Journal of Law, Information and Science
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by
Abdul Paliwala[*]
In this article Dr Paliwala examines the relationship between new technologies and their impact upon the people who use them. His central thesis is that often we are so concerned about the way new technology will function that we ignore the fundamental question of how these new technological developments affect the values of the legal system and the way people, in this case lawyers, judges, court officials and administrators, relate to one another. In developing this thesis, he briefly examines such developments as expert systems, litigation packagages, computer research data bases, and the video presentation of evicence and decision support systems.
___________________________
"The relevant questions are not those comparing computers to people, but those opening up a potential for computers that play a meaningful role in human life and work". Flores and Winograd 1986.
A variety of images are conjured up in any discussion of the role of information media such as computer technology and videotape in the courts. There is the image of the efficient tool, of the very limited robot, providing document processing, electronic transcription, time-tabling and electronic communication between the parties. Or there is the image of the lawyer or judge's assistant, improving the quality of decision making by providing better techniques for research, analysis and presentation of evidence. Finally, there is the super robot, HAL from 2001, who starts out by providing advice and assistance, but ends up by taking over the decision making process itself. Conventional wisdom would suggest that while many people are either enthusiastic or at least willing to live with the first two functions, they are wary of the last. I would like to suggest in this paper that the issues are more problematic, that the question of the relationship between justice and the information media is not simply one of the type of information technology which is involved, but the human and cultural environment in which it operates, and particularly of the relations of power which underlie its use. The most important question we should be asking about the new media in the courtroom is not what functions they perform, or how efficiently they perform them, but how they affect the way people - the judges and other court officials, lawyers and parties relate to one another, and how they affect the values of the legal system.
In this respect the issues are similar to those about the nature and role of information technology in society. There is a widely held view that the information technology "revolution" is leading to the development of an "information society" a new post-industrial stage of society. An optimistic utopian perspective expounded by Masuda (1985) suggests that this will lead to the development of "computopia" in which information technology will be used to relieve the tensions of industrial society, thus opening up an age of social and economic progress.
Yet, there is nothing to suggest that a fundamentally different society based on information technology will itself be progressive. However, others such as Morris-Suzuki (1986) have challenged the information society thesis, suggesting that information technology does not produce a fundamentally different society, but the same social system in which information technology is sued as a tool for enhancing existing functions and powers. Furthermore, most of this critique, which is from the left, suggests that the changes introduced by information technology merely further the interest of corporate capital and the state. A third line of theory eschews both the utopian simplicities and pessimistic continuities. It eschews classifications of societies in terms of clear cut stages of technologies of production, and instead concentrates on analysis of the impact of the new technologies as a new factor in the social system (cf Smart 1992). This may have different impacts in different arenas depending on the nature of that arena and the power relationship involved, which may both affect the way technology is used and be affected by it. There is no uniform dimension to technology, whether it serves bureaucratic efficiency at the expense of justice depends on the questions asked of it. (Feenberg 1990, Baudrillard 1983).
Thus, it is quite possible that states will use information technology to enhance their own powers of surveillance and social control of the population. Or big business will increase its economic power at the expense of small firms, workers or consumers. Nevertheless, in computing, big does not necessarily mean more beautiful. There is potential for public interest groups to develop countervailing information strategies. The extent of this potential depends on the way in which political and legal systems respond to information technology - for example through the development and use of freedom of information legislation. The innovative potential of information technology may occasionally be better utilised by new players than arthritic or otherwise non-dynamic big old ones. This is apparent in the computer industry itself with the lead of the big old firms such as IBM being challenged by newcomers.
