Justice: Get Digital. Three Questions to Florence G’sell
By Institut Montaigne
As Institut Montaigne released a report entitled Justice: get digital, Florence G’sell, who took part in the reflection, answers three questions about a digital transition of the judicial system.
What is the current situation of the judicial system? What should be taken into account at the starting point of a reflection on the current digital transition?
If we were to draw up an inventory of our judicial system, it would certainly reveal a deep crisis of justice as an institution. It is often pointed out that French courts are both overburdened and under-equipped, that they suffer from a persistent lack of personnel, and that the current organization of the judicial system is inadequate.
The ongoing digital transition is thus occurring in an already deteriorated situation. It is characterized by two phenomena. First, the appearance and development of increasingly sophisticated technologies (artificial intelligence, blockchains, etc.) that will result in a deep reorganization of jurists’ work. Second, the multiplication of “legal startups” (Legaltechs) that provide innovative services to litigants and citizens. In this respect, it clearly appears that all the services which are not supplied by traditional actors (including the State) will, sooner or later, be provided by startups, as long as there is a viable business model for them. For example, it is, at present, not possible for an individual to file a complaint online. A startup has thus started to provide this service by offering litigants the possibility to draft their complaint on the platform, which is subsequently delivered to the competent jurisdiction by mail. Other platforms provide online dispute resolution services (mediation or arbitration) and sometimes bring together litigants who suffered from a similar damage. In this context, digitalization has become a major concern for the judicial system, if only to prevent it from becoming out-of-date or being left behind.
Digital innovation certainly creates significant challenges. Artificial intelligence tools will allow for the automation of an increasing number of repetitive tasks, which will relieve judges and clerks. Meanwhile, the idea of “algorithmic justice” generates suspicion. This concern is related to the challenges raised by the development of “predictive justice” tools which elaborate statistics on the chances of success of a given claim with Big Data analysis. Although such statistics could be useful to judges and lawyers, one may dread that they could have a bad influence on the courts, who could lose interest in the merits of each case.
How could we explain the fact that the public service is so late and what is the litigants’ feeling on this matter?
As we know, the justice system suffers from a lack of material and human resources. It will be necessary to make investments and to appoint and train agents. But any reform should be designed by taking into account the expectations of citizens and litigants.
During the discussions of the working group on the report Justice: get digital, a field survey was conducted on SMEs directors who had been litigants before commercial courts and on individuals who had dealt with the judicial system within the context of their divorce. The objective of this survey was to gather a better understanding of their expectations and to collect their point of view on the use of new technologies (videoconference, digitalization of procedures, predictive justice). It appeared that litigants’ expectations are based on a number of key ideas: authority, trust, simplicity, loyalty, credibility, accessibility, cost, temporality, predictability, humanity, feasibility, effectiveness, efficiency and entirety. The reforms that are necessary today should be elaborated in the light of these imperatives. And digital technologies could precisely help meeting these expectations.
Which possible plan of action should be recommended in order to introduce new digital tools?
The mere modernization of the existing IT infrastructures is not the only challenge that the judicial system is facing today. The public service of justice should take full advantage of the new opportunities provided by technologies in order to offer appropriate and qualitative services to litigants.
Artificial Intelligence could, therefore, help offering an optimal welcome and providing better information to citizens. One could, for example, imagine a bot that would provide essential information online: competent court, applicable law, chances of success of the claim… In this respect, Big Data analytics and predictive tools should be fully exploited. These tools would allow, once the Open Data policy for judicial decisions is implemented, to deliver a legal analysis based on an accurate overview of the existing case law. Of course, it will be necessary to determine reasonable and ethical standards for the use of such tools.
The possibility to start proceedings online should be generalized. Litigants could then be assisted by a robot in the drafting of their complaint, at least in cases where assistance by a lawyer is not mandatory. Applications for legal aid could be made and processed on a platform which should be connected to the other public services.
Moreover, the dematerialization of the whole procedure could greatly improve the efficiency and the speed of case processing. It could even relieve the parties themselves, who could, whenever possible, be heard via videoconference or not appear at all. Hearings could be recorded and made available to the parties and even to the public. One could even imagine that enforceable decisions would be delivered orally, in the wake of multimedia hearings, and recorded on a support which would be provided to the parties. The generalized use of videoconference would solve the issues raised by geographical isolation. It could also lead to rethink the territorial organization of the judicial system.
Finally, it will be vital to closely monitor the evolution of cutting edge technologies, such as blockchains. It is, for example, necessary to be aware that online dispute resolution projects based on blockchains are currently being developed: they will make it possible for amicable agreements or arbitration rulings to be directly and automatically enforceable on blockchains.
Of course, such an ambitious strategy requires governance that is adapted to the situation. The report recommends that a unique, high level authority be appointed, which would make decisions and conduct experiments when needed. We propose that a digital department be created within the Ministry of Justice, whose objective would be to analyze data related to the judicial system and to provide the various actors with useful activity measures. Finally, an independent advisory body, whose members would have diverse profiles, should conduct a continuous dialogue with legal professionals and users of the judicial system, in order to provide information about the technological and sociological progress of new technologies.
All these transformations require an extensive financial commitment through a long term investment plan. Such a plan could be adopted in a programming law for justice. In any case, it will be essential to increase the share of the innovation budget within the IT expenditures budget of the Ministry of Justice.