Sunday, July 06, 2014

The eKantonrechter: direct digital court access for citizens

The Netherlands judiciary recently completed a digital procedure for everyday disputes. This blog explains how eKantonrechter was developed and implemented.

The procedure
The procedure is based on an existing provision, article 96 of the Code of Civil Procedure, giving court access to parties who want to put a dispute before a judge together. The procedure is consensual in the sense that parties agree  to put the dispute before the judge together. They can do so themselves, no legal representation is required. A judgment is guaranteed within eight weeks of filing. The disputes can be small claims of up to € 25.000, or labor, consumer or housing problems. There is usually an oral hearing, but the fixed, limited disposition time does not allow for hearing witnesses or otherwise thorough examination of the facts. 

Digital access
In part 4 of Technology for Justice, my book on improving justice with information technology, I have laid out some guidelines for web access to justice and courts. Communication should be based on understanding the information demands people have, given that they have a problem that needs to be resolved. Information needs to be understandable to people with an average level of education. The information provided needs to give people the confidence that if they follow the instructions, they will achieve results. 

Earlier experiment
Direct access to courts for citizens had been tried before. There was an earlier experiment, at least twenty years ago, to give citizens direct access to court. It involved a paper form that could be bought in a stationery shop, filled out, and sent to the court to file a claim. The court then summoned the other party, which was the beginning of a civil procedure. Judges struggled with the information people put in the form. Parties struggled with the complex procedural rules of an adversarial civil procedure, that were hard to explain and even harder to understand.

The new procedure
This time, the procedure was designed to start with a digital form. The parties, after agreeing to put their dispute before the court, each fill out a part of it. Because the procedure is consensual and not adversarial, the rules are less complex.  The procedure itself is conducted entirely over the internet, except for the hearing which is face to face in court. For authentication, parties log into the kiosk with DigiD, the Dutch government digital ID. For extra security, they get a text message with an access code. For firms, authentication works with eHerkenning, the government ID for legal entities. Lawyers log in with their Bar ID. One party takes the initiative, logs in to the judiciary's digital kiosk, and fills out the first part of the form. The system then provides a code, with which the other party can log in to this particular case. The other party then fills out the other half of the form, and submits it to court. The court then reviews the information for admissibility. As there is only one court hearing and the disposition time is limited, only simple cases can be admitted. After the dispute is admitted, parties can provide additional information and upload documents they want to present as evidence. The court fee is paid electronically as part of the submission process. Parties are also presented with optional time slots for the oral hearing. They can indicate when they are not available. The information from the forms is fed into the court’s case registration system and into the digital case file. The oral hearing is then set by the court. After the hearing, the judgment is uploaded into the digital case file.

Building digital access
My team, charged with designing and then building the new digital procedure, was determined to do better than the paper form. It was particularly important to get the forms right. We started with a workshop discussing the information the judges need to determine the merits of the case: what is the problem, what happened, did they attempt to resolve the dispute amicably, what is the claim, what evidence is available. We then designed different ways of asking questions lay people are capable of answering. Web technology offers ways of asking structured questions: yes/no, drop down lists, radio buttons. This information is accurate, and can be handled easily. However, it is rather poor in content. Asking for the story: what happened, what makes you think so, what is the background, provides much richer information, but it is not quite so manageable. We tested the different methods, on paper, with a test panel provided by the Dutch Consumers Union. We had devised fictional disputes, cases our panelists could use to fill out our forms: a contract case about a fading couch, another one about a labor dispute, and a tort case involving physical damage. This enabled us to check whether different types of disputes can be described adequately. With lots of feedback from the panel, we designed a digital form combining structured and unstructured questions. The panel came back, tested this form, and told us they needed more context and help in answering the questions.  We then added explanations and help information. For those who feel they cannot fill out the forms themselves, we added a link to the legal aid kiosk, the Juridisch Loket. The panel then came back to test the final product. They told us they could use the form easily. The eKanton procedure for citizens went live at the end of May 2014.

What comes next?

Devising a procedure is one thing, whether it meets the needs of those who seek justice is a different matter. Whether or how digital access to court is an improvement that will enhance access to justice is one of the major themes in the access to justice debate. It remains to be seen whether the eKanton procedure will be used by citizens. For the Dutch judiciary’s digitalization program, it was an opportunity to take a simple, existing procedure, digitalize it and learn about the process. This experience now feeds into the digitalization program for all other court procedures. More about those later. 

Friday, September 20, 2013

CTC2013 day 3: what's the big idea?

