CELEBRATING THE PAST, EMBRACING THE FUTURE A presentation to mark the 50th Anniversary of the establishment of the Eastern Caribbean Supreme Court made at the Sandals Grande Hotel, Antigua, on Monday 27 February 2017
Part 3 of 3 parts
The Role of Information Technology
The Caribbean Court of Justice (CCJ) will increasingly in the coming years become our final court, so it is worth looking at some of their I.T. that will soon affect us. At the ECSC Court of Appeal and the CCJ, Judges and lawyers now routinely work on their laptop or iPad in court. Notes are made and cases referred to are accessed online in real-time, while the court is listening to evidence or addresses. At the end of the day, certainly at the CCJ, lawyers and Judges on their way out of court are presented with a printed transcript of the day’s proceedings.
The CCJ is presently implementing a bespoke electronic court management software suit called Curia. Curia has three modules called Folio, Attaché, and Sightlines. Folio is the name for their electronic filing platform. Attaché is their case management system. And, Sightlines is their performance management toolkit for Judges and administrators, providing access to data and reports. In the ECSC, we have our own version of these three software packages in the form of our JEMS.
Earlier this year, Sir Dennis established the Curia Register Project which is working on getting every Judge, Registrar, Magistrate, Barrister, Solicitor, and Attorney-at-Law in the West Indies, from Bermuda and Belize in the North to Suriname and Guyana in the South to become registered participants in the CCJ database. This database is not intended to replace similar OECS efforts, but may well help: to reduce the burden on Secretaries of our Bar Associations trying to keep track of membership; Registrars attempting to police the Legal Profession Acts; and litigants searching for the right lawyer to represent them.
I am convinced of the benefits of the Curia system, and have agreed to be named as the chair of the committee working on the project, as a result of which you are all likely to be pestered by me in the coming months to participate by submitting your personal and professional data to enter into the Curia database. The benefits are many.
• Once an attorney is registered, she will no longer have to input personal and professional information when making an e-filing;
• It will automate the provision of personal and professional information on lawyers, judges and case management officers;
• It will monitor things like continuing legal education, and even matters for the welfare of lawyers;
• It will improve the system of requiring lawyers to be of good standing and pay their annual dues;
• It will automate the issuing of practice certificates, and provide a transparent manner for the public to check on practitioners;
• It will assist our Registrars, who have to calculate the number of years standing for each lawyer to be able to fix the scale of fee payable annually; and
• It will automatically show which lawyers have professional indemnity insurance, something that litigants are clamouring for.
As I consider the changes that have taken place in the practice of law in the OECS in the past 50 years, that we could, at the start of the period, never have imagined were possible, I realise that any attempt to forecast what the practice of law will be like after another 50 years lies in the realm of science fiction. But, some things seem obvious to me now.
In just a few years’ time, no lawyer will employ a messenger to attend at the courthouse to file a paper claim or defence; this will all be done automatically by accessing the Registry online. The court Registry will be replaced by the cloud.
Already, most modern West Indian lawyers’ offices do not house a single textbook, unless it is for decorating the walls in the conference room. In the modern law firm, all legal research is now done online.
There are things that lawyers have traditionally done that can be automated today. Artificial or Augmented Intelligence (A.I.) is coming to the practice of law and the determination of disputes. There is no sense fighting it. IBM’s Watson is considered by many to be the most significant technology to come to law. According to a May 2016 release, ROSS, ‘the world’s first artificially intelligent attorney’ powered by Watson, recently landed a position at New York law firm Baker & Hostetler handling the firm’s bankruptcy practice. Lawyers ask ROSS research questions in natural language, just like they were talking to a colleague, and the A.I. ‘reads’ through the law, gathers evidence, draws inferences, and returns with a ‘highly relevant’, evidence-based answer. The program gets smarter and continues to improve the more it is used. It also keeps track of developments in the legal system, especially if anything pertains to a lawyer’s specific case.
