QUESTION
While the Covid-19 pandemic is a curse to most, it is actually a blessing in disguise; it has certainly accelerated the use of innovative technologies.
Discuss this view in the context of case management.
Please note the following:
SOLUTION
The Evolving Use of Innovative Technologies in Case Management
Introduction
Case management is an integral part of the courts’ duties as it plays a big role in the maintenance and improvement of the justice system as a whole. The processes and rules related to case management have seen great reforms in the past few decades at the behest of the rapidly evolving and developing technological standards and practices. However, it was the onset of the coronavirus pandemic (Covid-19) that has been the inadvertent driving force for the incorporation of internet-based virtual technology associated with data sharing and making appearances remotely which has allowed it to be entrenched into the operation of the court system at its fundamental level. This essay aims to track the technological evolution of the case management systems of Australian courts by taking a closer look at the said changes in the courts of New South Wales (NSW) by analysing their positive and negative aspects. This essay also analyses its alignment with the objectives of case management laid down by the legislation. More emphasis is also placed on the need for additional effective measures of protection of the rights and duties of the parties involved and the courts themselves by establishing new rules and regulations better suited to the evolutionary arc of the technologies associated with the civil procedure based on an assessment of the extent of its future use in the legal system of Australia.
Case Management and its Evolution
There are specific encoded objectives of case management dictating the foundational way in which a court must operate. These objectives are stated in the Civil Procedure Act (CPA)[1] and elaborated upon within the Practice Notes/Practice Directions issued by the superior courts that reaffirm as well as address the relevant issues, and necessary changes that may emerge over time with regard to the same. It is up to the discretion of the judges to decide what method of case management works in their court for achieving these objectives expeditiously to their optimum levels and at a proportionate cost.
Since the goal of case management is clear, it became important for the legal fraternity to find a reliable way of measuring the success and failures of its evolution over time. It is true that in order to improve one aspect of the procedure, it is possible that some other aspects can be hindered to a certain extent, which in this case would point to the possibility that, a case management process that is solely focused on decreasing the time consumption and the cost associated to cases may also in turn decrease the accuracy of their settlement to some extent. This view has also been put forth by scholars and researchers of legal studies, who state that the diminution in the quality of the dispute resolution process and the level of its accuracy is a necessary compromise in times of need when the time factor itself is of the essence.[2]
Hence, it is clear that the question of measuring the efficiency of case management strategies is not a straight forward task as it has various aspects to it which need to be considered. For instance, there exist different priorities for different people, based on their belonging to a specific place in the legal spectrum. A judicial professional would measure the efficiency based on the reduced quantum of time for the courts to deal with cases, while perhaps a litigant would place their satisfaction upon the convenience and ease of the process of dispute resolution. Consequently, it can be argued that maintaining procedural fairness is a subjective goal the accuracy of which is not easily measured and might even be impossible to be achieved in the sense of it being totally correct and appropriate in every respect.[3]
Nevertheless, evolution is a must for case management as technological advancement has progressed to an indispensable extent within every profession. With the onset of the Covid-19 pandemic and the resultant safety measures of compulsory quarantine as well as social distancing norms, the integration of the internet through online audio, visual and basically all kinds of virtual technologies to keep the justice system running without the physical presence of the parties concerned has become not only the need of the hour but now a basic norm in which civil procedure is being conducted to a great degree.
[1] Civil Procedure Act 2005 (NSW) s 56, 57.
[2] AAS Zuckerman, ‘Quality and Economy in Civil Procedure’ (1994) 14(3) Oxford Journal of Legal Studies 353 .
[3] John Leubsdorf, ‘The Myth of Civil Procedure Reform’ in Civil Justice in Crisis: Comparative Perspectives of Civil Procedure Civil Justice in Crisis: Comparative Perspectives of Civil Procedure (Oxford University Press, 1999) 56.
Communications and E-filing
Email and other forms of electronic communication have been a fundamentally essential part of modern communication for some decades now and the same has been well incorporated within the court communication systems as well. It has contributed to a large extent in reducing the involvement of manual labour, the time factor, physical materials containing the information and the overall cost associated with the transfer of data among the different departments and courts within the judicial system by allowing major chunks of paperwork to be made and shared in electronic format amongst the concerned persons.
