/end pleadings…Will we have online courts?

By Legal Eagle

The other day I was joking that maybe in the future we’ll have Facebook judgments. One judge writes a status update expressing her opinion, the other judges “like” it or write a dissenting comment. I think that’s going a little far. But online court cases may be a thing of the future. I saw the other day in The Australian that Doyle CJ of the Supreme Court of South Australia thought that the days of lengthy costly argument in court may be a thing of the past:

South Australia’s chief justice, John Doyle, has warned that the cost and inefficiency of barristers and traditional court cases threatens to hasten their replacement by powerful judges running virtual courts online.

“I have come to the conclusion that by the end of this century, advocacy as we know it will no longer be practised,” Justice Doyle told a conference on advocacy at Adelaide University.

“There is very strong pressure for change that cannot be resisted. The only question is the extent of the change.”

He said traditional oral argument in the higher courts was under severe cost pressure from lawyers and cost-recovery systems imposed by government.

“That cost is closely related to the efficiency of the key participants — and in particular the advocates — and to the time taken to deal with cases,” he said.

His warning last Friday came four days after NSW chief justice Jim Spigelman told lawyers in Sydney they risked “killing the goose” unless they helped clients reduce their legal costs.

I sometimes wonder (heretically) whether it might be possible to have online pleadings so that lay persons could fill out the gaps and make small claims by themselves. I have a mate who is a DJ. Usually clients pay up, but every now and again, he gets one who defaults, and he wants to take action against them. Unfortunately, the cost of proceeding against them tends to militate against taking action (once you’ve added up filing fees and legal bills). Even if it all went very simply and there was no defence, he’d end up spending a couple of hundred dollars to get back a couple of hundred dollars, and then he’d also expend a whole lot of stress. It suggests to me that the whole system isn’t really working when people are disinclined by the cost of the system from pursuing their clear legal rights.

I wonder if the verbose barrister will be a thing of the past with the rise in online technology? I once had to sit through a trial where a barrister spoke for four whole days, and as far as I could ascertain, he said absolutely nothing of relevance to the case. I always found that very frustrating – it’s a waste of the client’s money, and the court’s time. The judge who was hearing the case tried to hurry up the barrister with pertinent questions or growls of “I fail to see how this is relevant, Mr X”, but to no avail. On the other hand, sometimes one sees superb barristers who manage to nail the issue with alacrity. I don’t think online technologies will pose a challenge for them. They will always be in demand. The thing is, also, that sometimes it is necessary to undertake a lengthy examination of witnesses and facts. I once saw another case where, as a result of the evidence which arose throughout the trial, the whole basis for the case was fundamentally shifted when it became evident that certain pivotal documents had been forged.

I have to admit, too, that I like the thought of seeing witnesses and watching how they behave in the witness box. Maybe I’m just a sticky beak. But it really helped me to assess which witness statements were more credible. By contrast, in the civil law systems, such as France and Germany, evidence is given “on the papers”. I’m too much of a common lawyer to be very happy with that idea. I wouldn’t want to totally do away with witnesses giving evidence.

Anyway, it will be interesting to see how the legal profession changes over the next few years.

47 Comments

  1. Nick Ferrett
    Posted February 12, 2011 at 4:23 pm | Permalink

    There is a host of issues in that post, LE.

    The barrier which the cost of legal representation imposes is a significant one. It distorts the value of goods and services, and it alters the way markets perform. Your mate the DJ could protect himself against unscrupulous operators by demanding payment up front, but if its a competitive business, he will have to take into account not only the fact that others may be willing to charge less than him but may be willing to take the risk that they have to sue for their fees.

    Our legal system has all sorts of pulls and pushes on it. The Australian legal system has some seriously positive effects on our economy because people have reasonably high confidence in the honesty of the decision-makers. Its stability is a significant positive for investment. Much of the complexity of the law (at least on the commercial and consumer side of things) reinforces that stability.

    On the other hand, the complexity of the law means that (notwithstanding some of the experiences we have of practitioners every day) comparatively skilful and intelligent people are needed to administer it, both on the public and private side of the equations. Those people, thanks to their knowledge, skill and intellect have expectations of being highly paid. If the law won’t facilitate that, they’ll do something else and, in any event, there are economic actors, particularly in the commercial sector, who are willing to pay highly for those skills. Our legal system is fundamentally geared to require litigants to spend a lot of money.

