Ronan Hynes: Back to the future – the growth of litigation technology
Ronan Hynes, partner at Sellors LLP, considers the accelerated growth of litigation technology arising out of Covid-19.
The recent call for action by the Restaurants Association of Ireland to deal with commercial landlords (some of whom continue to charge their tenants full rent rates during the Covid-19 pandemic) highlights the need for a better way to resolve legal disputes swiftly between parties outside of the court system. A fast-tracked arbitration system was called for but what if such a dispute could be mediated online, be user friendly, accessible and cost effective?
Covid-19 has catapulted the role of technology into the legal profession and forced all stakeholders to engage with legal technology at a greater level than ever before. The pandemic has also highlighted some of the limitations of the current courts system. What happens, for example, when the courts are closed due to a global pandemic? As leading commentators have asked are they not an integral service to society rather than just a physical place?
Virtual applications and trials, software technology, online courts and legal tech solutions such as artificial intelligence (AI) and others have led some to believe that robot judges and lawyers will be the new reality in the future, posing unique challenges to the practice of law, court rules and the legal system as a whole. This article sets out some of the advances in the use of technology in litigation disputes, considers the pros and cons, and tentatively predicts how the future will unfold.
Globally emerging legal tech hubs can be found in the UK, US and Singapore. The Irish legal tech scene is also growing with the recent news that Bundledocs, a Cork based technology company, has raised €600,000 in funding with Enterprise Ireland and private investors for a document bundling software product for the legal sector. So whilst the legal tech market is still very much in its infancy compared to other sectors, the profession is seen as ripe for significant disruption.
Digital dictation tools such as Dragon, Otter and others offer real-time transcription and are now common workplace tools for members of the legal profession. In court, electronic document bundles and automatic real time transcription by a stenographer during court proceedings already exist. But consider the possibilities if live transcription were connected to software which could cross reference the oral evidence given in court with the pleadings and documents available in the case? This would allow technology to flag inconsistencies to a Judge or jury in oral evidence given by witnesses in court rather than rely on the forensic notetaking and memory of the legal teams.
AI and machine learning powered tools are now used in large, complex commercial disputes for e-discovery, a traditionally expensive and labour-intensive task for lawyers.
In the US, software prediction tools have been used to predict the outcome of Supreme Court decisions with correct predictions about 70 per cent of the time in comparison to 60 per cent when predictions are made by human experts using legal reasoning.
Court use of technology
In October 2017, the Irish Supreme Court broadcast its first ever judgment in the history of the State. Online broadcast trials are common in the US. In the UK, the English judiciary’s YouTube channel recently hosted a live stream from the Court of Appeal. The broadcast of court hearings, particularly at the highest level, promotes the principle of transparency which is fundamental to the concept of open justice and public confidence in the legal system.
In April 2020, the Irish Ccourt system embraced the use of virtual applications and hearings due to the Covid-19 crisis with reported great success. Secure technology has allowed geographically remote lawyers to attend Court more easily. These hearings are held in a virtual courtroom using the Pexip app. The Courts Service, to its immense credit, delivered an unprecedented 450 per cent increase in the number of video appearance in courts. The burning question is whether this momentum can be maintained and put on a sustainable footing into the future.
With Brexit on the horizon, there will possibly be an increase of complex regulatory litigation. In its submission to the Irish Government, the Law Society of Ireland made the case for Ireland to become a leading centre globally for international legal services. The submission, lodged prior to the current Covid-19 pandemic, highlighted the importance of the increasing the use of technology in the courts system, including accelerating measures to take into account of the electronic commencement of proceedings, e-filing of pleadings, greater use of electronic trial bundles, internet streaming of court proceedings, and the virtual conduct of procedural hearings. It is now imperative that full implementation of these measures are accelerated as soon as possible if we are to make Ireland an attractive destination for international commercial law, financial services and dispute resolution.
Online Dispute Resolution (ODR)
Online courts are now a common feature in countries like Canada, Australia, China, and Singapore with ODR a growing phenomenon. For example, every year over 60 million disputes are resolved amongst Ebay users outside of the legal Court system. In the US, platforms like Smart Settle and Cybersettle utilise secure e-negotiation digital technology to settle claims quickly and economically making huge savings in claim resolution costs. In the UK, Resolver provides consumers with a free web service to pursue their grievances with over 2,000 organisations. In Ireland, ODR is growing but from a very low base. The Financial Services Ombudsman, the Personal Injuries Assessment Board and the Small Claims Court are exemplars of an accessible, user-friendly service for stakeholders to resolve disputes at little or no cost. These disruptive platforms have the potential to reshape the delivery of legal services and how disputes are resolved into the future.
Technology should not however be considered a panacea. Firstly, will it improve or impede access to justice? With the pervasive nature of internet, technology has unquestionably the ability to reach out to legal service users like never before and importantly reduce costs. ODR platforms offer a unique alternative to the stressful and intimidating setting of a physical Court room.
We must not also forget our Constitution, and the right of access to the courts for all citizens. Indeed, this right of access was fundamental to the establishment of the current voluntary Cervical Check tribunal system as an alternative to the current court system.
Admittedly, court rules and rules of evidence may need to be more pliable and adapted to take into account the innovative legal tech revolution. For example, when will court documents sworn electronically via DocuSign be permissible? Will e-filing of all Court documents become the norm and paper become a thing of the past?
Crucially, what also about funding? Legal technology (both psychical and technological infrastructure) will require significant investment and many high-end legal tech tools are used by magic circle firms only. Will the Courts Service obtain the significant investment it needs to roll out an ICT modernisation programme for our courts system on a national level.
Whilst the potential for AI and machine learning in litigation are exciting, there are, of course, limitations. We have seen this week with the Leaving Certificate results the difficulties that can arise when applying detailed algorithms to a set of circumstances. Such tools are only be as good as the quality of the data set and input from the human lawyer. Privacy and cybersecurity are also a threat for any technology system.
Interestingly, a report commissioned by the Law Society of England and Wales on AI and the legal profession found that currently lawyers do not yet fully trust the data and insight that these systems can provide nor do they have the skills or training necessary to fully utilise the benefits of such technology.
Predictions for the Future
In the 1985 cult movie, Back to the Future, Doc, the scientist, infamously remarked: “If you put your mind to it, you can accomplish anything.” Covid-19 has brought the legal sector kicking and screaming into the twenty first century. Let’s not go back in time like Marty and Doc but build on the very significant progress made during the past 6 months to ensure access to justice for all citizens in challenging circumstances.
Whilst robot judges and robot lawyers may not happen anytime soon, there is an inevitable shift in the litigation landscape to one centred on technology, empowering both clients and legal professionals to resolve legal disputes efficiently. We are moving towards the digitization of disputes in the years to come. Settlement of modest high-volume consumer disputes will likely be conducted online in the future in a user friendly, cost effective manner. In complex and high value litigation, trials conducted entirely through the medium of technology without the trusted pen and paper will become the norm. Whilst technology has the potential to increase accessibility to the law and justice, it can also alienate if it does not sufficiently cater to the real needs of the most vulnerable citizens. The critical thing to understand is that lawyers and human beings are key to utilization of litigation technology. The challenge therefore is to paradoxically humanize the law more than ever before through technology.