Necessity being the mother of invention, a wave of disruption and innovation has swept through the legal industry in the wake of the COVID-19 pandemic. Here are some of the ways that access to justice has taken a great leap forward in recent times—and what some of the potential problems may be for consumers and practitioners.
Has COVID-19 caused a technological revolution in the courts? Well, it has probably spurred on the disruption that has already been years in the making. For example, this article argues that in the US, the criminal law system is following the lead of the family law system in the uptake of new technologies, and that the COVID-19 pandemic is what has given it all a jump-start.
The field of family law has led the way for legal industries around the world, prompted by the real world needs of parents. Processes and delivery methods have been shaped for practical reasons–to save consumers time and money.
Over the past decade, increased client-focused digitisation in the legal industry generally has improved productivity and efficiency, with the advent of the “paperless” office with its advantages of lower overheads, improved communication and more flexible work practices. Documents are no longer printed on paper and stored in physical binders but are viewed on screens and transferred by USB stick and email, and pertinent information can be easily and instantly located in electronic documents.
Further, utilising cutting-edge IT, cloud-based systems, team-based and video conferencing technologies, many court hearings are now entirely electronic.
Here too, the family court system has capitalised on new technologies and digital capabilities to enable virtual hearings for many litigants. You can read about how the family courts have modified practices due to the pandemic here.
Other jurisdictions have been holding remote hearings too, including the Federal Court and the High Court.
While there have been numerous applications to courts to adjourn virtual hearings until they can be held in person in the old-fashioned way, many are embracing the new normal.
Aside from use in court hearings, the use of teleconferencing has also increased in other areas of the legal system, reducing face-to-face contact between lawyers and their clients and enabling better time organisation which results in costs savings for consumers.
Courts’ online systems
Australia’s Commonwealth Courts Portal has already been in operation for a number of years, enabling litigants and lawyers to access information about their cases, electronically file (eFile) various applications and supporting documents. The courts also have a Digital Court Program in place that is tasked with improving the courts’ electronic systems, as part of the Government’s general digital transformation agenda.
Recent updates to legislation to reduce face-to-face contact in the legal system, spurred by the coronavirus pandemic, include updates to laws governing the use of signing and witnessing of legal documents. Electronic transactions including the use of digital signatures are governed by the Electronic Transactions Act 1999 and state legislation, including NSW’s Electronic Transactions Act 2000 which was recently updated with a regulation to allow for video conferencing technology to be used for witnessing legal documents.
Online dispute resolution
Another area that has been ripe for disruption, triggered by the pandemic but probably long overdue, has been in dispute resolution.
After a series of experimental trials involving commercial mediations, the Commonwealth Courts (the Federal Court of Australia, the Family Court of Australia, and the Federal Circuit Court of Australia) have now adopted online dispute resolution solutions designed and delivered by Melbourne company Immediation. These processes will mimic real life mediation and hearing sessions, but utilise video conferencing and other software developments.
There are benefits particularly for vulnerable people in family law matters who can potentially be kept safer through special features of the virtual mediations. Having witnessed firsthand the intimidation tactics sometimes used by participants in in-person mediation sessions, which can impact both on clients and on legal practitioners, our principal Cristina Huesch welcomes these developments.
Barrister and Immediation founder Laura Keily said:
“This is a positive step forward for the industry and the community as a whole, and I’m hopeful we’ll continue to see this approach to resolving justice normalise well after the current health pandemic is over to keep more matters moving forward efficiently.”
Are there downsides to digital disruption in the law system?
There are reports of practical issues such as technological glitches and connectivity issues, concerns over whether sensitive documents can be displayed securely on screens, and a sense that there may be a loss of propriety, formality and focus:
“With lawyers making submissions from their bedrooms, the sounds of domestic animals and children are introduced into proceedings, along with vision of alarming home decor. A level of decorum is maintained as courts insist no one appears in their pyjamas or Hawaiian shirts…”
There also may be psychological factors such as litigants feeling “disorientated” or lacking confidence in the fairness of the process, which may have the potential for “corona appeals” to occur down the track, based on the idea that a litigant didn’t get a fair trial.
But there is the argument that the introduction of screens into courts merely points to a need to “reimagine courtroom spaces, social cues, symbols and performances”, through redesigning and modifying spaces and processes.
And allegations that judges can’t properly assess witnesses’ demeanour and credibility via virtual means have been dismissed, with courts pointing out that “the judge often has a clearer view of the witness on a screen than across the room in the witness box”.
Alliance Family Law’s tech systems
Well before the pandemic, Alliance Family Law has been a keen adopter of the benefits of new technologies to streamline our processes and provide more cost-effective services. For years we have run a largely paperless office meaning lower overheads and less time spent on printing and filing paperwork.
We continue to use the latest legal support software to help make sure we are efficient, and we hold meetings by phone or video which reduces meeting time and keeps costs down. One of our innovations has been to provide clients access to a client portal online, where they can complete court forms, edit letters and affidavits and generally easily communicate with our lawyers. Our external experts and witnesses (such as accountants, barristers, etc) have a separate portal where they are able to download and upload evidence efficiently.
If you would like to book a free initial consultation with Canberra family lawyer Cristina Huesch or one of our other experienced solicitors, please contact Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.