Bench and Chambers 2023 was the title of our judges' panel - Roberto Torres, David Harvey, Martin Gonzales and myself - on Thursday morning. Ten years ago, Facebook and Twitter did not exist yet and Money Claim On Line had only just started. So who can tell where things may be ten years from now? The panel speculated away, and tried to make some educated guesses on the way: no more court buildings, everyone, including jury members, will work from home, evidence will be displayed on the 3D screens we will all have in our homes by then. Brain imaging technology will change the way we determine guilt, big data (all those court decisions and other information) will bring performance analysis of courts and lawyers to the general public, and sentencing analysis to the courts. On line communication will be the norm, and the judges will be digital natives who can cope with all the technology seamlessly. Most of the court users will be self representing litigants. It was a great session, the audience was very engaged, and they just would not leave.

The big idea of CTC2013: e-filing, digital natives, SRLs
E-filing seems to be the big idea of this edition of CTC. It saves court staff capacity, and in some cases produced a 20% faster disposition, even with a double caseload compared to the baseline. The other big theme was the Digital Native. How to empower digital native court users was part of nearly every discussion, with the Self Representing Litigant (SRLs) a close second. Clearly, the future will be hard for tomorrow's lawyers, but also for tomorrow's courts. 
It is always a privilege to see where the discussion is going in the most technologically-experienced jurisdiction in the world. My impression is that some court systems in Europe are catching up quickly. I wish they would get together and exchange experience like the US courts do at CTC. Congratulations to the National Center for State Courts for yet another successful CTC.

CTC2013 Day 2: focusing on the users

On Wednesday morning, Karl Agen presented the results of a poll of the public's opinion of the courts. His slides are here. The report can be found here: People's idea of the courts as largely based on what they see on television. There are 73 different Law & Order shows on television right now. People associate courts with unnecessary lawsuits, inefficiency and bureaucracy. Advisory: customers want efficiency and respect at their point of contact with the courts, 73% think investment in new technology can make a difference, they want to do business with the courts the way they do with their banks, i.e. from home. 

In the afternoon, I was part of "the world's largest jury", in a trial to test display technology by the Center for Legal and Court Technology, led by prof. Fred Lederer. Our job was to decide whether, and if so, which of two people involved in some small scale road rage should be held responsible for an injury sustained by one of them. The test involved displaying a brick with alleged traces of blood and hair and a baseball bat with alleged traces of contact with the brick on a 2D screen, and on different types of 3D screens, from a 3D image camera. The members of the world's largest jury wore different types of 3D glasses. The jury voted by show of hands. I wondered whether the 3D projection made any difference to the outcome, but that was not the point of the exercise. 

Next, I attended what was more a class than a presentation, on e-discovery. This means that David Harvey and Daniel Garrie taught me a lot I did not yet know. Coming from a jurisdiction that does not have mandatory discovery, I look for those elements of this class that are relevant for handling electronic evidence in a more general sense, and for using electronic means to do so. 
 What you need to know may not be in the legible text of the document, but in its metadata. For instance, where an email was sent from, or when. Therefore, you want the document in native form. Lawyers also need to know their clients' business, including how they run their information services. Courts should be proactive in moving the e-discovery process forward, using case conferences and possible cost shifting. 
Methodologies include keyword searching using a white or blacklist, excluding duplicates, concept searching and predictive coding. The process needs to be geared by reasonableness and proportionality: is what is at stake worthe the effort and resources involved? Helpful: the New Zealand checklist, and model orders available in the 7th circuit of Northern California. The class was much more entertaining than can be gleaned from this very brief summary.

Wednesday, September 18, 2013

ctc2013 day 1:2 more or less effective discussions

Tuesday morning, the first education session in the tech for judges track. My colleague Martin Gonzales, federal judge from Denver, Co., speaks about the problems court users can have with e-filing. Clearly, we need to serve them as well as everyone else. The point of my own presentation is that courts and judges need to understand how they process information in their cases, in order to grasp what IT can do for them. Simplification will make legal protection available to more people, and the market for legal information is changing dramatically. 
The session by the Nebraska e-courts was a neat description of what it means to take small steps when developing IT in your court.
At lunch, with the judges panel to prepare our Thursday morning, 8:30 discussion on tech for judges in 2023, we hit it off right away with a discussion on sentencing guidelines and how to computerize them - for advisory purposes only, of course.
Flags here are at half mast after the Navy yard shooting. On television, discussions on how it could have been prevented follow the by now common pattern: how come agencies did not have the information that now turns out to have been available, and whether or not to have more gun control.
Next is a q and a-session on social media that I find hard to follow because it has the format of a game I don't know, the group discussions are not amplified and the light level in the conference room is too low to even see who is speaking. Therefore, what I pick up from this session is a little haphazard: Court staff are not allowed to make themselves known as such when using social media, and jurors can be held in contempt if they use social media while on jury duty. The central message, however, is clear: every court should have a social media policy. 
The final session for the day was about responding to the demand for disruptive technologies. This turned out to be an interesting discussion, mainly between court IT staff as far as I could tell. What challenges them most are things like the permanent shortage of bandwidth, iPads, and judges who expect their personal devices to be serviced by the court IT staff, in one case even on a Saturday. The term disruptive technology was used earlier by Richard Susskind, who identified ODR as a technology that disrupts the lawyer's traditional way of doing business. The most disruptive element I could glean from the discussion here are no doubt the judges, at least in the perception of their IT staff. Enough for the day!

