It was, in his own words, “seditious” talk, but in his keynote address at the Southern African Chief Justices Forum, Prof Richard Susskind OBE, campaigner for innovation in the legal sector, urged top African jurists to consider embracing digital technology – even if it means judges with no courtrooms and justice with no lawyers. Tania Broughton takes a closer look at his ideas.
Global access to justice is a problem, Susskind told the Forum, which met in Zimbabwe in late September 2021. “Even in legal systems that we dare call advanced, it takes too long to resolve civil disputes, it costs too much and is not understandable unless you are a lawyer.”
Susskind said it is not enough to “automate” court processes, there needs to be innovation – fundamental changes in the way legal disputes are resolved. As a response to Covid-19, he was involved in the design of an international remote courts project which resulted in 168 countries moving, at least in part, from a physical courtroom to some kind of remote hearing.
The most successful were video hearings which worked better than most lawyers and judges had expected.
However, while some had embraced the technology, others said they couldn’t wait to get back to “proper legal and court work”. Susskind advocated for a balance between the two. “If we only offer physical court hearings, we will not crack the access to justice problem.”
While Susskind acknowledged that in some countries access to the internet could be a problem, he argued there was increasing investment into this, and there was “no finishing line” to technological advancement.
He predicted several interrelated “trends” in the coming decade which would aid access to justice. These included “asynchronous” online judging which could be used for everyday low-value disputes when the parties were not available at the same time. The dispute would be handled via an electronic exchange of papers, an online discussion or debate, and a ruling handed down electronically by the judge.
There also needed to be extended court services, he proposed, where lay people could go online to find out more about their legal positions, to understand their rights and entitlements, and to possibly resolve their disputes themselves through online negotiation or mediation. This could be done with the assistance of what he termed “front ends”, charities or academic organisations linked into the court system.
Susskind said AI systems which could predict the outcome of court decisions were constantly improving. “One of the things clients often ask their lawyers is, ‘What’s our likelihood of winning?’ and this informs their decisions as to whether or not to proceed. I believe these predictive systems should be baked into the extended court services to help people understand that likelihood.
“The third role of AI is far more challenging. It’s whether or not court determinations might ever be made by a machine. There is no system now – and no technological prospect of there being in the realistic future – a system that can reason, weigh judgements as you do as judges. But it is possible, based on past decisions of the court, to predict a likely outcome, and that prediction can become a form of binding determination with the consent of the parties.”
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