    In the end, this means that dispute resolution in commercial cases is only economically justifiable in cases where substantial amounts are in play and in cases where one side perceives it has to send a message to others that it won’t be stuffed around.

    I’ll say a little more in another comment shortly.

  2. Posted February 12, 2011 at 4:41 pm | Permalink

    The legal system would have to push the government into setting up proper internet identity for everyone, no brainer digital signatures of documents, etc.

    Ha! With Conroy as Minister for Luddism?

    I’d actually get google to supply it – everyone can share documents, assign permissions to annotate and read all in an implentation off google docs in a citizen.gov.au domain.

    You’d get your user id with your birth certificate, and you can have family gatherings to celebrate your first login, when you are old enough to remember a password. A new secular rite-of-passage?

  3. Nick Ferrett
    Posted February 12, 2011 at 6:51 pm | Permalink

    I’ve been spending a bit of time lately thinking about who ought to bear the cots of the legal system.

    One thing that I’ve been tossing about is who should bear the costs of commercial litigation. I don’t mean the costs of each party’s private legal representatives, but rather the costs of the public courts system. Litigants get a huge contribution from the taxpayer to resolve their disputes. Why should they?

    It’s justifiable on one level. Leaving aside legislation, the only way our law develops day-to-day is by parties bringing their cases before the courts. Seen that way, parties who invest time and money in litigation are not only paying for resolution of their dispute, but making a contribution to development of the law to assist in the faster resolution of future disputes. Of course, some cases are more straightforward than others, and nothing new comes from them, but they tend also to be less likely to occupy significant time. Because they are less complex or less novel, the outcome is more predictable and parties tend to invest less in seeking a judicial resolution.

    Those things said, returns diminish as mega-litigation intrudes more and more. It is difficult to see, for example, how the C7 litigation could be seen as a win for society at large. It was a fight between private interests. Although it involved an exotic area of law – competition law – no interesting matter of principle seems to come from it. The public cost of it must have been massive, albeit dwarfed by what the parties spent.

    I am moved to ask: why should the public purse be available to finance dispute resolution of that kind? At the end of the day no particular value has been obtained by society at large.

    Why not leave the parties to resolve their disputes through private arbitration? Plenty of litigants already resolve their disputes that way, particularly in the commercial setting. There is a raft of legislation and international treaties to give efficacy to dispute resolution of that kind.

    During the last couple of weeks I have been involved in preparing an application for special leave to appeal to the High Court. The High Court uses the special leave process to thin out the number of cases it hears. It generally only agrees to hear cases which it thinks will assist it to develop the law. In other words, although it hears appeals concerned with private interests, it only does so where it discerns some wider public interest to be served. That might be because the facts of the particular case are likely to recur frequently, or because there is a serious disagreement in the lower courts, or any number of other reasons.

    I can see a basis for applying this at the primary level for cases which are so big that they will create massive drains on the public purse. We could create a process which allows a judge to refer big cases off to arbitration unless a definite public benefit can be demonstrated from having it heard in a public court.

    Just a thought.

  4. Nick Ferrett
    Posted February 12, 2011 at 6:52 pm | Permalink

    In the first line, for “cots”, read “costs”

    Doh

  5. Nick Ferrett
    Posted February 12, 2011 at 8:03 pm | Permalink

    LE, good legal services are worth their weight in gold providing you’re arguing over something sufficiently valuable (and we’re back to where we started).

    One kind of constantly recurring situation I observe in my practice is that where people have been too cheap to spend the money on good legal advice at the transaction stage and so they end up with badly drawn documents or no documents at all. They end up paying litigation lawyers far more when things go bad.

    The corollary is that I make a lot of my income from people’s shortsightedness and disdain for lawyers. Ironic really.