Therefore, recent theoretical work has shifted attention from discussion of large issues such as whether there is an information society to examination of the particular structural influence of the new information technology.[1] Firstly, there is exploration of the ways in which new technologies affect social and economic behaviour. Thus, Marvin's (1988) historical study of the introduction of the telephone indicates that the technology has not merely allowed people to talk without physical presence, but affected the nature and intensity of the relationships involved in conversation, such as who communicates with whom, who has the power to be believed and who is an insider and who is an outsider. The fax machine and electronic mail have allowed law firms to expand on a global basis. Computer conferencing for example enables participants to share information on a co-operative and interactive basis. Video conferencing enables the overseas witness to be present in the courtroom (Maclean 1987). For clients, lawyers and judges, for example, the ability of one side in a dispute to present evidence using a litigation support system may mean a significant strengthening in the position of that party. But, more significantly, there may arise a state of dependency of the court on one party's information system. It is not merely the speed of efficiency of communication which is affected, by its very nature, as are the power relationships which are part of the processes of communication.
Secondly, information technology has an impact not only on social structures but on our systems of knowledge, of understanding society. There is a tendancy to re-define issues in terms of information and its communication. On the one hand, this may illuminate issues from a new dimension, on the other they may transform social values by measuring matters for example, not in terms of older values such as justice, but newer ones such as bureaucratic processing of claims that is, in terms such as their efficient functional performance (or "performativity" according to Lyotard 1979). Thus, it is very illuminating to see law as a system of communication of information, whose observance or effectiveness depends more on the effectiveness of the communication processes than notions such as "commands" of a Sovereign or coercive force of authority (cf Galanter 1983). In the case of the courts, much of their work can be analysed in terms of the flow of information, whether in terms of pre-trial litigation process - in which the court is largely a manager of flows of documents between the parties, or the trial process itself - in which it manages what and how the information is produced on behalf of the parties, the decision - which is communication to the parties about their future relationship, and the enforcement process - which also constitutes largely of communication of information (Adams 1972).
However, communication is not a neutral device but deeply affected by relations of power. Thus, the smooth progress of the procedure of the court is imbued with power relationships implicitly accepted by all associated with them - such as relationships between the judges and the court officials, between the court officials and lawyers and between all these and clients and witnesses.
In the rest of this paper, I would like to examine the way in which new technologies are likely to transform legal processes in the court room in terms of some of the questions about objectives, values and relations of power raised above.
Two considerations are relevant in any discussion of judicial administration. Firstly, if the legal professions are slow innovators, the judiciary may be slower still (Purnell 1990, Plotnikoff 1990). Judicial cultures, with notable exceptions such as India's public interest litigation initiatives, tend to be slow and conservative, sometimes with justification. The age of the higher judiciary will normally reinforce this tendency. Judicial administration which is often controlled by the judges themselves, may be at least equally so. There are normally no competitive pressures facing the judiciary, and yet there is a great deal of historical baggage which ti would not wish to discard lightly. Furthermore, the judiciary's role, at least in the common law world, is not to be proactive in initiating development and change, but to respond to events and ideas initiated by the parties. Issues involving information technology are unlikely to be initiated by the courts, and are much more likely to be initiated by the parties. It is therefore not surprising that initiatives for the use of litigation support systems, for example, did not originate in the judiciary, nor in the law firms, but were instigated by big computer manufacturers who found themselves to be in the position of parties in litigation. Nevertheless, this proposition is not without exception. The history of computerisation is notable for individual initiatives of people of all ages who are bitten by a computer bug. The remarkable system in Italy, which involved the early computerisation of court administration as well as the development of Italguire, the Italian legal information system, owes much to the energy and enthusiasm of the president of the Italian court of cassation. Nevertheless, whatever the nature and extent of judicial conservatism, courts world-wide have had to respond to two pressures towards the introduction of new technologies. They have had to cope with pressures of time and resources in order to keep up with ever increasing workloads - a situation which threatens their legitimacy as dispensers of justice. Additionally, there has been pressure from participants in the court process - by highly computerised clients and more recently by law firms who are dissatisfied with old fashioned procedures.
The most significant impact of IT until now has been on the mundane administrative processes of the courts. The word processing revolution has made document production a much more efficient process. In addition, there has been the gradual introduction of accounting and other management information systems. Areas in which there has been much slower progress have been systems for timetabling for enforcement of court decisions.
