By Claire Donse at DLA Piper for PILnet
Much has been written about how the novel coronavirus poses a threat to the world’s economy and financial systems. It also poses a threat to access to justice. If courts and tribunals remain closed, and justice is significantly delayed, citizens will lose faith in the role of the judicial system, leading to a rise of social problems and a resort to alternative methods for resolving disputes.
After an initial wave of closures, adjournments and delays, courts, who are traditionally rooted in precedent and slow to change, have scrambled to implement tech workarounds. In many countries the virus has pushed courts to adopt technology and has accelerated the move towards online and remote delivery of justice. Early indications are that results have been good, or ‘good enough’, suggesting that many of the adaptations will likely become permanent.
Following the outbreak and the ensuing quarantine measures in China, the country’s highest court directed courts of all levels to ‘make full use of online systems for litigation, including those for case filing and ruling delivery’. China has reported an extraordinary 453% year-on-year increase in the use of online courts in the months of February and March 2020, with around 150,000 cases heard online across the country, and more than 300,000 disputes were mediated online over the same period – an 89% year-on-year increase. Recent reports state that courts nationwide received 2.92 million cases from Feb 3 to March 31, of which 706,000 were filed online. The Chinese High Court reports that it has developed a smartphone application allowing for remote hearings that was used 6,608 times in its first month.
Courts around the world are following a similar pattern of adapting their operations to the virtual world. Systems that had invested in the technology to allow judges and justice personnel to work remotely (devices, VPNs, and online court management systems) have found themselves a few steps ahead in the transition to remote operations.
Given the urgency and the short timeframes, most of the technology being used to hear matters is existing commercially available off-the-shelf technology. In addition to traditional dial-in conference calls, the courts of England and Wales are using Skype for business for telephone hearings, and have issued a new practice direction to govern the use of remote/online hearings. The State Courts of Singapore have issued a guidance note for the use of video conferences using Zoom, as has the judiciary of Texas, in the United States, and the courts of Uganda. In Kenya, courts are now delivering judgments by email or via video link to prisons. Videoconferencing is also being used in a number of Baltic countries, including Estonia, Latvia, Lithuania, and Slovenia.
In Australia, the Federal Court is using Microsoft Teams, and the Family Court has also issued more detailed guidance on electronic proceedings, including around the e-filing of documents, issuing of subpoenas, inspection of documents and e-signing of documents, including affidavits, as well as for documents to be sworn by audio-visual link. In Singapore affidavits can also now be sworn via video conference. Many countries have conducted remote hearings via video conference.
While some teething issues have been reported, mainstream technology platforms are generally well-tested, proven and stable, meaning that courts are experiencing much greater success rates than have been seen in the past couple of decades, when many courts experimented with custom built tech platforms.
In the US, the Massachusetts courts are outsourcing the digitization process to external organizations. A Massachusetts university is piloting a project to assist self-represented litigants to prepare and file court forms electronically while courts are closed. The mobile-friendly website guides users through the forms via a series of questions, extracting the relevant information, rather than leaving them to fill in the court form alone. Court staff will then be provided with direct access to completed forms on the server. And, at the same time, areas of urgent legal need arising from the COVID-19 crisis are being prioritized.
Even the scope of technology being used is widening–in the US, video doorbells at closed legal aid offices are being remotely monitored and used to help direct people to online and telephone resources while offices are closed.
Claire Donse leads the DLA Piper’s pro bono program in Africa, Asia Pacific, Europe, the Middle East and the UK. Claire also works with New Perimeter, DLA Piper’s international pro bono initiative and nonprofit affiliate.