  6. Nick Ferrett
    Posted February 12, 2011 at 8:23 pm | Permalink

    It’s not cheap to eschew the front end work when the cost of it eats up the value to be protected. One example of what I mean is a case I have involving a business sale. The documents weren’t prepared properly and terms about what debts stayed with the business and what debts stayed with the vendor were really unclear. It’s not the sort of thing which would have been difficult to write, but they didn’t want to spend money on lawyers at the time. The transaction is worth a few hundred thousand which makes it worth having the fight, but the way litigation prices are these days, you could easily spend $200K on a fight like that. That means that the parties between them will spend more than the transaction was worth. If it goes the distance someone will end up being out a lot of money and the other side will have lighter pockets as well.

  7. Posted February 12, 2011 at 8:31 pm | Permalink

    Nick and LE, you’ve raised a whole host of issues there. One thing that troubles me is attempts to restrict access to justice. In the UK, extensive tightening of legal aid is on the cards as part of budget cutbacks, and at least some of it is being sold to the public as a way of preventing the enrichment of lawyers at the taxpayer’s expense.

    The problem with that is people can have very good cases and simply fail to get representation because they can’t afford it. Since I started lawyering, the number of self-represented litigants has increased. This is over a relatively short time period, too, so I wonder how much worse it’s going to get.

    One solution is to ‘go American’ and allow contingency fees, which helps to solve the access to justice problem but makes for a much more litigious society.

  8. Posted February 12, 2011 at 9:07 pm | Permalink

    [email protected]

    One thing that I’ve been tossing about is who should bear the costs of commercial litigation. I don’t mean the costs of each party’s private legal representatives, but rather the costs of the public courts system. Litigants get a huge contribution from the taxpayer to resolve their disputes. Why should they?

    Good question. Something people don’t seem to focus on is that the supply of state-supplied adjudication services has not kept up with the increase in demand.

    In medieval times, courts (between fines and usage fees) ran at a profit. But there was also at least one judicial officer per about 300 to 500 people. Even if we assumed modern systems are 20 times more efficient, so one per 10,000 people, that would mean 555 judges and magistrates in Victoria.

    Getting numbers is hard, but apparently there are 40 Supreme Court Judges, 60 County Court Judges, various other tribunals, and X? magistrates operating out of 13 Metropolitan and 43 Rural Magistrates Courts (but many of those are part-time). Add in some federal judges and magistrates and I am guessing about 250 judicial officers tops. So, one judicial officer per 22-25,000 people.

    If you do not ration by price you ration by queue. But, of course, in legal matters even waiting time is not free. If courts were profitable, the state would provide more of them.

  9. Posted February 12, 2011 at 9:12 pm | Permalink

    [email protected] I was writing my comment (and trying to work out numbers) so missed your comment. I believe the short answer is that there were simply a lot less people per judge. (Particularly given that JPs were serious judicial officers.)

  10. Posted February 12, 2011 at 9:16 pm | Permalink

    To continue on, England in 1751 had about the same population as Victoria does now.

  11. Nick Ferrett
    Posted February 12, 2011 at 9:21 pm | Permalink

    You know, I’d heard of Armory v Delamirie, but I’d never got around to reading it. I’m aware of the case because of Roddy Meagher’s reference to it in the course of a typically sardonic judgment as the precursor to Jones v Dunkel.

    The old books are full of those sort of cases, I think, because society was much smaller and there were different reasons why ppeople didn’t have access to justice.

    Also, it’s easy to forget how massive the impact of inflation over the intervening period is. What seem like relatively small amounts would have been comparatively large at the time. Slade’s case was fought over ?16 in 1602. I guess that would have been quite a wad of (non) folding stuff back then.

  12. Nick Ferrett
    Posted February 12, 2011 at 9:28 pm | Permalink

    My comment is awaiting moderation. Is that because I put links in it?

    Lorenzo, you’re certainly right about the English Courts running at a profit once upon a time. The filing fees paid the judges’ wages. There is some decent evidence that the forms of action (which preceded modern pleading so this is a nice way to bring the thread back to the topic) developed as an incident of competition between the different common law courts (King’s Bench, Common Pleas). They issued writs which were more attractive than those to be issued out of the other courts as a means of attracting business.

  13. Nick Ferrett
    Posted February 12, 2011 at 9:31 pm | Permalink

    Given that it’s in moderation, can you fix up my misspelling of “Armory”?

  14. Posted February 12, 2011 at 9:55 pm | Permalink

    Nick, I’ve liberated you from the spammer and fixed the spelling error.

