COVID-19 and the Impact of Technologies on the Justice System
COMMENTARY #16 • MAY 2020
Modern justice systems are composed of rituals and practices. Some of them are imposed by law, some others are habits or routines. Legal professionals often complain about such rituals and practices, highlighting how several activities, such as document deposits, document requests, and payments could be faster and smarter using some popular application, available in our everyday life. A need for innovation is constantly heard through the corridors of courts.
However, even if judiciary bodies and governments agree with the need for innovation, they are reluctant to the use of the most popular tools, highlighting the risks related to transparency, data governance, privacy, third-parties control, fairness and access to technologies.
For these reasons, many justice systems have developed their own applications and have implemented their own strategies according to their specific needs. For instance, many countries developed several strategies, causing inhomogeneities, within the same justice system. The result is a set of several apps, and databases, guidelines and rules. Every court has its single and unique platform that needs an introduction, a test phase, on-the-job training and feedback. That takes time, making the introduction phase, which is the most difficult one, a potential never-ending phase.
EU Justice Scoreboard 2019 presented a bar chart about the availability of ICT for case management and court activity statistics among the European member states. Data confirmed that three of the first four countries per GDP in EU (France, Germany and Italy) do not have case management systems and tools for producing courts activity statics in 100% of their courts. The same results are reported for the availability of electronic means for submitting claims, transmit summons and monitor the stages of a proceeding.
However, in the Italian crime jurisdiction one single platform permits documents exchange between police bodies and public prosecutors has been already implemented, whereas in civil, document exchange and formal deposits are already digitalized. Each phase of the civil trial is ruled by a dedicated application and the face-to-face interaction between lawyers and judges has been efficiently reduced, and (before the COVID-19 emergency) has been imposed only for particular hearings.
Moreover, case studies about the impact of technologies inside justice systems have been described by Susskind in his last book. The author describes many innovative projects and confirms how the use of digital platforms is permitting a successful exchange of documents, by reducing the typical paper-intense processes. More concretely, in England and Wales, online reforms to implement platforms for civil matters (from divorce to money claims) are under discussion. Furthermore, in China pro and cons of Online Dispute Resolution platforms for civil matters are already been tested and online courts are ongoing with promising results. That is a short view of the state of art, yesterday.
Today, concerning the above-mentioned countries, COVID-19 and consequent restrictions following the emergency, with the related social restriction, has imposed the suspension of the majority of the hearings, but some of them couldn’t be postponed. For this reason, the use of communication tools has been permitted. A simple example is the recent introduction of the decree of the Italian Ministry of Justice permits the use of Skype Business and Microsoft Teams for hearings, as same as in UK and France. In Germany, the use of such communications tools had been formally permitted in civil in 2013, but yet not fully implemented.
Not only national courts have adopted measures to ensure the continued of the justice. Indeed, with the 2020/11 press release of the 23 April 2020, the International Court of Justice, the principal judicial organ of the United Nations, continues to perform its functions despite the containment measures put in place around the world to halt the spread of the COVID-19. Through the use of modern technologies, the Court has made the necessary arrangements to hold virtual meetings and to adapt its working methods to the need to work remotely during the current pandemic. In the past weeks, committee meetings of the Court have taken place through videoconference. On 22 April 2020, the Court held the first virtual plenary meeting in its history.
Without the COVID-19 restrictions, the use of these technologies would have needed: large political discussions, administrative reforms and public tenders. Recently, as highlighted by Harari, emergencies fast-forward historical processes. In fact, in many cases, decisions that in normal times could take years of deliberation are passed in a matter of hours. On the one hand, emergencies impose to think out of the box and find solutions. Priorities change, the conflict between rights and interests is somehow resolved, and old obstacles are overcome. On the other hand, the risks stay the same. The main difference is that now they are not more discussed ex-ante, but instead, they are controlled ex-post.
The issues for the next future could be the followings: i) what to save, ii) what to change and ii) what to do when the emergency will be completely over?
Save the creativity and problem-solving attitude. What made possible the brute force used of technology inside the justice system, facing some issues before their discussion reversed the approach: first do than debate. That approach is an administrative strength.
Change the terms of the agreement. Technologies used today for facing the emergency could arise issues related to data governance and control. However, a new agreement with the market players could save the tools with just changing the terms of the agreements. Justice systems have their commercial and political power as an asset.
Do smart planning. Some existing technologies are relative actual and may need just the final step, whereas some others are old-fashioned and abandoned. Considering the announced social and administrative reconstruction, governments would have to deal with the state of art.
And what about artificial intelligence (AI) tools applied to legal services?
Unfortunately, even if researches tested techniques of information extraction from legal text, and proposed justice prediction approaches, currently, justice administrations seem to face more urgent issues, making the introduction of such technologies difficult to happen in the next future, even if some projects are ongoing.
Moreover, the next AI winter has been already announced. The hype around AI, and the related public and private investments, will reduce. The risk for the legal system is to lose the opportunity. Sometimes there is nothing more permanent than provisory solutions. Maybe, the time to impact with courage on the justice system has arrived.
 EU Justice Scoreboard available the 31 March 2020 at the following official web site: https://ec.europa.eu/info/sites/info/files/justice_scoreboard_2019_en.pdf.
 No data are reported for UK.
 The EU Justice Scoreboard indeed confirmed that: “the ability to complete specific steps in the judicial procedure by electronic means is an important part of the quality of justice systems because the electronic submission of claims, the possibility to monitor and advance a proceeding online can ease access to justice and reduce delays and costs. ICT systems in courts also play an increasing role in cross-border cooperation between judicial authorities and also facilitate the implementation of EU legislation, for example, on small claims procedures”. ibidem, p. 78.
 R. Susskind, Online Courts and the Future of Justice, Oxford University Press, 2019.
 L. Zhengmin, X. Zhu, Study on the Online Dispute Resolution System in China, in proceedings of the 6th Int. Conf. on Energy, Environment and Sustainable Development (ICEESD 2017).
 Ministry of Justice Decree available the 31th March 2020 at: https://pst.giustizia.it/PST/resources/cms/documents/provvedimento_protocollato.pdf
 Ministry of Justice Decree available the 31th March 2020 at:
 Ministry of Justice Decree available the 31th March 2020 at: http://www.justice.gouv.fr/art_pix/DP_presentation_des_25_premieres_ordonnances_25_03_2020.pdf
 Web Article available the 31th March 2020 at:
 Web Article available the 31th March 2020 at: https://www.ft.com/content/19d90308-6858-11ea-a3c9-1fe6fedcca75.
 I. Bommarito, J. Michael, D. M. Katz, and E. M. Detterman, LexNLP: Natural language processing and information extraction for legal and regulatory texts. (2018).
 M. Medvedeva, M. Vols and M. Wieling, Using machine learning to predict decisions of the European Court of Human Rights”. Artificial Intelligence and Law (2019).
 L. Floridi, AI and its New Winter: from Myths to Realities. (2020).