The case management system has been evolved one step further by the introduction of the E-filing system which allows court documents to be officially filed, delivered, retrieved, shared and managed in every way in electronic format. This system has eased the process to the point of real-time updates being made available to concerned parties increasing the convenience and cost-effectiveness without the requirement of physical presence in the courts. It has now become a part of the public service and is responsible for handling vast amounts of data which can be further optimised through improved use of AI systems for the benefit of future evolution of case management.[4] The NSW district court website along with similar websites of all Australian states and territories offers several online services that allow people to access data pertaining to different aspects of their cases in the Supreme, district as well as local courts.[5]
Audio Visual Proceedings
The Covid-19 pandemic was the period of a decisive shift toward the incorporation of virtual or audio visual link technology (AVL) in conducting the proceedings or hearings for the lack of a better way to deal with the building backlog of cases. The Supreme Court of NSW released a fact sheet to ease into the virtual courtroom set up as soon as practically possible in order to shift the courtroom into the virtual space.[6] The technologies pertaining to telephone and video conferencing were put into full time use and litigants as well as legal professionals were encouraged to make appearances by virtual means from the safety of their homes as opposed to making physical appearances which was the norm only days ago.
[4] J Michael Greenwood and Gary Bockweg, ‘Insights to Building a Successful E-Filing Case Management Service: U.S. Federal Court Experience’ (2011) 4 International Journal for Court Administration 9 .
[5] New South Wales Government, ‘Online Services’, Courts and Tribunals (2023) .
[6] Supreme Court of New South Wales, Virtual Courtroom Practitioner’s Fact Sheet (March 2020) .
Although the Covid-19 protocols have ceased from operation since October 2022, the practice of virtual courtrooms and virtual ADR avenues have been kept open for the parties who wish to opt for it upon approval of the court.[7] The urgency of the situation in which the AVL technology was put forth for widespread use meant that there were technological issues that needed circumventing at the time. Issues involving lack of adequate bandwidth and speed of transmission of data containing evidence in high quality and video conferencing to be maintained at all times had proven to be a difficult task in addition to the more complex issue of data security. It became inevitable to make the users aware of the security risks involved with the use of AVL technology which required certain appropriate measures to be taken by all the users to protect their privacy and data and to avoid security problems. The simpler measures include the creation of strong password protection for their AVL accounts, setting up the camera in such a way as to avoid inadvertently revealing any sensitive data or documents in the video and putting in place any extra measures of protection for enhancing security and mitigating the risk factor at their individual levels.[8]
Online Dispute Resolution
Alternate Dispute Resolution (ADR) is an effective tool of case management used by the court to divert cases toward early dispute resolution as a prerequisite to actual litigation thereby saving the time of the court as well as the litigants. In addition to being a court-facilitated and affordable option for the litigants to take, the ADR process is also a well-developed mechanism maintained and regulated under proper ethical standards of conduct by a standards and accreditation system known as the National Mediator Accreditation System (NMAS).[9] After the onset of the pandemic, the ADR process has seen tremendous growth by a jump of 46% in 2021,[10] which is specifically the increase in settlements done through the online dispute resolution (ODR) process. Owing to its success, the Supreme Court of the NSW has pressed upon the importance of integrating ODR into the ADR landscape permanently by establishing ODR guidelines and protocols as well as the introduction of AI decision-making and automation technologies within the ODR process to assist in further reducing the costs and the time consumption of the same.[11]
[7] Supreme Court of New South Wales, Ending of Covid-19 Protocols (17 October 2022) 1 .
[8] Russell G Smith, Rebecca Savage and Catherine Emami, Audiovisual Link Technologies in Australian Criminal Courts: Practical and Legal Considerations (Australian Institute of Criminology Reports, 27 July 2021) 4 .
[9] Mediator Standards Board, National Mediator Accreditation System (NMAS) (1 July 2015) .
[10] Aaron Zou, ‘Online Dispute Resolution in the Age Covid-19’, Australian Disputes Centre (6 October 2021) .
[11] See Ibid.
