Even if there was no COVID-19, online courts would still be the wave of the future. This idea was the starting point for a recent webinar, “Online Courts: Perspectives from the Bench and the Bar,” during which experts from the United States and the United Kingdom examined future prospects for online litigation, and its successes and failures to date.
In his keynote address, University of Oxford Professor Richard B. Susskind highlighted how the pandemic has accelerated the trend towards online courts, with video hearings being most successful. “If you’d asked most judges and lawyers in January what they thought of video hearings, they’d have expressed an instinctive, visceral, negative view of their potential.” But the results were different than expected. “Isn’t it fascinating in this time of great pressure, when judges and lawyers really needed to, how quickly they adapted? … Minds have been opened and many people are of the view that we will never go back.”
Hosted by Harvard Law School’s Center for the Legal Profession, the webinar was an update to a HLS book talk that Susskind gave in April for his book, “Online Courts and the Future of Justice.” Joining him on that panel was Massachusetts Supreme Judicial Court Chief Justice Ralph D. Gants ’80, who died in September and to whom Friday’s event was dedicated. Gants was also honored with an HLS Award for Professional Excellence.
Gants’ friend and colleague Harold Hongju Koh ’80 of Yale Law School recalled that he was excited by the potential of online courts to “meet the users where they are,” particularly through smartphones.
“Ralph’s request would be that courts in the cloud preserve core humane values—of course efficiency and cost savings but equity, fairness, due process in the eyes of the receiver, dignity, participation and respect for public health,” Koh said.
Susskind, who followed up his book with an article, “The Future of Courts,” that appeared over the summer in HLS journal The Practice, equated the move to online courts with the medical practice evolving beyond invasive surgery. “We have ways of working today, but we don’t need to think that tomorrow will just be a quicker better version … What I am interested in is transformation, the use of technology to change how we work.”
Richard Susskind on the future of justice
Harvard Law School Professor David B. Wilkins, faculty director, Harvard Law School Center on the Legal Profession, kicked off the webinar which featured a keynote address by University of Oxford professor Richard B. Susskind, author of “Online Courts and the Future of Justice.”
Despite the success of recent months, he said, the larger goal of increased access to justice has yet to be realized. “I don’t think dropping hearings into Zoom has been a shift in paradigm. The reality is that the problems remain much the same, we still have the access to justice problem. So COVID-19 is best regarded as an experiment. It offers a springboard, I have no doubt, into a new world. My message to you today is that we are just at the foothills.”
One necessary step, he argued, is for online tools to reduce the need for lawyers. “There’s a justice gulf between understanding your rights and enforcing your rights, and traditionally that gulf is bridged by lawyers. But in a world where most people can’t afford lawyers, and where public legal funding is likely to go down rather than up, we have to find a radical new ways of helping people to understand their entitlements.”
The practitioner’s experience
One of the panels, “Perspectives from the Bar,” looked at lawyers’ experiences of the new climate—“a world that none of them expected or had time to prepare for, yet they had to represent their clients in this new phase,” noted moderator and HLS Professor David Wilkins ’80. All four panelists agreed that that online works well for oral arguments, but is problematic for cross-examination.
“It’s very hard to control a witness on Zoom,” said Jamie Gorelick ’75, a partner at Wilmer Hale. “Without the same level of formality, they’re likely to stray from the questions; it’s harder to interrupt. One expert witness even told us that he prefers to testify remotely, because then he can filibuster. And a virtual cross takes longer, so if there’s a time limit on the case, you’re eating into your own time.”
On the other hand, Colin Passmore, senior partner at Simmons & Simmons in London, said he’d successfully litigated a recent civil fraud case against a bank. The cross examination was done in person (using a large courtroom where distancing was possible) and the rest online. “We finished on the very day we’d predicted. The biggest challenge was bringing food in at lunchtime.”
Perspectives from the Bar
In this panel discussion practitioners looked at lawyers’ experiences of the new climate of online courts. Panelists included: Jamie Gorelick, Partner, WilmerHale; former deputy attorney general of the United States; Colin Passmore, Senior Partner, Simmons & Simmons; Leonora Sagan, Barrister, Fountain Court Chambers; and Kathleen Sullivan, Partner, Quinn Emanuel Urquhart & Sullivan; former dean, Stanford Law School.
