I’ve put together a research project that looks to a future where New Zealand is likely to follow the online court trend, a trend that is already taking off in British Columbia and England and Wales. The study is co-funded by the University of Otago Legal Issues Centre and a generous grant from the New Zealand Law Foundation’s Information Law and Policy Project.
Online courts hold the promise of making justice more accessible and affordable: lawyer intervention will not be needed and a dispute can be filed at any time, from anywhere, and people will be able to interact directly with an online portal from the comfort of their own home. A key assumption underpinning the online court model is that people will be able to effectively explain their dispute in this forum, without legal assistance. However, we don’t really know how good people are at doing this and we have reason to think their ability to do it well is limited. For example, Lord Justice Briggs suggests that currently civil proceedings rely on “the litigant turning a blank sheet of paper into particulars of claim, an adversarial process which LiPs tend not to perform with distinction” (at [6.8]). My own previous research and the work of others, suggests that there are a number of aspects of preparing court documents that LiPs struggle with: determining relevance, separating evidence from submission, and presenting documents in a logical and coherent way. Substantial faith is being placed in the software to be able to “guide the litigant through an analysis of his or her grievance in such a way as to produce a document capable of being understood both by opponents and by the court” (Lord Justice Briggs at [6.8]). While this appears on the face to be impressive, there is a dearth of detail that explains how this will be achieved. As Robert Condlin says:
Sadly, detailed illustrations [of how online dispute resolution will work in practice] are hard to come by. The scholarly literature is devoid of transcripts and richly detailed ethnographies and full of self-serving generalities and self-sealing conclusions.
Unless people are effectively able to explain their dispute in an online portal, the online court model won’t deliver the oft-touted promise of access to justice. This project therefore looks at how effective are lay people at translating a justiciable dispute into a legally coherent claim, with their performance compared to lawyers. It will then go on to explore innovations that might assist lay people to explain their dispute to the court.
I’m not attempting to do this alone. I’ve assembled a crack team of researchers to tackle different aspects. My Otago colleague Dr Bridget Irvine, who comes from a law and psychology background, will be running the lab-based experiments testing how people translate a justiciable event into a legal claim. Dr Tatiana Tkacukova, a Senior Lecturer in Linguistics at Birmingham City University (who specialises in lay litigant communication), will be analysing previously filed court documents and the lab generated material from a linguistic perspective. Associate Professor Sally Jo Cunningham and Dr David Nichols, who specialise in Human Computer Interaction at Waikato University, will be taking these results and developing and testing new approaches to assist people in communicating their disputes effectively in an online portal.
The project kicks off in January 2018 and we are keen to hear from anyone who is doing complementary work in this field. Drop me a line at firstname.lastname@example.org.