As A.I. becomes more efficient and pervasive, most lawyer’s routine legal work, such as writing opinions and lawyers’ letters, and drafting contracts and wills, will be handled by software. Today in London and New York, if you feel you have been wrongfully issued with a parking ticket, you can fill out a questionnaire and hire the free on-line robot lawyer DoNotPay. It fires off a letter contesting the citation. Has your flight from Miami to Paris been delayed, and you want some compensation? DoNotPay will draft the letter for you. The 20-year old Stanford University student who developed the application claims a success rate of 60% in the 200,000 cases DoNotPay has handled in the last two years.
While systems like ROSS and DoNotPay are unlikely to displace the reasoning processes of lawyers, there are very few legal tasks that require a lawyer to apply ‘bespoke’ reasoning. More commonly, lawyers apply ‘proven’ approaches in slightly different contexts. This is where bot-lawyers like ROSS and DoNotPay will play an increasingly important role. It may take a little longer for A.I. to invade the judicial realm, but that will become commonplace. There are many rulings the judge is called upon to make that are routine, and for which the necessary algorithms will soon be written. A ‘bot judge’ will then be able to deliver an automated and instantaneous ruling. The result is that law will become more accessible and transparent, as it should be.
In time, there will be no requirement for witnesses to go through the process of attending a trial in person. After all, we no longer accept trial by battle as the only way to arrive at the truth. Nor do we any longer accept that torture is the natural way to obtain true evidence, at least most of us don’t.
In the years to come, the court will observe a hologram, a three-dimensional representation of the witness sitting in the witness box, broadcast electronically from the place where the witness is located, and observe and listen to his or her hologram speaking, to determine what the truth is. Sensors will inform the Judge and lawyers immediately a witness is not being truthful. A transcript will be created in real-time, and the whole process will be recorded for future use, e.g., on an appeal.
Advocacy will become entirely electronic. Oral arguments are already becoming a thing of the past. Legal practitioners will have to rely on their filed submissions. At the conclusion of the trial, the Judge will no longer sit in person and read the judgment aloud. Instead, the Judge will deliver the judgment by posting it onto the court’s website, and move on to the next case before the parties have even had the time to read it.
Today, I can sit in my office at home in Anguilla, and access a streaming video of the English Supreme Court sitting in real-time and hear and observe the argument in every appeal that the court is dealing with, and the final judgment when it is given. The day will come when we will be able to do the same thing for any trial in any court in the OECS.
Jury trials will become obsolete in criminal cases as they have in civil ones. Lay persons will sit with the Judge to assist in monitoring the sensors that help separate truth from falsehood, while the Judge refers to the appropriate device that informs him or her which rules are applicable.
In time, the courthouse itself will become a thing of the past. When the judge will no longer be required to sit in the same building as the lawyers, the parties, or the witnesses, there will be no purpose served by having a dedicated structure for the resolution of disputes.
As we develop a strong and robust e-system for our judicial process, we will need to be sure we have secure firewalls and real-time backup. There is no point having the most up-to-date electronic justice system that a 20-year old student can hack into, (and change all the amounts of damages awarded, while tinkering with the lengths of prison sentences imposed). I.T. technicians already need to constantly improve their skills or they risk becoming obsolete five years after they graduate. There is an argument that ‘the cloud’ will soon render the I.T. department itself obsolete.
We will need to make sure the key consumers: judges, lawyers and litigants, are confident in buying into the coming electronic justice system. If this is successfully managed, the likelihood is that in the years to come an entire court case will be completed without any of the judge, lawyers, parties, or witnesses ever having visited a courtroom, and without leaving any physical paper trail. The technology exists today. The courthouses where we now work will be converted to museums of law, where ancient artefacts such as books and pens, and videos of the eminent lawyers of the past, eloquently holding forth, making submissions in oral support of their client’s case, will be exhibited only to excite the curiosity of schoolchildren.