Richard Susskind may have a crystal ball, legally speaking. In 2019 he published a book called Online Courts and the Future of Justice; the prophecies of which have been debated and discussed endlessly. Whilst these conversations and subsequent holding of virtual trials were undoubtedly accelerated by the current pandemic, COVID-19 simply exposed an inefficient legal system.
We find ourselves in a situation that has forced us to change the way we operate. We need to find better ways of doing things. And face the disputed long held assumptions about eye contact, body language, and facial expressions not being effective unless experienced in-person.
But will we embrace and sustain changes, if and when society returns to resemble what it looked like in February 2020? Or are we moving towards a Judge Dredd culture, that allocates legal power to the few, or a Mad Max civilisation, which errs on the side of outlaws and lawlessness?
Few industries still rely on pomp, circumstance, and tradition. Most that do are public sector services where change comes about slowly, and usually only out of necessity. The legal profession has remained more or less the same since inception and is one of the last to embrace technology. Whilst some advancements have been made (e.g., project management software, electronic briefs, in-court exhibition software, video depositions), the fundamental way of doing things has not evolved, leading to a backlog of cases.
Pre-lockdown, the UK had 37,000 cases waiting to be heard in the crown courts and nearly 400,000 in the queue for the magistrates’ court. Some estimate that it could take 10 years to clear the backlog of the thousands of additional cases that have been added since March 2020, if they even go forward.
According to Victim Commissioner Dame Vera Bairds’s annual report, we’ve already seen prosecutors being asked to take a step back on prosecuting weaker cases so as to increase conviction rates. Plus, it’s likely that the substantial delays will lead to high victim and witness attrition rates.
However, there are some pockets of innovation emerging. The UK Supreme Court is now hearing cases via video conference, with proceedings and judgements being delivered live on their website. And the US Supreme Court started hearing oral arguments by phone in May, allowing the public to listen in live.
Looking ahead to when we might be able to reduce our pandemic vigilance, how should our legal system operate? Will the benefits of remote interactions outweigh the perceived benefits of offline and in-person exchanges?
It seems that measures that increase not only efficiency, but safety, will be the way forward:
- Continue to allow testimony to be given remotely if it reduces a victim’s anxiety about confronting their accused attacker, or if being in a familiar environment makes them feel secure.
- Support the right of a juror to participate from home, as individual circumstances may prohibit travel.
- Provide easy access to tools which help victims, witnesses, suspects, jurors and others who are not familiar with the law understand the processes and the role of evidence.
- Conduct virtual mock jury exercises to work out the kinks before going to trial.
- Take advantage of access to virtual focus groups to test the impact of evidence and the power of demonstratives, to see what will hold up in court.
- Use virtual communications tools, i.e., WhatsApp, SMS and webchats, along with Artificial Intelligence and Machine Learning platforms to complete time-consuming administrative tasks, so specialists can focus on what they do best.
And if Zoom backgrounds or arguing a case from your home makes the process feel less official, let’s build virtual courtrooms that mimic real ones. Imagine an environment that allows you to bring up case law references with a simple verbal command, seamlessly switch to pre-recorded depositions, or walk-through 3D re-enactments of crime scenes.
A visual, virtual legal Alexa.
Just like the medical profession, the legal and criminal justice professions will always need a level of human input. But we need to be smart about what that looks like. Without embracing the changes needed to keep up with a different world, we’re taking away the right for someone to have their day in court. This will lead to a further breakdown of the system.
We need to pivot now and have not only been given a once in a century opportunity to do so, but the means – from the technology to the mindset to the expectation – to make it happen.
Lisa Helfer is co-founder & chief communications officer at SFR Medical