If I told you that 78% of all judges in a certain country were "extremely concerned" that their government had lost respect for them, what country would come to mind? Bolivia? Myanmar? Poland? Bangladesh perhaps? (These are the countries ranked among the worst for judicial independence on the World Economic Forum Global Competitiveness Index.) No, it's actually the United Kingdom, whose judicial independence score is among the best in the world. The annual Judicial Attitude Survey for 2020 (pdf) results is where this 78% figure comes from. Key findings on judicial respect:
Judges in the UK are under political attack for their so-called activism in judicial review: failing, as unelected officials, to show sufficient deference to democratic government policymaking and legislation. A report commissioned by government in the summer of 2019 to "end the abuse" of judicial review was recently handed in by Lord Faulks QC. The Law Society submission says there is no need for reform - the common law on judicial review is working pretty well. These sorts of attacks are not new, and not limited to the UK. They are based on misapprehensions: first, of the role of the judiciary as impartial arbiters of the constitution, and second of the meaning of democracy.
As a 2015 study* concludes, "[T]he greatest threat to judicial independence in future may lie not from politicians actively seeking to undermine the courts, but rather from their increasing disengagement from the justice system and the judiciary." Unfortunately, as recent events in the UK demonstrate, this is no longer an either/or situation.
So for those judges and lawyers who think we are years or decades away from machine learning (a form of limited AI), LexisNexis releases its new "Context Court Analytics" tool to help lawyers figure out what language is most persuasive to the judge before whom you will be arguing. Its a combination of natural language processing and machine learning that can save lawyers many tedious hours of research. Of course, it may also provide plenty of insights into a judge's favourite precedent. Eventually such tools will be used by judges too. Perhaps tools like this one will soon evolve into the next Lord Denning, clearly summarizing unstructured case law and moving the law forward. Don't forget. It takes a lifetime to make an organic thinker, and milliseconds to make a synthetic one. Check it out here.
So with virtual trials and appeals more the norm than the exception, have we lost the dignity, formality and majesty of the courtroom experience? Perhaps, and we should certainly try to ensure that the way virtual hearings are handled maintains the importance of decorum and civility. On the other hand, let's not forget that there are certain benefits to a more user-friendly dispute mechanism. We need witnesses to be honest, not intimidated. What used to be considered monumental architecture designed to impress can also appear to be a relic of an earlier age that is in sad need of a refresh.
A thousand years of progress?
The job of a judge, and the working environment of judges, have been quite stable for generations. "When you see a judge or magistrate sitting in court, you are actually looking at the result of 1,000 years of legal evolution." A thousand years ago the biggest technological innovation was the astrolabe (pictured). Today seafarers use advanced information and communications technology to navigate, including GPS - which was made commercially available as recently as the 1980s.
Is there any reason to believe that judicial officials should schedule, hear and decide cases the same way they did 1,000 years ago? Obviously not. But what about 30 years ago? Because in the last few decades, information technology has been transforming every aspect of our world.
Navigation is about two things: knowing where you are headed, and knowing where you are now.
Where are we now?
Canadian courts are well behind the technology curve. True, most judges use laptops in their chambers and on the bench. In many courts parties can file their pleadings and other forms electronically. A few courts have been using digital registry systems for scheduling and tracking proceedings. Every court has a website, and publishes their decisions online. Some have moved their office productivity tools into the cloud. These are important and welcome changes. But we have a long way to go in order to benefit from the possibilities of technologies.
Where are we going?
There is no single vision or ideal endpoint for courts of the future. According to Richard Susskind, the court of the future may not even be a court at all: courts are service providers, not places.
The future is a choice we make, not a random destiny. We know that there are multiple futures in our grasp, and many technology tools available today (and new technologies that will be invented in the future) to help us shape that future. We also know that inaction is a choice, a choice that abdicates responsibility for creating the conditions today that will lead to the future we desire.
There are historical, systemic challenges that keep courts miles behind the leading edge. Our job now is to understand and overcome those challenges. In this website I identify seven critical success factors for building out a court's vision for the future. It is hard work, but needs to be done, even in the face of objections.
Thoughtful people who oppose change are not obstructionist: As A.J. Sheppard wrote, “Some of those who are resisting change most strongly are only doing so because they care. They’re the ones you need to be listening to.” Promoting technology in the courts does not mean giving up our justice values and principles. In fact it is the only way of protecting them.