Yet these mundane administrative systems in themselves represent a fundamental part of the court's work (Heddeman 1988, Massey and Morgan 1988). As Eldridge Adams pointed out as long ago as 1972 in his study of computerisation of courts.
The courts are complex organisations, which store large number of complex files and have elaborate procedures to process those files. Thus courts are data processing systems and so turn to automated techniques and systems analysis techniques for help. Documentation plays a central role in the courts. For example, courts process documents: they are originated, extracted, copied, transmitted, edited, indexed, examined, analysed, stored, collated, and bound. Therefore, the nature of court documents, their flow, original, and effect are important parts of any comprehensive study of court operation (p1).
While word processing, administration and timetabling systems are significant in themselves, the integration of the computer with communication technologies can have a fundamental transformative role for court work. Computer assisted transcription systems (CAT) are a good example (Brisbane 1991, SCL 1992). By themselves, various devices available merely enhance the speed and quality of transcription. However, communications technologies make transcription just the start of a wider information system. The transcription can be instantaneously made available to parties, court staff and journalists. It can also be used with a free text retrieval data base to search for relevant items of information, for example what a witness said on a particular issue. Finally, systems exist which will link the transcripts with a video recording of the court process (National Centre for State Courts 1985, Maclean 1987, Landler 1991). Now you can in an instant not only read what the witness said but see the witness, giving the type of information about the witnesses demeanour and tone which typed transcripts cannot provide. Such devices can be of obvious value to both the parties and the courts, for example in going over the day's testimony, in formulation and processing of appeals, or in making a decision. The implications may be even greater if the technology is made available instantly to the law firm where the research staff can be carrying out research and feeding the results back to counsel through a communications link . This would transform the nature and quality of witness examination, enhancing the power of counsel in relation to witnesses. Of course, it may be only available to those counsel whose client can afford such information and communications systems. The development of such systems, if their implications are not fully examined and controlled, may instead reducing the time involved in the court process, effectively increase it: instead of improving the efficiency of the legal process, make justice one-sided if it is not available equally to both parties.
Time-tabling systems can have significant impacts beyond efficiency of organisation (Hedderman 1988, Leith 1991). An efficient time-tabling system may allow a court to determine its workload effectively, because it can instantly calculate the implications of what is happening in different courtrooms and arrive at optimum solutions. For example, the timetable can be instantly adjusted to take account of the fact that a case is taking longer than expected. When linked to a communication system, lawyers, parties and witnesses can be informed about any changes and consents to changes can be obtained. Similar considerations apply to document exchange systems. Word processed documents are currently largely exchanged through fax, although problems of authentication prevent fax documents being used for formal proceedings. However, once such exchanges take place via electronic mail, the documents can be stored and retrieved. They become an enormous resource for use by parties in the construction of litigation support systems. Let us take the matter a step further, and the parties and the courts are communicating with one another, adjusting timetable and exchanging documents in a communications web (SCL 188, Scott 1989). It will no longer make sense to restrict communications to these limited matters. Face to face meetings may be dispensed with where minor ancillary decisions are involved. Such meetings would only be justified where witness testimony, detailed argument and juries continue to be relevant. For courts and lawyers working under great pressure, the form of communication of information will therefore lead to a new emphasis on documentary evidence which will be exchanged and discussed electronically denoting a shift away from orality. The issue of video presentation of children's testimony has caused considerable debate about due process (Williams 1987, 1989; Morton 1987, Tracey 1989, Maclean 1987). Video conferencing systems for court proceedings are a further step towards dispensing with the production of witnesses in court (Plotnikoff 1990). Such conferences allow all parties to see and converse with the witnesses and vice versa (See EG UK Criminal Justice Act 1988 s 32a; Maclean 1987). In the US for example, experiments have involved live video conferences to eliminate the need for bringing prisoners to court to decide issues such as committal, remand and bail (Alaska Judicial Council 1985, San Bernadio 1985, Maclean 1987). The justification for this is that it would save the police considerable time and expense. It would also avoid security issues involved in ferrying dangerous people from police cell or prison to court. However, the question is raised whether this constitutes due process under the US Constitution. Is the person charged present before the court? Yet other concerns than due process may be raised in any discussion of video testimony. Analysis of judicial process suggests a strain between two roles of courts. One being bureaucratic processors of decisions where efficiency or Lyotard's (1979) notion of "performativity" have become the all important criteria, and the other being "majesty" in the theatre of justice. That is, courts perform subtler roles than mere dispensers of decisions, for example that implied in the traditional notation that "justice has to be seen to be done." It would seem that greater computerisation would aid the former role what would it do for the latter? In this context it is interesting to note that the Californian study seemed to suggest that prisoners were much more relaxed in a video conference than when they were actually present in court (San Bernardio 1985, Maclean 1987).