  15. Posted February 12, 2011 at 10:11 pm | Permalink

    Nick… stimulating thoughts.

    It’s easy to separate out who should pay for criminal law – the state.

    Civil law, not so easy. Family courts for custody disputes are obviously good candidates for state funding because of the state interest.

    One could also lower the bar for criminalization of things like injury from toxic releases from factories (Bhopal an obvious example).

    Express things as theft and fraud, with states imposing punishment (day for dollar the same for a mugger as corporate criminal) as well as ensuring the victim is looked after and you might even see fewer frauds.

    Perhaps the cost of the state in civil disputes could be borne by the state if the amount hit a certain percentage of the annual income of one of the parties.

    There is a lot to commend the use of private mediators, as long as you don’t get corporations owning them, with little real competition and the chance of corporate (or even class) allegiance creating the suspicion of bias.

  16. Nick Ferrett
    Posted February 12, 2011 at 10:30 pm | Permalink

    Dave, private mediation is already fairly heavily employed, often at the direction of the Court. In Queensland, alternative dispute resolution of one type or another is virtually compulsory in personal injuries and estate litigation. It’s almost a sure bet that a court will order mediation in civil litigation of all types if one party asks it to do so.

  17. Nick Ferrett
    Posted February 12, 2011 at 10:43 pm | Permalink

    The title of the thread is “/end pleadings …”. I don’t know what would replace pleadings. Properly deployed, they serve an important purpose in limiting and defining issues for trial. The problem is, hardly anyone, lawyer or otherwise, is very good at precisely defining concepts in writing. A decent slab of litigation is spent arguing over the ambiguity of words in documents, so it’s no great wonder that ambiguity in pleadings causes its own range of problems and imposes costs on litigants.

    I wonder whether one useful approach would be to simply require people to file affidavits then have a hearing before a judge to settle the issues for trial? This already happens in criminal trials to the extent that the instructions to be given to the jury are the subject of separate argument.

    The other great burden which hasn’t been raised is discovery/disclosure. Because we can record so much more information these days, the burden imposed by disclosure is much heavier than in days past. For the life of me I don’t know how you solve that one other than with a blunt instrument approach like abolishing discovery.

  18. Posted February 12, 2011 at 11:13 pm | Permalink

    You won’t find much more about it in the report. Basically, the entire text is reproduced in Wikipedia already. For some reason (and it can’t be because of the report) I got it into my head that the sweep’s master brought the action as his next friend.

    It’s a bit cute of Meagher to choose to call the rule in Jones v Dunkel that in Armory v Delamire as there are actually two principles for which AvD is well known, the other being that as a mere finder the plaintiff could bring the action in trover against the goldsmith to whom he had handed the ring over.

  19. Posted February 12, 2011 at 11:23 pm | Permalink

    PS: the comment above is directed to [email protected] and Nick [email protected] And now I suspect that I’d got the idea of next friend from a misreading of that article anyway.

  20. Posted February 12, 2011 at 11:34 pm | Permalink

    Yes, it’s not exactly a lengthy judgment:

    http://www.bailii.org/ew/cases/EWHC/KB/1722/J94.html

    Would that judgments in other leading cases were so short …:)

  21. Posted February 13, 2011 at 4:25 am | Permalink

    [email protected] Perhaps short, pithy judgments are a sign of competing courts? Though I suspect the expense of written materials had something to do with it. (Not mutually exclusive reasons.)

    The king’s judges competed with the local knight/squire courts too. It has long struck me as a reason for the Runnymede 1215 “jury of peers” compromise. Yes, ok, you can have your traveling judges — in fact, more please — because we all find them very useful but none of them can sentence any of us until our peers have found us guilty.

    [email protected] Prices were very stable for a long time: a result of precious-coin money and a lack of debasement of the coinage. The two great periods of inflation have been the C16th (flood of silver from the Americas) and the C20th (fiat money). Back in the medieval period, the ‘king’s shilling’ was a deal of money (when William II Rufus summoned all freeborn males owing military service, his main advisor rode down the ranks and everyone who paid him a shilling could go home) and fines could be as low as a penny.

  22. Nick Ferrett
    Posted February 13, 2011 at 6:58 am | Permalink

    Oh, I missed the subtlety in the title.

