emphasis,” he said.