Kathleen Sullivan ’81, a partner at Quinn Emanuel Urquhart & Sullivan, considered the psychological effects of leaving the physical courtroom. “There’s a loss of pageantry: You all rise for the berobed judges. It’s not just a day at the office but a major public event—That is lost. The second loss is spontaneity. The best part of an oral argument is what I call jazz: There is improvisation, there is interruption, and the sense that you might change someone’s mind in the heat of the moment.” While the ritual and the “jazz” are lost, she said that efficiency and coherence are gained. “Instead of jazz you have something highly formalized, a kind of orchestrated chamber music.”
The youngest lawyer on the panel, Leonora Sagan LL.M. ’18 of Fountain Court Chambers in the U.K., suggested that the tradeoffs are worthwhile if they lead to greater access, particularly in criminal cases. “When we’re talking about access to a system that is intelligible and affordable and accessible, where the stakes are loss of liberty, we can start being creative about where we take this,” she said.
Referring to a case she is now working on, she said: “The absolute assumption in the U.K. courts is that even preliminary hearings in the criminal sphere will take place in person. That strikes me as a lack of imagination. In this case we have three defendants [and] eight counsel living quite far apart, and many preliminary hearings, some of which take ten minutes. So, you turn up in court having spent three hours on the train. You’re already nervous and vulnerable, and maybe you’re a minor. If this pandemic can shift the paradigm as to which hearings can take place remotely and which need to be in person, we’ll be doing quite a bit better.”
The judge’s view
Another panel “Perspectives from the Bench” was presented by Sir Geoffrey Vos, the current chancellor of the High Court of England and Wales, who will be taking over as master of the rolls in January. Having worked both in both civil and international dispute resolution, Vos called for a broad “holistic” approach that would expand on current uses of technology. He envisioned a future where the full range of disputes, ranging from minor issues over Ebay payments to multinational commercial cases, would have the same starting point.
“We should not undertake reform by simply doing digitally what was previously done in an analog way,” he said. “There is no reason whatever why there should not be a single point of online entry for every dispute, however small or large, whether civil, family, commercial or administrative. A data set can be created from the outset, and the dispute can then be directed to the most appropriate resolution mechanism.”
This process, he said, should not assume that every case will end up in a traditional courtroom setting, whether physical or remote. And this would call for an expansion of the role of mediation.
“Mediation, resolution, compromise, settlement interventions—call it what you will—should not be, as they so often are, at a single point on the journey,” he said. “But they should be an integrated part of the entire system. Parties that have a problem should be led culturally to expect that the process will be about achieving a resolution, rather than exacerbating, or necessarily always deciding, who is right about the dispute that gave rise to the process. Every case can enter a metaphorical online funnel. Resolution interventions will cause many of them to settle, but if they do not, the process will be directed at identifying and then resolving the issues that divide the parties.”
Some cases would still be resolved in courtroom settings, but the development of this “ubiquitous online dispute resolution process” would ultimately lessen the costs, the time invested and the stresses of the current system. Lawyers, he said, won’t need to feel threatened about their own future. “There’s no doubt that many lawyers hope that the comfortable dispute resolution process of yesteryear may continue at least until they retire. In my view, lawyers should be more ambitious. Precisely the same parameters that make a new dispute resolution process essential ensure that lawyers and legal advice will thrive in the coming century.”
“I do not think that judges and lawyers have a choice about the direction of travel,” he said. “The only real question is when they get with the program. Our present method of courthouse based dispute resolution is simply not fit for the present era. It cannot cope with massive data, smart technologies, the block chain, and the artificial intelligence that epitomizes the world in which we now live. And I believe that we owe it to the generations that have grown up with technology to use our experience to fashion new online dispute resolution mechanisms that can provide what my generation never had—namely, access to justice for all.”
Perspectives from the Bench
A panel titled “Perspectives from the Bench” was presented by Sir Geoffrey Vos, the current chancellor of the High Court of England and Wales, who will be taking over as master of the rolls in January.
Notable participants in the Q&A afterward included Tan Ken Hwee, head of innovation for the Singapore Court Systems, who said that his country is also pursuing asynchronous hearings and smartphone technology as a means to wider access, and that the “jury is still out” on how successful this will be in Singapore. Also joining the panel was Kimberly Budd ’91, Gants’ successor as chief justice of the Massachusetts Supreme Judicial Court, who asked how this future might include disadvantaged litigants without access to technology beyond a smartphone.
Vos cited community resources to help the disadvantaged, including London’s legal resources for non-English speakers, but also said that the smartphone itself could well make a difference. “People in their teens and 20s can write a document on a smartphone faster than [older people] can write it on the computer. I take the view that there will be vulnerable people among the youth as well as the aged. But the young vulnerable people will be able to adopt technology and find it’s less likely to exclude them than it did in the past.”