As we await artificial intelligence that some say will neatly absorb all of the circumstances of a particular dispute, sort all of the necessary documents, discern relevance, assess credibility, find facts, apply the law or even advance new principles, and issue reasoned decisions, society will just have to make do with human lawyers and judges doing what they can with available technology.
I offer some brief observations on the use of technology and the courts.
Significant productivity has been realized in practice – from paperless offices to mega data document discovery systems to large scale multifactorial risk analysis platforms.
Courts, too, have advanced their processes, such as enabling e-filing, providing electronic order approvals, implementing real-time digital audio recordings of proceedings, providing for appearances by video and equipping courtrooms with advanced technologies. The Court of Appeal is expanding its capacity to receive appeal books electronically. Some courts have even opened Twitter accounts.
Judicial digital literacy and attitudes toward the use of technology in proceedings have progressed significantly from when I first joined the Bench. Technology issues arise regularly: qualification of forensic IT experts, theft or misappropriation of digital information, the mode of digital disclosure, the use of digital animation, and the admissibility of digital information from social media sites. Questions arise on how to discern the original record, and whether digital information has been corrupted or altered. Anton Pillar applications now concern digital information and meta data. Jurors are tempted to do their own research and now have the means at their fingertips to do so. Invasion of privacy has become an increasing concern.
In a recent (unscientific) survey that I conducted of a representative sample of the Supreme Court as part of my presentation for the CBA Skilled Lawyer webinar series, “Persuasive Trial Advocacy – A Tech View from the Bench,” I asked judges to identify benefits and drawbacks to the use of technology in the courtroom.
Among the identified benefits was that enhanced technology can improve access to justice through the convenience of remote appearances thereby reducing costs for litigants, lawyers and the court. Some members of the court saw technology as an efficient/effective way to present openings and closings, as well as explaining documents and theories. It also assisted in accessing and searching documents. Judges found memory sticks containing written submissions, with hyperlinks to exhibits, transcripts, and authorities helpful.
At the same time, a significant majority in the survey agreed that using technology in a proceeding presented real risks to succeeding. What were some of the reasons?
The first observation is that more often than not counsel are heard to state just prior to employing some form of technology “I don’t know if this will work.” Counsel’s honest uncertainty is well founded as the majority of the judges surveyed had observed or encountered difficulties with the technology used. For instance, the equipment did not work and counsel could not correct the problem; the disk used by counsel was not compatible with his/her computer; counsel could not find the right document on the disk; there was only a single monitor for all to view. Some judges noted a tendency in counsel to be overly focussed on the technology and lose awareness of other things occurring in the courtroom.
Some judges noted that it appeared that some counsel had not thought out in advance the specific benefit for the technology employed and had just done so because they could. Some miscellaneous concerns were noted: the technology just provided a large data dump to the court, the storage device provided to the judge could not be accessed, counsel did not realize that additional and inadmissible evidence was on the video disk provided to a jury, leading to a mistrial; PowerPoint presentation improperly blended evidence with argument leading to delay in a jury case.
Judges also noted problems with witnesses who appeared by video. On one occasion, a video witness had another person providing assistance out of view; the video and audio feed from a distant location was poor quality; a connection could not be made with the foreign location. One concern was that something is lost in not having a real document to look at, or not having the witness in person before the court so that all of the senses can be engaged. A high percentage of judges have signaled serious reservations at having the bulk of a trial conducted through witnesses appearing digitally.
As well, some judges may not be comfortable with the use of technology. It may be unfamiliar or cause difficulties such as eye strain associated with being forced to stare at a monitor for hours as documents are introduced and discussed.
Decision-making is an individualized process and knowing what works best for the presider is an important consideration. If counsel wish to present a substantial part of the case electronically, they may wish to raise the question in Trial Management Conferences.
My personal view, and one I think is reflective of the judges surveyed, is that while technology can provide many benefits, it is not a substitute for substance and that humanity is the key constant in our courts.