Dory Reiling Ph.D. Mag.Iur. is an independent judicial reform expert specialising in, inter alia, the application of technologies in courtrooms. She retired as a senior judge at the Amsterdam District Court, where she was involved in designing digital procedures in the civil courts in the Netherlands, and she has worked as a senior judicial reform specialist at the World Bank.
Dory is the author of Technology for Justice: How Information Technology can support Judicial Reform, a book on the role of IT in judicial reform (based on her doctoral dissertation) published by Leiden University Press in 2010.
ILT was privileged to be able to interview Dory about some of the challenges currently faced by Indian courts and what lessons might be learnt from best practices in the Netherlands.
The American Bar Association, for one, refers to ‘technology-enhanced courtrooms.’ Given your extensive work with Dutch courts, do you consider technology’s role to be limited to enhancement of what already exists, or is there truly space for innovation in courtrooms? If the latter, how can that innovation be facilitated?
What the ABA means by “technology enhance courtrooms”, is, if I understand correctly, a courtroom where everything stays the same: rules, the room (more important than you might think), and the technology supports the usual way of doing things. For instance: a document camera, a powerpoint presentation for pleadings. These are improvements, but they do not fundamentally change the way a trial is conducted.
Innovation, in my understanding, is finding a new way of conducting a trial or court case. For the Dutch civil commercial claims, I built an integrated digital procedure: e-filing, one digital case file accessible by all involved in the case, and digital case management. The case management basically consists of deciding the next procedural step in the case of an event: someone files a defence, and then what is the next step? If the system “knows” what the next step is, it can automatically execute it, for instance tasking a party to file. In the case of a defence, the case judge needs to decide what comes next: a hearing, another round of document exchange, a decision straight away. In most cases, the clerk will know what to do, but in exceptional situations she can refer the case to the case judge for a decision on the next step.
This is serious innovation, and I am quite proud we were able to pull it off. It reduces waiting time, since most of the time no human is needed to move the case forward. One case in our pilot scheme was completed, from filing, through a hearing to judgment, in seven weeks.
India faces a staggering backlog of cases that totals nearly 38 million in the District Judiciary and High Courts as of July 2020. Can technology alone solve this problem, or must we continue to push for fundamental judicial reform before technology can realize its potential?
There is no way technology alone can solve this problem. I do not know if a fundamental judicial reform is the way to go. My advice would be to do an assessment of the way courts do their business, because there can be many reasons for this backlog, and they all need to be identified before solutions can be proposed.
For instance: my digital case management could not save the problem of a backlog for hearings caused by a shortage of judges and hearing rooms. The shortage was also partly caused by the fact that most judges are not very effective at conducting efficient hearings.
So, several solutions present themselves: more training for judges in conducting efficient, effective hearings, and more efficient use of hearing rooms. My colleagues are now holding hearings in the evenings, to catch up with the backlog caused by court closure because of the pandemic.
To encourage the uptake of technology in courts in India, we first need to convince a judiciary that, at times, can be highly sceptical. In your experience, what arguments do judicial leaders find persuasive when presented with bids for the increased use of technology in courts?
It is important to find out what the technology can bring by way of value for all the users. For instance judges appreciate being able to work from home; so if they can do that they will be more amenable to the introduction of technology for other groups of users.
There are other values that need to be taken into account but providing value for the users is key to introducing technology.
In designing digital procedures for Dutch courts, how did you measure ‘success’ or ‘progress’ in your projects? Are we looking solely at numeric factors like the reduction of backlogs, increasing speed in dealing with cases, etc. or should we be looking at other factors, too?
Here again, producing value for the users is key. So, for the lawyers it was key that they could do e-filing straight from their own document management systems. For the judges, it meant being able to work from home and having a better overview of their cases. For some support staff, it meant they now do less work by hand, but for others it meant they lost their jobs. Take that into account as well.
We also looked at effects like the ones you mentioned, and I was very proud that we managed an entire civil commercial claim from e-filing to judgment and including a hearing within seven weeks. I think that, with digital case management, participants in cases including the judges can have a better overview of their caseload and so take more informed decisions about their case management. But so far, I do not have enough evidence to be able to prove that.
In a recent blog post where you outline some of the implications of COVID-19 on courts, you mentioned that ‘[c]ourts are turning to information technology to keep their business open.’ How critical do you think IT will be in overcoming the current and future access to justice issues caused by the global pandemic? Realistically, will no- or low-tech courts ever be able to catch up?
It is interesting to see how, now that the pandemic is taking so much longer than anticipated, the perspective of what technology can do for courts is changing. In the beginning it was just a way to keep up as the courts open as much as possible until things went back to normal.
Now, I can see that courts are taking a longer-term view to ensure their business stays open. For instance, court staff and judges will continue to work from home much more than before. This requires they have remote access to the court systems, which may raise security issues that need to be resolved. This entails investments in secure systems and in security management.
I also think that online hearings will become more of a feature of court procedures. Online hearings are easy to implement, because videoconferencing is a stand-alone technology that does not need complex court networks. Its value for the users can be considerable: no travel time, no need to take off time from work for the parties. In the US, courts found that no-appearance rates in small criminal cases dropped from something like 90% to near zero. I think that is progress in terms of access to justice.
Her book is available to purchase in paperback here.