While uniform adoption of the standards and protocols attached to ODR is the easier natural transitional step toward the integration of ODR, its developmental goals pertaining to AI technological advance is the more complicated step. The technology of digital communication and applicable online service systems has seen continuous transformations in the past few decades with new phases of evolution being brought about rapidly into exercise at industrial levels. However, it is not clear to what level, these evolutions can influence the future of the legal system. While there are ad-hoc committees and innovation teams in various firms being set up dedicated to sourcing and testing the viability of further technological involvement and its integration in the legal services platform made available to the parties, the process is lacking the appropriate amount of funding and investment it requires.[12]
One of the prevalent issues pertaining to ODR is that there needs to be more attention to be given to the development and integration of private ODR and e-Court strategical growth with the official ADR processes of the Australian courts. This will help in gaining consistent and appropriate funding toward a streamlined research process based on the current legal framework and its contemporary needs, instead of the patchy development in the commercial and business areas as witnessed.[13] The Australian guidelines[14] as well as the guidelines set forth by the Organization for Economic Cooperation and Development (OECD) for electronic commerce[15] making the ODR process officially applicable to e-commerce and business to consumer transactions is a good start and will pave the way for making it applicable to a wider range of disputes as well.
Artificial Intelligence
Artificial intelligence is being explored in computer systems for automating the process of negotiation and dispute resolution which are based on a design centred around the needs of human beings as its users for better case management in a hybrid manner relying both on technology and individual input within the system.[16] This process indicates that judicial professionals, lawyers and all members of the legal fraternity must take it upon themselves to adapt to the use of AI systems in their constituent tasks to gain better productivity and management through data-driven assessment mechanisms and decisions based on statistical arguments. Although there is a tentative fear of being replaced by technology, this is not a possibility in the legal profession owing to it being dependent on individual expertise, judgement, empathy, creativity and other practical and variable aspects requiring acute human intelligence are valuable to successful dispute resolution and litigation.[17] Automation of sentencing is also an aspect where the implementation of the AI system is being experimented with, however, this is being viewed as an extremely reformist step at this point and may be resisted by people in general as it is a part of the judge’s job. Although most cases are standard and by the book based on set rules that dictate the applicable sentence and settlement options, there are also cases requiring a finer understanding of the political, social, communal or even individually sensitive implications that cannot be relied upon by the computer system to deal with.[18] Nevertheless, AI technology is evolving faster than ever and there is no denying that it will soon become a more reliable method of optimising the legal system and practice. It is also true that there is still some time before any rules and regulations can be made to integrate its use in the case management mechanism of civil practice, although it should not be completely ignored either. For instance, AI has come to control a major part of the inner workings of various businesses and corporations in handling large scale sensitive data which forms part of the evidence in related cases which points to the fact that AI as evidence needs to be evaluated and assessed in order to be made admissible in courts.[19] In other words, the infusion of AI systems in the inner workings of the legal system is a slow and steady process that will possibly take longer than other forms of technology discussed herein to be completely made reliant on the same, however, this process is surely underway.
[12] Andrea Soriano, Technology and Dispute Resolution: Contemporary Developments (2019) .
[13] Tania Sourdin and Chinthaka Liyanage, ‘The Promise and Reality of Online Dispute Resolution in Australia’ in Online Dispute Resolution: Theory and Practice: A Treatise on Technology and Dispute Resolution (Eleven International Publishing, 2012) 497 .
[14] Commonwealth of Australia, The Australian Guidelines for Electronic Commerce (March 2006) .
[15] Organisation for Economic Co-operation and Development, Guidelines for Consumer Protection in the Context of Electronic Commerce (2000) .
[16] John Zeleznikow, ‘Using Artificial Intelligence to Provide Intelligent Dispute Resolution Support’ (2021) 30 Group Decision and Negotiation .
[17] Michael Legg and Felicity Bell, ‘Artificial Intelligence and the Legal Profession: Becoming the AI-Enhanced Lawyer’ (2019) 38(2) The University of Tasmania Law Review 58 .