  23. Nick Ferrett
    Posted February 13, 2011 at 7:06 am | Permalink

    I love the name “Assizes”. Years ago when someone in a position of some influence asked me what I thought the Federal Magistrates Court should be renamed, I suggested the Commonwealth Assizes. The idea didn’t really get a lot of traction.

    Lorenzo, I figured that much out about the money supply when I was looking at some evidence to support my comment. If anyone’s interested, this is a very interesting website on the topic.

  24. Posted February 13, 2011 at 9:21 am | Permalink

    SL @23

    Thanks for finding the media neutral ctation and more accessible: the ER pdf is misindexed in the ER files as “Armoy.”

    One reason for the brevity in this instance is that it really is a report rather than reasons for judgment. Strange may or not have actually been there.

    Strange’s reports were published in 1755 in 2 volumes from his notes after his death.

    I can’t track down the exact link but I read somewhere that Strange’s reports were considered somewhat too brief but nevertheless authoritative.

  25. Posted February 13, 2011 at 10:47 am | Permalink

    [email protected] That is a useful site for clear explanation. I like the ‘how much time did it take to earn x’ indicator for changes in standard of living because it is clear and vivid. Matt Ridley uses it particularly well here.

  26. kvd
    Posted February 13, 2011 at 12:31 pm | Permalink

    Technology is a wondrous thing, but how far into the future do you wish to take it? Geo-location microchips are now in council dustbins (careful LE!) and could be for dogs (probably are) – so if you received one at birth, all that data could be married up on demand as to “where were you sir, on the night of the 24th?”. Most criminal activity would have to cease, except for the manufacture and implantation of “jailbroken” chips, of course. There’s half the law gone.

    As a side benefit, no credit cards needed, car rego based on miles travelled, view your place in the queue for the liver transplant (just like a friend of mine could log in and check production progress of his new car) and never ever get lost in the woods. Divorce investigations from your own TV screen.

    But applied to court process, I expect it will lead to the same poor old judge being able to handle more cases, albeit at less “community cost per unit”.

    Progress. What a wonderful thing!

  27. kvd
    Posted February 13, 2011 at 1:06 pm | Permalink

    On those voluminous document discoveries, and voluble barristers: why not impose a “word tax” based on OCR and voice technology?

    Give each party a suitable base allowance, then really make them pay for what they produce. It’s all about technology-driven efficiency.

  28. desipis
    Posted February 13, 2011 at 3:36 pm | Permalink

    Generally speaking, the other side produces thousands upon thousands of documents which you then have to go through and work out which are relevant. Providing copious discovery is a well-known tactic of drawing out a case and making it more expensive. Of course the lawyers have to go through the reams of documents and the client has to pay for that.

    That definitely sounds like an area where technology could improve things. I hope discovery in this day an age is done via electronic copies and not printed ones.

    I’ve been spending a bit of time lately thinking about who ought to bear the cots of the legal system.

    I’d argue that the costs should be paid by those who cause them. In cases where one party has clearly done wrong, it should be that party who pays. If it’s unclear in the case of a contract dispute then the contracting parties should share the costs. If it’s unclear in the case of complex legislation the state should bear the costs. If it’s unclear due to previous judicial precedents, the costs should come out of the judges wages.

    Ok, maybe not on that last one.

  29. Nick Ferrett
    Posted February 13, 2011 at 4:02 pm | Permalink

    I’d argue that the costs should be paid by those who cause them. In cases where one party has clearly done wrong, it should be that party who pays. If it’s unclear in the case of a contract dispute then the contracting parties should share the costs. If it’s unclear in the case of complex legislation the state should bear the costs.

    Desipis, all of that happens at least to some extent.

    Generally the unsuccessful party (i.e., the one judged to have been in the wrong at least by resisting the law suit) has to put something towards the other side’s costs. The problem is, a party who gets a costs order in its favour rarely gets reimbursed more than about 60%. This is because the people who work these things out (costs assessors) take a view about what is reasonably to be charged by lawyers which is significantly at odds with what the market determines.

    i don’t know about other states, but in Queensland we have the Appeal Costs Fund which will sometimes reimburse people for legal costs if something has gone wrong in the judicial process so as to make it reasonable for them to have run the litigation even though the have lost.

