About the report “Justice: bring digital in”
The Montaigne Institute recently published a report entitled “Justice: bring digital technology in”. I had the honor of being able to contribute to its drafting as a member of the working group chaired by Guy Canivet. I answer below to three questions asked by the Montaigne Institute. The English version of this text can be found on the blog of the Institut Montaigne (to read the interview in English click here).
What is the current state of affairs that can serve as a starting point for a reflection on the digital transition in the field of justice?
If it was necessary to draw up an inventory, it would most certainly be that of a deep crisis in the judicial institution. It is frequently noted that the courts are both overloaded and under-equipped, that they suffer from a chronic shortage of personnel, and that the current organization of the judicial system is inadequate.
The current digital transition is therefore grafted onto an already degraded situation. It manifests itself not only by the appearance and development of increasingly sophisticated technologies (artificial intelligence, blockchains, etc.) which will lead to a profound modification of the work of lawyers, but also by the multiplication of “start-up of law “,”Legaltechs», Which offer innovative services to litigants. It is now clear that services not offered by traditional actors, including the State, will sooner or later be offered by start-up as long as there is a viable business model. For example, it is not currently possible for an individual to file a complaint online with the district court. A start-up, which has been very successful, now offers this service online and is responsible for issuing requests to the competent court itself. Other platforms offer online dispute resolution methods, whether mediation or arbitration, possibly bringing together litigants who have suffered the same damage. For justice, the stakes are high if it does not want to be overwhelmed and neglected.
It is true that technological innovation imposes difficult challenges. Artificial intelligence tools will make it possible to automate more and more repetitive tasks, which will relieve the burden on judges and court offices. However, the idea of “algorithmic justice” arouses a lot of reluctance. This concern is linked to the difficulties posed by what is called “predictive justice”, ie the possibility, thanks to the tools of mass data analysis, of developing statistics on the chances of success of a procedure. If these statistics can be a useful tool for judges and lawyers, it is possible to fear their influence on judges, who could be gradually led to lose interest in the particularities of the cases they have to decide.
How to explain that the public service has fallen behind and what are the feelings of the litigants on this subject?
Justice suffers, as we know, from a real lack of material and human resources. We will certainly have to invest, train, recruit. But it will have to be done by taking real account of the expectations of the users of the public service of justice.
As part of the work of the report Justice: bring digital in, a field survey was carried out among individuals who have had recourse to family justice in the context of a divorce and SME managers who have been confronted with commercial justice. The objective was to better define their expectations and to obtain their point of view on the use of technologies (videoconferencing, dematerialization of procedures, predictive justice). It appeared that the expectations of litigants are structured around a number of strong ideas: authority, trust, simplicity, loyalty, credibility, accessibility, cost, time, predictability, humanity, practicability, efficiency, effectiveness and comprehensiveness. It is on the basis of these imperatives that the reforms now necessary should be considered. And digital technology can make it possible to meet such expectations.
What courses of action do you recommend for integrating new technological tools?
The stake, today, for justice, goes beyond the modernization of the existing computer equipment. The public service of justice must take full advantage of the opportunities offered by technological advances, so as to offer litigants an adapted and quality service.
Thus, the information and reception of litigants could be very significantly improved by the implementation of new artificial intelligence tools. One could, for example, imagine that a “bot” gives online, to the litigant, all kinds of essential information: competent jurisdiction, applicable law, chances of success of such or such request … It should not, in this regard , deprive oneself of the incredible contribution of mass data analysis tools that will, once theOpen Data judicial decisions implemented, to have valuable information on the state of the case law. It will simply be necessary to think about a reasoned and ethical use of these tools.
Online referral to courts should be generalized by giving, again, the possibility for the applicant to benefit from the assistance of a robot to draft his request, at least in cases where legal representation is not compulsory. Legal aid requests could be formed and processed online, using a platform connected to other state public services.
Likewise, the dematerialization of the trial by the electronic processing of disputes could greatly improve the efficiency and speed of case processing, or even relieve the parties themselves who could, when appropriate, not have to appear or appear. appear by videoconference. The generalization of the use of videoconferencing would, moreover, be likely to resolve the problems posed, in certain regions, by territorial remoteness while leading to rethinking access to justice and its territoriality. Judicial proceedings could also be recorded and made available to the parties, or even to the public. Finally, one could undoubtedly imagine that directly enforceable judgments be rendered orally, in the wake of multimedia hearings, and recorded on a medium given to the parties.
Finally, it will be necessary to be attentive to the evolution of very innovative technologies, such as blockchains, so as to be able, if necessary, to make the most of them. To date, there are initiatives to offer alternative methods of online dispute resolution making it possible to effectively and automatically render the agreements or arbitral awards adopted on a blockchain.
Obviously, such an ambitious strategy will require appropriate governance. The report recommends that the justice modernization program be entrusted to a single high-level authority, which will take the decisions and carry out experiments, if necessary. A “digital” department could be created within the Ministry of Justice, whose mission would be to analyze the data of the judicial organization and provide its actors with useful activity indicators. Finally, an independent advisory body, bringing together a variety of skills, should lead a continuous dialogue with professionals and users of justice, in order to monitor technological and sociological developments in the sector.
All this will require a significant financial commitment within the framework of a long-term investment plan, which could be adopted by a multiannual programming law for justice. In all cases, the share of innovation spending in the IT spending budget of the Ministry of Justice will have to be increased.
Florence G’sell (www.gsell.tech) is a private law associate and professor at the University of Lorraine where she teaches mainly the law of obligations, business law and comparative law. A graduate of Sciences Po Paris, where she has been teaching for several years, she began her career in the American subsidiary of a French bank before joining an insurance company specializing in the coverage of major industrial risks, then choosing the university path. . Her research focuses mainly on business law, private law, dispute resolution methods and new technologies, which she approaches in a comparative manner, in the light of the rights of Common Law, including US law.