Updated: Oct 30, 2019
At a recent conference in London attended by the UK’s judiciary, from the Supreme Court to the magistracy, a futurologist predicted a world of holographic judges and decisions made by robots using artificial intelligence. The room was impressed, and planning their early retirement until a magistrate from Manchester asked how holographic judges would be possible in a courtroom without a plug or Wi-Fi.
I’m not, therefore, proposing to look too far into the future when considering court disruption, but rather to examine disruption on our doorsteps. That is disruption as described for by Bower and Christensen in the Harvard Business Review article ’Disruptive Technologies: Catching the Wave’ back in 1995. Their premise was that if organisations fail to make the technological investments that future customers expect, they should expect low-cost competitive alternatives to enter the marketplace, addressing the needs of the unserved and under-served populations.
Sadly, many in the justice sector baulk at the idea of court users as ‘customers’, or that their role is to ‘serve’ those ‘customers’. They remain of the view that their institution is valued for its lack of innovation. They revel in bureaucracy and the significant budgets that can be secured by overstaffing the courts service. Those views are represented most strongly in the world’s failing courts, but I’m pleased to say that there is the lit tinder of hope which, with sufficient nurturing, might ensure that in the future courts can serve those most in need in their communities.
For true disruption to occur it needs to be combinational. That is, it needs to ‘fuse cost value, experience value, and platform value to deliver products anservices that make offerings from incumbents immediately unattractive or obsolete’.
Across the world we are seeing some examples of courts looking towards disruptive practices. The use of a virtual court by the DIFC Courts, allowing access from anywhere via a smart phone is one example of courts delivering their service in a way which is convenient to the community, and not the other way around. It is a part of a shift, visible in Dubai, Abu Dhabi, Singapore and Shenzhen, towards courts seeing themselves as a service rather than a place.
In addition to court-led innovation, online dispute resolution is also on the rise. Whilst this disruption has until now been led by the private sector, and primarily through the large online retailers, we are seeing meaningful progress through partnership by the Hangzhao Courts, a district which houses the headquarters of the world’s largest online retailer, Alibaba. Will the future of court disruption be a partnership between the private sector and the judiciary?
Many courts have implemented, with varying degrees of success, ‘intelligent automation’, which is hardly ‘disruptive’ in the Harvard Business Review sense of the word, but is a good first step for courts which may not have adapted their practices for decades. However, the peculiar passion of civil servants to secure ever bigger workforces and budgets, leads to ‘unintelligent manualisation’ – that is, the ‘intelligent automation’ projects run over budget, don’t deliver the desired outcomes and create the need for more staff and bigger budgets.
The reasons for the unwillingness of courts to embrace innovation, and particularly disruptive innovation, are many. However they are largely poor excuses for a lack of disruptive innovation – the upshot - a lack of public trust and confidence in the third branch of government and its ability to help the community. That can be seen in both the decrease in case filings in many civil courts, as well as the continued rise of arbitration (which is well suited to embrace disruptive innovation). We see a continued cost/benefit imbalance for many civil and commercial cases, making them uneconomic to pursue and, even if economic to pursue, we see systems try to close down the routes to litigation funding so vital to address the cost/benefit imbalance created by the system itself.
So what can be done to address this imminent crisis? Is it the need for holographic judges? Possibly, but not yet.
Let’s get the foundations in place for courts to enter the digital vortex. Let’s put the basics in place to support ‘combinational disruption’ across cost, experience and platform. Let’s sweep aside court leaders focused on their budget and staff, and support those committed to their community, to delivering justice in a way which serves the people, and not the other way around.
Let us destroy any hint of monopoly behaviour by the courts, lowering the cost of justice and, for complex disputes, let us open up a party’s right to fund justice as they see fit. Let us understand that the key to a court’s success are the team members whose job it is to help those in need, and let us empower them to help – use intelligent automation to remove drudgery, not increase it and look to a judge to registry staff ratio of 1:3 not 1:300.
Let courts with international parties embrace an international bench, allow courts to use the language most convenient to the parties, and at every opportunity encourage courts to collaborate with other courts, be it through using blockchain to speed international enforcement of judgments or work balancing between courts within a territory.
Will this happen? In my view, yes, but not universally and not quickly. The meeting in London last year of commercial courts from five continents showed a willingness to engage in a multi-lateral dialogue. Where that leads, and whether we will see an organisation setting standards for the world’s leading commercial courts (cf IOSCO for securities regulators), remains to be seen.