  30. desipis
    Posted February 13, 2011 at 4:46 pm | Permalink

    This is because the people who work these things out (costs assessors) take a view about what is reasonably to be charged by lawyers which is significantly at odds with what the market determines.

    In what way do the costs significantly differ: estimation of number of hours; rate per hour; scope of work? Or are the costs actually charged to the clients not necessarily representative of the work done rather the apparent value of the outcome?

  31. Patrick
    Posted February 13, 2011 at 4:59 pm | Permalink

    Desipis, that is touchingly naive. I regret to tell you that to date, technology has made discovery far far worse, as parties dump gigabytes of emails and files on each other.

    Indeed there is a real argument that discovery must be limited, and radically so.

  32. desipis
    Posted February 13, 2011 at 5:02 pm | Permalink

    With regard to the unfortunate DJ, it sounds like something that an insurance against legal expenses could cover. I’ve had a work colleague who came out from Germany explain that it’s quite common over there for people to have, to cover the costs of legal expenses they might incur. I think the example given was someone on a bicycle crashing into you and putting you out of work. The cost of the legal action to sue for damages would be covered by the insurance.

  33. desipis
    Posted February 13, 2011 at 5:10 pm | Permalink

    Patrick,

    I guess I was focusing on the implication in LE’s comment that it was the lawyers who went through all that data, rather than using technology (and data/information experts) to do all the heavy lifting. I realise that technology is driving the problem, I just think it needs to be part of the solution too.

  34. Nick Ferrett
    Posted February 13, 2011 at 5:27 pm | Permalink

    Desipis @36, there are two main areas of reduction. Assessors will usually allow a lower rate per hour than what is actually charged. They will also normally take the view that only some of the work done is necessary.

    Patrick is absolutely right about technology and the problem with using things like data searches is that it doesn’t meet the technical standard required of discovery. You can’t be confident that you will turn up every document which meets the criterion of relevance to the proceeding. That said, you can’t have confidence that humans will be able to make the assessment accurately either.

  35. Posted February 13, 2011 at 8:14 pm | Permalink

    I worked on a big case where there was lots of money at stake, and therefore though that is not always necessarily the case, put up by those funding the litigation. This predated PDF/OCR scanning, but documents were exhaustively indexed as to subject matter (well, heading, at least), type of document, authors and addressees, etc. Lawyers then went through the sets of documents which were collected in this way.

    In my opinion, though indexation as a finding guide was useful, reading such sets assembled by such winnowing was a misleading convenience. Frequently it was more helpful and informative to read the original files in the way that they had been put together by those responsible for them – collocation and context often make a lot of things clearer – documents plucked out of context will quite often mean almost nothing.

    The conclusion I offer from this is that the benefits of automation can be exaggerated.

    Further, and I don’t mean this as a comment in any specific way on LE’s fragment of [judge’s] associational memoir, but judges who sift through masses of documents in the absence of the parties or without exposing the judge’s interpretation to argument and submission take a bit of a risk, including on natural justice grounds. Unfortunately, it’s mostly a risk to the parties rather than to the judge.

    The default position in the Evidence Act that a document admissible for one purpose is admissible for all was a bit of a miscalculation in this respect.

  36. Posted February 13, 2011 at 8:30 pm | Permalink

    PS: LE, there are soooo many things that can make litigation expensive. Generally speaking, it will be the party with the deeper pockets which will seek to do that, either to wear the other side down, or to create a massive costs risk which the other side can less afford to contemplate. If you have two deep-pocketed parties, then it’s trench warfare like WWI. Then every inch is contested. Neither side (and particularly the defendant, since by definition the plaintiff is generally the one who is looking to get something out of the proceedings) makes any concession without an interlocutory skirmish or, even more artful, the interlocutory skirmish avoided by the last minute retreat. And so it grinds on…

  37. Posted February 13, 2011 at 8:35 pm | Permalink

    [email protected]

    That’s why I wasn’t talking about anything you did. But judges have not been unknown to go on frolics of their own. It’s risky because sometimes there is a reason why the point which seems glaringly obvious to a judge and a “quick way home” has not been put to them – often because the party which might have put it is well aware that the other side has an answer to it.

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