When I first set foot in a solicitor’s office in about 1980 technology was not exactly in evidence. There were telephones, there were electronic typewriters (I think there were still some manual ones too), and that was about it. Very little changed in the way my secretary and I worked until the early 1990s when, having an interest in computers, I managed to persuade my firm to get my secretary one of those new-fangled word processors, the first in the office.
After that things began to change rapidly, as the IT revolution was gleefully embraced by the legal profession, encouraged by the promises of the sellers of the technology, both hardware and software. Unfortunately, many of those promises proved to be hollow, as the revolution began to look more and more like a failed coup. We were told, for example, that our new toys would replace paper, which would be consigned to the great shredder of history. Twenty-five years on, however, the paperless office seems as far away as ever.
Now we are being promised an online court. Whether this promise will come to fruition in the foreseeable future I don’t know, but at least this time it is being backed by some pretty heavyweight names in the legal profession, including Lord Justice Briggs, the Master of the Rolls Lord Dyson and the President of the Family Division Sir James Munby. With such support, and with the substantial proviso that the technical issues are resolved, perhaps we will have an online court as soon as promised, even if it is initially of a limited nature, rather than dealing with all cases from start to finish.
Whatever, we have a duty to consider not just what the online court will (or might) be like, but also what its design goals should be. We all know, for example, that in these days of the unrepresented litigant one of the specific aims of the online court is that it should be useable by the litigant in person. Does this mean, however, that it is being designed to exclude lawyers, as has recently been suggested? Those involved in the design process seem to be denying that this is the case, but obviously there could be a fine line between making a system that doesn’t require a lawyer and making a system that doesn’t want a lawyer.
There are actually two issues here: the fundamental one as to whether lawyers should be involved in the court process of the future, and the more prosaic one as to whether it is actually possible to exclude them.
As to the first issue, the obvious problem for an online court is that whilst it may create an easy to use procedure it will not, of course, alter the law that is used to resolve the case. Yes, a simplified procedure could do lawyers out of one part of their job, i.e. guiding litigants through the process, but it would not do away with the need for legal advice. The online court cannot advise the litigant on the merits of their case, on what evidence is required to support the case, or on how that evidence should be presented. Any court system that denies access to a lawyer for these things would be very poor indeed, would deny justice and could even grind to a halt, as the online judges struggle with inadequate and poorly presented evidence.
Yes, I can foresee that there may be some cases where an online system without lawyers would work. However, they require two things: firstly, that the case does not involve any complex legal issues, and secondly, that the litigant is capable of using the system. Remember, for example, that many people are computer illiterate, or just plain illiterate – how are they expected to use an online system without assistance?
Moving on to the second issue, I simply don’t think that it is possible to exclude lawyers from an online court. Even if the lawyer is not directly involved in the online process by not being allowed access to the litigant’s online case file (if this could be achieved), they could still advise the litigant and prepare the case for the litigant to input. There is just no way to prevent this, so why try? Advising users of the system that a lawyer is not required will just put those who follow that advice at a disadvantage compared to those who do consult a lawyer.
In short, just as the paper maker need not have worried about the promise of the paperless office, I don’t think that the lawyer need lose any sleep over the promise of the online court.
And as in the bricks-and-mortar court the litigant in person who is also a lawyer will enjoy a massive advantage – all the greater when the judge cannot weigh up the parties personally.
If one or both sides are not represented anyway as in a growing percentage of cases it doesn’t matter if it’s online or not as it’s mostly down to the judge to ask each party questions, each party can cross examine each other but again with neither side being a trained barrister would it matter if this was all done procedurally online, I don’t think so.