It should be noted that the two issues discussed above provide a potential for very different conclusions, even when involving the use of similar technologies. Video-linked transcripts could make the legal process more intensive and perhaps time consuming. On the other hand, video-conference testimony could save time, but raises issues of due process and emphasis the bureaucratic role of the court at the expense of its other roles.
Even the most straightforward or dumb automation processes have a potential for transforming the nature of legal work once they are linked into a web of communication. This potential is even clearer in the case of use of computers in qualitative legal work, for example in providing information on the law, as is the case with information retrieval systems, the use of litigation support systems for management of information involved a complex cases, or in systems for preparation and presentation of evidence.
Legal information retrieval systems such as LEXIS and WESTLAW now contain vast quantities of legal information which can be made instantly available in the courts. Such retrieval systems not only make legal information accessible more quickly but permit those with resources to carry out wider searches than would have been possible before. Furthermore, free text information retrieval systems based on searches for key words introduce a different approach to analysis and search of legal issues than do paper indices. They also allow statistical and other forms of analysis of legal information. The relative costs of such systems may further increase the widening gap between lawyers (and necessary parties) with different resources. Obviously judges can avail themselves of these devices as much as counsel. However, in the United Kingdom, the judiciary early perceived the issue of information management raised by these systems, in particular of the need to control an explosive growth of the information which could be presented to the court. Thus, Lord Diplock in the House of Lords in the Roberts Petroleum Case ([1983] 1 All ER 564) was not precluding the presentation of transcripts of otherwise unreported cases, but suggesting that permission would only be granted if the transcript contained "some principle of law" which was relevant, binding on the Court of Appeal and not contained in any other judgment. Their Lordships were consciously acting to preserve their power to define the form and content (or should we say the width) of the presentation of legal argument. The principle is very different in the United States where the new information systems appear to have compelled lawyers into ensuring that no precedent is missed out. The different responses to technology which arise from different legal cultures may actually promote the further widening of gaps in these cultures.
Legal information need not be the only electronic information to which the courts have access. Leith (1991) points out for example:
"Since the courts are at the hub of the relationship between the police, lawyers, probation and prison service, they stand at the electronic centre of this communication system."
Information could be obtained by the court electronically on a range of issues such as the criminal history of the accused and the availability of facilities for carrying out proposed sentences. This information web has the potential of increasing the power of state agencies in relation to those who are caught within it.
It is the use of new technologies in the presentation of evidence that issues of relationship of power between the different parties and between the parties and the court become particularly acute. There is no doubt that video evidence of the site of a crime or a process, or the use of computer graphics in the illustration of particular items of evidence can improve the quality of information placed before a court (Maclean 1987, Macotte 1989, Plotnikoff 1990, Tantum 1989, Mills 1991). An impressive example of this was the computerised simulation of the Delta 191 crash at Fort Worth, Dallas. The simulation involved graphic illustration of events such as the trajectory of the flight. Such systems are now being used increasingly in complex cases such as fraud trails and raise a whole host of legal problems (Marcotte 1989, Joseph 1987).
