An Ontario judge caused a stir at a legal conference
this fall when she discussed a recent paternity case in
which she allowed the use of Facebook to serve papers on
a defendant. The child's mother could not find a street
address for the father but did track him down on the
social-networking site. She sent him a message
accompanied by legal documents, and his reply was enough
to persuade Superior Court Justice Cheryl Robertson that
the defendant was aware of the suit against him.
Two estranged parties making contact through Facebook
hardly seems like earth-shattering news, but for a
conservative legal profession bound by ritual, it
represented a significant breakthrough.
For centuries, little has changed in the way courts
conduct trials, said Karim Benyekhlef, a law professor
at the Universite de Montreal.
He pictures a lawyer from the 18th century feeling
right at home pleading in most Canadian courtrooms. But
as excessive costs and clogged courts make it harder for
people to access justice, pressure is growing to tap
into the potential of technology to transform the
courtroom.
The Universite de Montreal last week inaugurated a
$6-million cyber-justice laboratory, directed by Mr.
Benyekhlef, to examine how technology can improve the
administration of justice.
The provincial and federal governments funded the
fully wired model courtroom. Researchers plan to stage
trials in which electronic document filing will replace
the mountains of paper usually generated and witnesses
will be able to testify via video. They will even
experiment with holographic technology to project a
three-dimensional image of a remote witness into the
courtroom. The biggest obstacle to moving the courtroom
into the 21st century is not the technology but the
legal profession's aversion to change.
"The root of the problem runs deeper," Mr. Benyekhlef
and his Universite de Montreal associate, Nicolas
Vermeys, wrote in a recent paper.
"It follows from a social and psychological
resistance to change, which is attributable to our
dependence on rules, practices and rituals that have
come to symbolize the justice system rather than serve
it."
When we think of the courts, we tend to picture
black-robed lawyers pleading before a gavel-wielding
judge, who commands authority from an elevated bench.
The ideal courthouse is an imposing structure,
preferably with pillars at the entrance. There are good
reasons for many of these traditions.
"Resources have been lavished on courthouses and
courtrooms in order to stress that the administration of
justice plays a central role in civic landscape and
imagination," Linda Mulcahy, a law professor at the
London School of Economics, wrote two years ago in a
paper arguing against a move towards virtual trials.
This reflects the fact that "the meting out of justice
is a special function of the state and not something
which can be dispensed just anywhere or on a whim," she
wrote.
The Universite de Montreal group has assembled a team
of social scientists — psychologists, anthropologists,
historians and philosophers, among others — to study the
underlying reasons for certain traditions and whether
they can be adapted to the digital age.
"Rituals are very important," Mr. Benyekhlef said.
"But maybe there are some where we don't even know why
we are still following them." Jacquelyn Burkell, a
professor of media studies at the University of Western
Ontario, will be involved in looking at how new
technologies influence the trial process.
What changes when a witness is testifying through a
video link instead of in person? Will people accept the
authenticity of electronic documents as readily as they
do paper?
"Electronic management of documents seems to me in
the end a no-brainer," she said. "We just have to get
over the fact that we like paper in our hands and we
trust it more."
The Center for Legal and Court Technology at William
& Mary Law School in Virginia has been promoting the use
of technology in the courts for nearly 20 years. It
regularly stages mock trials inside a fully digital
courtroom that is described as the most technologically
advanced in the world.
Witnesses testifying from remote locations appear
life-size on high-definition screens.
In some proceedings, it is the judge who follows the
case remotely and appears on a screen. All evidence is
submitted electronically, and each juror has a screen to
view documents as the witnesses discuss them.
A court reporter produces a real-time transcript,
which is sent to the judge, counsel, and even across the
Internet to others following the case.
The courtroom can provide simultaneous translation of
testimony from an off-site translator.
Frederic Lederer, a William & Mary law professor and
the center's director, is familiar with the various
objections to a high-tech court.
Some have argued that it risks tipping the scales of
justice. "How fair will it be when the prosecution is
able, in an increasing range of cases, to deploy
attractive graphs on screen, to scan their documents and
reproduce them on a courtroom screen, to produce
computerized reconstructions of critical events, and
generally to call in aid the resources of modern
technology ... when comparable resources are not
available to the defendants and his or her advisers?"
Lord Justice Brooke of the English Court of appeal asked
in a 2004 speech on courtroom technology.
Mr. Lederer maintains that as long as the courtroom
is equipped to provide everyone with equal access to the
technology, it could in fact favour a tech-savvy
litigant over a team of high-priced lawyers.
"There is always the risk that you can be swamped by
money, with or without technology, but ironically we
think we are more likely to be evening things out than
we used to," he said.
Another common complaint is that remote testimony
robs lawyers and judges of the chance to assess a
witness's credibility face-to-face, to see the sweat on
his brow. Mr. Lederer is skeptical of the human capacity
to discern when someone is telling the truth, but even
so, he said the HD screens used in the model courtroom
provide a clearer image of a remote witness than a juror
would get in person.
"If you want to look at sweat I can give you a
close-up of the water pouring down," he said. "You can't
argue any more that you can't see the person well
enough."
Fabien Gelinas, a McGill University law professor and
partner in the Universite de Montreal cyber-justice
project, said there is an urgent need to improve the
courts' efficiency, particularly in civil cases.
"It is simply too expensive and takes too long. It is
very difficult for people to feel that they can actually
access the courts and obtain justice," he said.
In her address to the Kingston and the 1000 Islands
Legal Conference in October, Justice Robertson urged the
legal community to embrace electronic service of
documents, as she had in the Facebook example.
"One of the greatest criticisms of the court is the
snail's pace at which it moves," she said. "Right now in
Ontario, you are lucky to get a court date within a year
of starting your claim. If you have a slippery opposing
party, part of the delay and expense is tracking them
down."
Acceptance of change will not come overnight and
there are entrenched interests to overcome.
In Quebec, for example, the association representing
bailiffs has sued lawyers who serve papers by fax
instead of using the services of a bailiff.
Pierre Chagnon, past-president of the Quebec bar
society, expects attitudes to change as a generation
that has grown up in a digital age enters the
profession.
"It is true that the legal milieu is, by its nature,
slower to react, but we can't pull on flowers to make
them grow faster," he said.
"Today's students are a lot more ready than we are.
It will perhaps be hard for us to adapt -- I'm in my
sixties -- but for the young people, it is second
nature."
ghamilton@nationalpost.com