5.30 Innovation in the use of technology in the justice system has recently focused on finding ways of accessing what is known as ‘big data’. The inferential techniques being used on big data can offer great insight into many complicated issues, in many instances with remarkable accuracy and timeliness. The quality of business decision-making, government
administration, scientific research and much else can potentially be improved by analysing data in better ways.234
5.31 Researchers at the Hague Institute for the Internationalisation of Law studying big data’s impact on the justice environment have noted that these benefits are generally not being realised:
For most justice systems, the goal of court information systems is to get accurate statistics about workloads, disposition times, sentence rates, appeal and reversal rates, etc. However, our research indicates that existing court IT and organisational tools and mechanisms have limited capacity to extract valuable knowledge and insights from massive data sets.235
5.32 Ingo Keilitz, an expert consulting with justice institutions throughout the world on measuring and improving their performance, offers the following example of how big data could affect court administration issues such as court
consolidation:
232 See E. Richardson, T. Sourdin and N. Wallace, Self-Represented Litigants: Literature Review and Research (ACJI, Monash University, Melbourne, November 2012), available at
http://www.civiljustice.info/ (accessed 24 September 2013).
233 See Supreme Court of Victoria, Annual Report 2010–2011 (Supreme Court of Victoria, Melbourne, 2011), 54, available at
http://www.supremecourt.vic.gov.au/home/library/supreme+court+of+victoria+2010-11+annual+report (accessed 13 September 2013).
234 D. Bollier, ‘The Promise and Peril of Big Data’ (2010) The Aspen Institute, 2, available at http://india.emc.com/collateral/analyst-reports/10334-ar-promise-peril-of-big-data.pdf (accessed 14 September 2013).
235 G. Lim, ‘Courts and big data’ (2013), available at
http://www.innovatingjustice.com/blogs/big-data (accessed 14 September 2013).
76 Chapter Five – Technology and Timely Dispute Resolution
For example, court location data could be compared against a number of public databases with information from inside and outside the justice system including Zip codes, populations, demographics of the
population (race, age, disability), travel times between locations, numbers and types of cases heard by different courts, levels of courts, and availability of public transportation.236
5.33 The result of this analysis would allow advocates and opponents of various court consolidation models to consider the effect on distance and timeliness:
Results may allow advocates and opponents to compare various court consolidation models and say, for example, that the consolidation of courts from ten locations to three would increase the average distance and driving time to the nearest court from 3.1 miles and a ten minute commute to 4.5 miles and a fourteen minutes, where the overall average can be disaggregated by age of citizens, income levels, case type and so forth.237
5.34 In various forms of dispute resolution and in litigation, computer-assisted document coding and review, often referred to as ‘predictive coding’,238 for the analysis of large sets of data is likely to have a ‘game-changing’ impact on timeliness. The technology collapses the time (and costs) needed to review millions of pages of discovered material, to identify relevant aspects without devoting massively costly person hours.239 Until recently, as noted by the Australian Law Reform Commission (ALRC) Report entitled Discovery in Federal Courts, 240 discovery processes could contribute significantly to problems of delay.
5.35 Other, less sophisticated technologies exist that can organise legal discovery files to simplify and reduce the time necessary to review and analyse files.241 In the near future, all types of discovery may be lodged in the newer formats and require different arrangements. Already, many judges are taking advantage of the opportunity and requesting reviewed material with far tighter timelines.
236 I. Keilitz, ‘The Courts’ Big Data: What If Only?’ (2013), available at
http://made2measure.blogspot.nl/2012/11/big-data-data-analytics-and-access-to.html (accessed 14 September 2013).
237 I. Keilitz, ‘The Courts’ Big Data: What If Only?’ (2013), available at
http://made2measure.blogspot.nl/2012/11/big-data-data-analytics-and-access-to.html (accessed 14 September 2013).
238 M. Tamburro, ‘The Future of Predictive Coding – Rise of the Evidentiary Expert’ Findlaw (website) (25 July 2012), available at http://technology.findlaw.com/electronic-discovery/the-future-of-predictive-coding-rise-of-the-evidentiary-expert-.html (accessed 13 September 2013).
239 J. Markoff, ‘Armies of Expansive Lawyers, Replaced by Cheaper Software’, The New York Times (online) (4 March 2011), available at
http://www.nytimes.com/2011/03/05/science/05legal.html?_r=0 (accessed 13 September 2013).
240 Australian Law Reform Commission, Discovery in Federal Courts (Consultation Paper No 2, November 2010) (ALRC Report), available at
http://www.alrc.gov.au/sites/default/files/pdfs/publications/Whole%20Discovery%20CP.pdf (23 September 2013).
241 Stratify, ‘Stratify Legal Discovery 6.0 Service Expands Discovery Capabilities and Increases Attorney’ Findlaw (website), available at
http://technology.findlaw.com/electronic-discovery/stratify-legal-discovery-6-0-service-expands-discovery.html (accessed 13 September 2013).
Chapter Five – Technology and Timely Dispute Resolution 77
Conclusions
5.36 As far as government’s contribution to the development of ODR is concerned, there are several government or supported national bodies that have been involved in the development of ODR. For example, they include the ALRC and various dispute resolution organisations that now specialise in ODR.242 As noted previously, some aspects of ODR have been addressed in several National Alternative Dispute Resolution Advisory Council (NADRAC) reports. For example, the On-line ADR Background Paper in 2001243 and the Resolve to Resolve – Embracing ADR report to improve access to justice in the federal jurisdiction in 2009244 provided an overview of ODR together with advantages, disadvantages and barriers to its development. In addition, there are several specific research reports that focus on online ADR.245
5.37 There are, however, issues about how technology can be integrated and used effectively in the justice system and more particularly in courts and tribunals that often operate ‘legacy’ systems with content management features that make it difficult to add and support more sophisticated systems. In addition, filing systems remain paper based in many areas, and there are cultures operating within and outside the litigation system that may find it difficult to adapt to newer technologies. Nonetheless, these newer technologies have the capacity to improve the time taken to deal with disputes by supporting the exchanges of material, enabling prompt exchanges to take place, ensuring that data is relevant and produced in a way that encourages sophisticated planning responses and by creating more innovative processes that enable people to access justice processes with greater ease.
Discussion Questions
What barriers exist to prevent the introduction of technological improvements?
How can the justice system respond to technological changes to improve timeliness? Is a coordinated response useful?
242 Telecommunications Industry Ombudsman, available at
http://www.tio.com.au/publications/TIO_talk_issues/30/30.6.htm#onlineadr (accessed 30 May 2011).
243 NADRAC, On-line ADR, Background Paper, 2001, 14-16, available at
http://www.nadrac.gov.au/publications/PublicationsByDate/Documents/Online%20ADR%20B ackground%20Paper.doc (accessed 13 September 2013).
244 NADRAC, The Resolve to Resolve — Embracing ADR to improve access to justice in the federal jurisdiction, Report to the Attorney-General (2009), available at
http://www.nadrac.gov.au/publications/PublicationsByDate/Documents/TheResolvetoResolve .pdf (accessed 13 September 2013).
245 See NADRAC, On-line ADR, Background Paper, 2001, note 6, available at
http://www.nadrac.gov.au/publications/PublicationsByDate/Documents/Online%20ADR%20B ackground%20Paper.doc (accessed 13 September 2013).
78 Chapter Five – Technology and Timely Dispute Resolution
Chapter Six – Changing Processes to Support Timely Dispute Resolution 79