♬ Listen, let’s make, it national
I want the whole world to know…♬

Lyrics and music by: Tim Mosley, Missy Elliott, Craig Brockman; recorded by Missy Elliott.

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(Cross-posted from slaw.ca and ODR and Consumers 2010.org). There is a saying that you only see the tip of an iceberg. Last week, the 2010 Canadian Forum on Court Technology hosted by the Canadian Centre for Court Technology wrapped up in Ottawa. This Forum provided several glimpses of icebergs floating in the Canadian Judicial System. All this was to be expected; after all this was a very insightful forum on the implementation of court technology and clearly showed the challenges that lie ahead. However, underlying all of this was the sometimes quietly spoken statement that the courts are losing market share to private settlement regimes.

The parties who attended – particularly the judges – are to be commended.  They demonstrated a real concern on how the system can be advanced by the adoption of technology to ensure its relevance in an increasingly online world.  Ultimately, whether this was a conference that results in all players embracing the future and realizing that the only way any real change can occur is if all the players collaborate and work together on reshaping the judicial and legal system, or whether it was just another signpost along the highway that the keynote speaker Richard Susskind calls: “The End of Lawyers” remains to be seen. The fact that eBay already settles the vast majority of its 60 million disputes in 14 languages annually using Online Dispute Resolution (ODR) and mediation techniques may provide the clearest picture yet of the future.

The opening plenary Session: “Courting Technology: A Return to Foundational Principles was delivered by The Honourable Madam Justice Louise Charron, Supreme Court of Canada. Other keynotes were by Richard Susskind: “The beginning of a new justice system” and BC’s Deputy Minister to the Premier and Cabinet Alan Seckel delivering his vision for the future.

This two day Forum concentrated on creating a dialogue between a broad spectrum of all those involved in the court process. The Judiciary, representatives of court administration from across Canada and into the USA, representatives of Attorneys-General and Justice departments, the National Center for State Courts from the USA and the Association of Canadian Court Administrators, The Canadian Bar Association, The Canadian Forum on Civil Justice, the National Judicial Institute, the Canadian Superior Courts Judges Association, the Center for Advancement in Community Justice and the Canadian IT Law Association were just some of the organizations involved along with lawyers, consultants and others.

The major themes of the conference was how technology could be better applied to improve the business processes of the court and to improve access to justice. Along the way the Forum looked at matters as down to earth as digital voice recording in the courts and as far reaching as Cyber-judging in 2020. Richard Susskind painted his vision of how technology is a disruptive force to the legal system and how change must occur within the profession at a rapid rate otherwise the changes from outside the legal system will greatly limit the role that lawyers (and judges) will play in dispute resolution. In particular, Richard emphasized four disruptive technologies facing the justice and legal system: closed client communities, the role that ODR (online dispute resolution) will play in the future, automated drafting and the electronic legal marketplace. Not everything that Richard painted was black: he did state that dispute avoidance could be a significant area for the future work of lawyers.  He advocated such ideas as a social network for Canadian judges and the possibility of lawyers moving from dispute resolution to dispute avoidance.

The vendors that were present such as Xerox, Adobe, IBM and others were painting their own vision for the future; one that applied technology to improve workflow, e-filing, case management and more to the court process. Certainly court administration officials were highly concerned on how to reduce costs and increase the handling of cases, given the imminent retirement of so many of their staff.

Dominic Jaar on one panel gave the quote of the conference:  “There will be no further bricks and mortar courthouses built after 2015”, referring to the fact that future disputes will be dealt with online. Dominic has another great quote:  “In the future there will be no e-discovery: lawyers will use meta-search techniques instead.”

Madam Justice Fran Kiteley, the co-chair of the CCCT asked the question of the conference: “Why are we committed to adjudicating in a courtroom?”  There are principles that underly the court process: our job is to determine how they can be addressed using other adjudicative or resolution methods and technologies.  The best comment from the audience was made in response to justice Kiteley’s question:  “But then we would need e-gowns!”

The ethical role of technology was explored from video conferencing to using technology to reinvent legal rituals. The BC contingent led the way in terms of exploring lessons learned in e-strategy (currently in their Court Services Online program they have 87 locations e-filing involving 2,134 clients, 115,000 documents filed/week and they scan 34,000 documents/month) and they are on an exponential curve upwards in terms of lawyers using e-filing.

For example, BC has learned from their e-courts initiative that you need a well-articulated, documented vision to start out on the right foot. Furthermore, you must have policy and judicial support before moving forward.  In terms of detail, they determined a need for two factor authentication and digital signing when it comes to e-filing. From a change management perspective, they have also indicated that to be successful, they learned that you need the support of all stakeholders coupled with the  need to understand the diversity of the client base.  Document standards and documented standards, of course, are a given. Functionality must meet workflow. Their next step is determining how to fully integrate technology to have a true electronic trial (where all processes from filing to the rendering of the decision are processed and all records are accessed electronically) rather than one which simply uses electronic evidence presented in the courtroom.

Richard Susskind did close with one final quote: “The best way to predict the future is to invent it.”  There will be an international conference on ODR and the global resolution of low-value claims in Vancouver on Nov. 2-3, 2010.  This will be the next best opportunity for Canadian lawyers, court administration and judges to see the international model rules being proposed by UNICTRAL and others in this area and judge how ODR can either exist within – or as some advocate – outside of the judicial system.  (In terms of fair disclosure, the writer was one of the speakers on a panel entitled: A Virtual Day in Court: Online Dispute Resolution).  This is the time to invent the future and allow the courts to adopt ODR as part of their overall structure for dispute resolution.  There really is no reason why the judicial system cannot offer the same services as are rendered by the private systems.  Susskind did say that if there was cannibalization of legal services taking place now, then we might as well be first to the feast.

Ultimately the reason for holding these types of conferences is to make these issues national and allow the whole world to know the challenges that we are all facing.