Conclusion
The process of improving the case management system of the civil courts of Australia is a complex and intricate one based on subjective and objective considerations to measure its accuracy and appropriateness as dictated by the purpose for which it exists. Some adoptions of technological advancement within case management have been gradual and natural in transition over the years, while some have been due to the sudden and urgent need for it during the Covid-19 pandemic. Communication through E-mail and sharing court documents through the process of E-filing are two such technological adoptions that have been gradual and natural in their implementation facing lesser amounts of issues associated with them. On the other hand, the shift toward virtual courtrooms and online dispute resolution mechanisms has been rather abrupt and is still witnessing issues pertaining to its complete integration within the civil procedure system. Nevertheless, these abrupt changes brought about by the pandemic has allowed the courts as well as the members of the legal fraternity along with the people in general to be open to exploring new technologies and their possible future use such as data automation through AI. However, this time around there is no rush for it and the same can be done by conducting thorough research with appropriate government funding and experimentation based on which the future trajectory of the AI technology can be decided and its use can be governed through proper and effective rules and protocols.
[18] Nigel Stobbs, Daniel Hunter and Mirko Bagaric, ‘Can Sentencing Be Enhanced by the Use of Artificial Intelligence?’ (2017) 41(5) Criminal Law Journal 277 .
[19] Paul W Grimm, Maura R Grossman and Gordon V Cormack, ‘Artificial Intelligence as Evidence’ (2021) 19(1) Northwestern Journal of Technology and Intellectual Property 105 .
Bibliography
A. Articles/Books/Reports
Greenwood, J Michael and Gary Bockweg, ‘Insights to Building a Successful E-Filing Case Management Service: U.S. Federal Court Experience’ (2011) 4 International Journal for Court Administration 9
Grimm, Paul W, Maura R Grossman and Gordon V Cormack, ‘Artificial Intelligence as Evidence’ (2021) 19(1) Northwestern Journal of Technology and Intellectual Property 105
Legg, Michael and Felicity Bell, ‘Artificial Intelligence and the Legal Profession: Becoming the AI-Enhanced Lawyer’ (2019) 38(2) The University of Tasmania Law Review 58
Leubsdorf, John, ‘The Myth of Civil Procedure Reform’ in Civil Justice in Crisis: Comparative Perspectives of Civil Procedure Civil Justice in Crisis: Comparative Perspectives of Civil Procedure (Oxford University Press, 1999) 56
Mediator Standards Board, National Mediator Accreditation System (NMAS) (1 July 2015)
Smith, Russell G, Rebecca Savage and Catherine Emami, Audiovisual Link Technologies in Australian Criminal Courts: Practical and Legal Considerations (Australian Institute of Criminology Reports, 27 July 2021) 4
Sourdin, Tania and Chinthaka Liyanage, ‘The Promise and Reality of Online Dispute Resolution in Australia’ in Online Dispute Resolution: Theory and Practice: A Treatise on Technology and Dispute Resolution (Eleven International Publishing, 2012) 497
Stobbs, Nigel, Daniel Hunter and Mirko Bagaric, ‘Can Sentencing Be Enhanced by the Use of Artificial Intelligence?’ (2017) 41(5) Criminal Law Journal 277
Supreme Court of New South Wales, Ending of Covid-19 Protocols (17 October 2022) 1
Supreme Court of New South Wales, Virtual Courtroom Practitioner’s Fact Sheet (March 2020)
Zeleznikow, John, ‘Using Artificial Intelligence to Provide Intelligent Dispute Resolution Support’ (2021) 30 Group Decision and Negotiation
Zuckerman, AAS, ‘Quality and Economy in Civil Procedure’ (1994) 14(3) Oxford Journal of Legal Studies 353
B. Legislation
Civil Procedure Act 2005 (NSW)
Commonwealth of Australia, The Australian Guidelines for Electronic Commerce (March 2006)
Organisation for Economic Co-operation and Development, Guidelines for Consumer Protection in the Context of Electronic Commerce (2000)
C. Other
New South Wales Government, ‘Online Services’, Courts and Tribunals (2023)
Soriano, Andrea, Technology and Dispute Resolution: Contemporary Developments (2019)
Zou, Aaron, ‘Online Dispute Resolution in the Age Covid-19’, Australian Disputes Centre (6 October 2021)