In addition, in cases involving complex and voluminous documentation for example, litigation support systems can be of enormous assistance in the preparation and presentation of cases. A typical system involves the scanning of many thousands or more documents into a computer and their storage as images on a CD-ROM. A short descriptive account of each document is also stored on a computer database. The user can then search for relevant documents by reference to a variety of criteria, and where necessary produce on screen or print out the document on a laser printer. Counsel can reproduce any relevant document as and when necessary and even produce graphic images based on data contained in the system (Bondy 1992). However, this is where the relationships of power enter the scene. If one party can illustrate its case with video, graphic images, computerised descriptions of the case and litigation support systems and other can't, the former is at great advantage. It is not surprising therefore that there have been disputes about whether the other party can have access not only to the documents involved but also to the system used in order to verify the documents or to challenge a particular computerised presentation (Aldous 1987, Leith 1991). Of course, court proceedings have historically been affected by an imbalance in resources between the parties, and in this sense the expensive new technologies can be seen as further imbalancing mechanisms. However, the issue is equally significant in defining the relationship between the parties and the courts. These new modes of presentation of evidence have often arisen, not at the behest of the courts, which can balance the issues as between the parties, but at the instigation of one or more of the parties. The courts, particularly in the British system are generally dependent on the evidence which is presented by the parties. Nevertheless, if the court wished, it could call its own expert witnesses or even do its own research. It may be that with information technology based systems involving enormous expenditure, the courts' dependence on the form of presentation by a party will increase. The issue may then be one of the extent to which the courts will use their powers of information management to maintain a balance between the parties and to protect their own authority.
Most of the systems described so far are aids to the court process. Even though they have significant effect on the legal system, they merely attempt to improve the information available in the process. However, systems based on artificial intelligence such as expert systems and neural networks would take matters a stage further in providing advice in the decision making process or even making decisions (Susskind 1987, Garner 1987, Bainbridge 1989, Bench-Capon 1991). Hardly any such system is in effective use in the courts, but I will use sentencing expert systems to illustrate my example. A number of such systems have been developed, for example the US Sentencing Commission's ASSYST system, Gruner's Sentencing Adviser or de Mulder's system in the Netherlands (Gruner 1989, Leith 1991). In the United Kingdom, David Bainbridge's experimental Computer Assisted Sentencing (CASE) system provides a good example of the issues involved (Bainbridge 1989, 1989a). The system deals with sentencing in magistrates' courts. It is divided into four parts. The first part is intended to determine, as a consequence of a series of questions and answers, the range of legally appropriate sentences that are possible in the circumstances of the case. For example, the system will automatically discern that a sentence of imprisonment is not appropriate for an offender 13 years. The second stage involves the user comparing the sentencing options produced by the first stage with typical sentencing options produced by the first stage with typical sentencing options in similar cases produced from a statistical record of sentences in a number of courts. The third stage involves a calculation of the actual amount of sentence based on further information about the nature of the offender, the nature of the offence and the other considerations taken into account in sentencing, and the fourth stage a determination of the sentence. The first part of the system is a decision support system rather than a decision making system in the sense that it asks the user to make the relevant decision on he basis of statutory information and Home Office practice of which the user is informed at each stage. What the system does is to navigate the user through a complex flow chart. It is only if the flow chart is wrong, that the user may be misled. Similarly, statistical tables only suggest typical sentences rather than dictate what the magistrate should do. In the final part, the user is asked to determine the sentence, and may depart from the recommendations of the system, but if she does so, has to state the reason for departure. While the system does not dictate, it encourages the magistrate to arrive at a particular view of sentencing. This could have been a uniform approach adopted throughout England and Wales as is urged by those who consider that geographical inconsistency in sentencing is a bad thing. In fact, the developer chose an intermediate approach. The consistency of the sentences would be checked against a local statistical database of courts in the area. Moreover, any sentenced given would become part of the database which would gradually update itself.
It is of course possible to take a critical view of such systems as not having the capacity to replace human decision making (Leith n1991). Yet, it is more interesting to see the development of such systems in terms of the policy options that they provide and of power relationships in the sentencing process. An expert system which attempts to make legal decisions ignores the complexity of the law. In comparison, the CASE system assists magistrates in arriving at their own decision. A crude approach to uniform sentencing could easily undermine the independence of the magistrates in favour of centralised consistency. The approach favoured by CASE avoids this, and yet produces a system in which magistrates are deliberately encouraged to seek a measure of consistency. The point is not whether expert systems should be developed and used, but that in their development and use there should be consciousness of their limitations as of the impact which they will have on power relations - for example, as between the magistrate and the computer, and as between the magistrate and the Home Officer.