Tuesday, September 17, 2013

CTC 2013 day 1: Ride the wave of change and go viral

day 1: ride the wave of change and go viral
CTC2013 opende with a keynote by Alec Ross, innovation adviser to Hillary Clinton and one of the whizkids on Barack Obama's 2008 election campaign. He pointed out some major trends: decentralization of power and loss of control. Those who are most adaptable to change can survive. Alec gave some interesting examples of the use of technology that took that context into account. The first was a project to increase crime reporting in drug-kartel-infested Northern Mexico. Denunzia Anonyma used encrypted sms messaging, and people started reporting crimes again using their cell phones. Next was the Icow app for dairy farmers in Kenya, used by the Maasai, an increasing their income by 30% by mapping cattle productivity. This app won a contest for the best African app.
Both these examples defy existing stereotypes of developing countries.
The 21st century is a terrible time to be a control freak. The way to go is to understand that loss of control and ride the wave, empowering digital natives, taking intelligent risks and be tolerant of mistakes. Last advice: give the naysayers credit, make everyone look good and share credit. If you do something that works, it will go viral.

Monday, September 16, 2013

CTC2013 preview

This blog left off in October 2011 after #CTC2011 ended. Today, as #CTC2013 is about to begin, it starts again. Meanwhile, technology has advanced.
This morning, my project at home had an important meeting. I participated from Washington, DC using Facetime on my Ipad. That was not possible in 2011 - well, not for me anyway. I think video communication will change the way we do court cases considerably in the years to come. As it gets cheaper, it may well become a means to provide more legal protection to more user groups for whom going to court is unaffordable right now.
Richard Susskind says the "high street law firm" does not have a future, it is not an affordable way of providing legal services. The future is not for corner shops, but for more supermarket-like setups. I wonder if that is also true for courts.
At CTC2013, I will be participating in an educational session on information technology for judicial officers. My talk will focus on how we process information, a topic largely overlooked in the  IT discussions. This session is part of a thread on IT for judicial officers. On Thursday, some of the speakers from this thread will do a panel discussion on tech for judges in 2023. I am still thinking about the themes to choose for this discussion, which will hopefully be interactive, since that is the added value of a panel.
So now, off to Baltimore! - and more in this blog tomorrow!

Thursday, October 06, 2011

A walk around the exhibition hall: lots of vendors selling lots of case management systems, now with e-filing integrated. There are firms offering telephone court appearance for a fee, interesting. The first evidence camera using 3-D imagery is here. Everyone’s favourite, the silicone rubber keyboard that is completely silent, is also dishwasher safe. The crew from the International Criminal Tribunal for the former Yugoslavia (#ICTY) consider ordering 50 for their courtrooms. I want one at home, too! I test a check-in kiosk for jurors together with someone who turns out to be the CIO for the courts in San Jose, California – Silicon Valley, that is. No, that location is not an advantage. The constituency is so connected, the courts are not, and there is a big problem.

Wednesday, October 05, 2011

Wednesday, October 5 2011

This morning’s keynote sounded innocuous enough: Ending the Revolving Door of Justice: How Technology Helped One Judge Reengineer His Court. Therefore, I almost gave it a miss. That would have been a mistake, for judge and former public defender Steven Leifman of Miami-Dade county in Florida had an extremely interesting and moving story on how to divert people with a mental disorder from the criminal justice system into the health care circuit. More and more people in the criminal justice chain turn out to have a serious mental disorder. Keeping them in the prison system is not going to help, but sometimes a little mental health care does the job, at much lower cost. In the present climate, and in the U.S. context more generally, that is an unusual topic. My favourite quote: nothing makes a conservative liberal more quickly than being broke. Leifmans point was that diverting people is much cheaper than keeping them in prison. Where the technology came in was to provide the metrics on people with a mental disorder and how they moved through the criminal justice system, and at what cost. He also pointed out that judges have a moral authority they can use to raise issues. And finally, the observation that more veterans from Afghanistan are now committing suicide than there are casualties on the ground in Afghanistan. His program tries to identify them and give them the care they need, so they do not end up in the US criminal justice system.