Neural networks raise even more fundamental issues about computerised decision-making. Unlike expert systems, whose rules are apparent to the user, neural networks use a black box system approach (Feenberg 1990). Factors are fed into the network. There is no necessary pre-definition of the relationship between the various factors, but the system "learns" to adjust the significance of various factors depending on whether the end result is perceived as correct by the programmer. Unlike expert systems, which are based on a system of rules, neural networks operate on a basis of pattern recognition and potentially can deal with more complex relationships than expert systems. At present no sophisticated legal uses of such neural networks have been developed. It is however possible to imagine a neural network which takes into account such complex factors beloved of the realist school of jurisprudence as the attitude of the judge on particular questions as well as precedents and rules. Unlike expert systems, neural networks do not provide explanations, and can be highly problematic as decision makers. Yet they could be used by parties to predict decisions.
The systems described so far operate entirely for existing courtroom professionals. However, computer systems have the potential of assisting the user of such services. One significant way in which this can be done is in the provision of information to members of the public on a wide range of issues for which they currently have to seek legal advice. Whether this should be the role of courts is arguable. However, as the Colorado State Judicial Department "Access Centres" suggests, such systems could provide information to people on issues such as their rights on a particular matter, what they would need to do to commence litigation and actually draft various documents in order to enable them to do so (Plotnikoff 1991). Multimedia technology and the use of touch screens which enable such information to be provided in a user friendly way are beginning to overcome the problems of giving easy access to information for members of the public. Yet, they raise questions of priorities and the power of professionals.
Conclusions
Responses to technological change in the courts vary from an unquestioning acceptance of the gains to be made from technology and impatience with the slowness of our institutions in adopting change (Purnell 1990) to a more circumspect realisation of the need to define the objectives of changer and to manage it (Plotnikoff 1990). Unfortunately, such objectives are often taken for granted under such labels as efficiency. While research studies such as the UK Home Office's valuable series of studies on computers in magistrates' courts (Maclean 1987, Hedderman 1988, see also Plotnikoff 1900 for Canada and the US) provide much useful information on the best methods of introducing systems and the appropriate strategies to be adapted fro ensuring that change is acceptable to those involved, they seldom consider the wider implications of change for the legal system. In the circumstances, there is likely to continue to be a wide gulf between those who see change as a necessity propelled by the promise of efficiency and those who resist information technology because they see it as subversive of current practices. Yet, a proper consideration of the wider issues involved could provide the basis for a fruitful dialogue between the two groups. Any such dialogue should be based on the exploration of those aspects of computer applications which play a meaningful role in human relationships in legal decision-making. It should also emphasise the necessity for participation in the development of computer systems by all those involved in the process - whether as policy makers, operators and customers; of the computer enthusiasts as well ad the non-literate and sceptics. Without such participation, there is a possibility not merely of production of many white elephants but also of systems which pervert existing values. There are differences in possibilities and problems of information technology between the rich and the poor countries and within different cultural and legal systems, and issues need to be addressed within the specific context of each society, but the overriding issues are no different. The need for a proper dialogue is no less important! If such a dialogue reveals the limitations of current technology in modelling legal behaviour and legal understanding, this would not diminish its current significance, it will serve to reinforce its proper use from a sober judgment.
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[*] Senior Lecturer in Law, University of Warwick. Director of CTI Law Technology Centre for UK Law Schools and UK Law Courseware Consortium. This paper is based on work on Law in Information Soceity I am undertaking jointly with Andy Clark to whom I am indebted for many ideas. See generally Clark 1992.
[1] For and intersting exposition of these in relation to legal practice, see Clark 1992 Cf Katsch 1990.
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