Traditional Court Processes Research Articles

Intelligent Legal Tech to Empower Self-Represented Litigants

Legal technologies, or “legal tech,” are disrupting the practice of law and providing efficiencies for businesses around the globe. Indeed, legal tech often conjures up notions of billion-dollar businesses and highly sophisticated parties. However, one branch of legal tech that holds particular promise for less sophisticated parties is access to justice (“A2J”) through the use of online dispute resolution (“ODR”). This is because ODR uses technology to enable online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, landlord-tenant, personal injury, debt collection, and even divorce claims online. The hope is that legal tech such as online triage and dispute resolution systems will provide means for obtaining remedies for self- represented litigants (“SRLs”) and those who cannot otherwise afford traditional litigation. Meanwhile, the COVID-19 pandemic has accelerated the growth of online processes, including court and administrative processes that traditionally occurred in person. Nonetheless, these online processes seem focused mainly on case management and communication, neglecting the need for more imaginative and innovative uses of technology. Accordingly, this Article proposes a six-module system for ODR programs and identifies gaps in development where new technologies are needed to advance A2J. Indeed, there is great room for the development of Artificial Intelligence (“AI”) and data analytics to assist SRLs and others in pursuit of remedies and justice.

Intelligent Legal Tech to Empower Self-Represented Litigants

Legal technologies, or “legal tech,” are disrupting the practice of law and providing efficiencies for businesses around the globe. Indeed, legal tech often conjures up notions around billion-dollar businesses and highly sophisticated parties. However, one branch of legal tech that holds particular promise for less sophisticated parties is expanding access to justice (A2J) through the use of online dispute resolution (ODR). This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that legal tech such as online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and those who cannot otherwise afford traditional litigation. Meanwhile, the Covid-19 pandemic has accelerated the growth of online processes, including court and administrative processes that traditionally occurred in person. Nonetheless, these online processes seem focused on mainly case management and communication, neglecting the need for more imaginative and innovative uses of technology. Accordingly, this Article proposes a six-module process framework for ODR programs and identify gaps in development – where new technologies are needed to advance A2J. Indeed, there is great room for development of Artificial Intelligence (AI) and data analytics to assist SRLs and others in pursuit of remedies, and justice. This is a DRAFT of a working paper that will be edited and published in the Columbia Science and Technology Law Review.

Restorative justice conferencing in an environmental offending context: the role of legislation

Narrow conceptualizations of victimhood following environmental offending are slowly giving way to more inclusive understandings. Such victimhood being inclusive of individuals (living and future generations), communities (Indigenous and non-Indigenous), the environment, and commercial operators. Prosecution and traditional court processes fail to accommodate such victims, meaning the harm occasioned by environmental offending is not truly repaired. Restorative justice as an inclusive process offers hope in remedying such defect and can be embedded in court proceedings. Yet a strong legislative architecture is needed to encourage, facilitate and consider restorative justice in the context of environmental offending. Encouraged by the recent commencement of legislation in Victoria, Australia, which is facilitative of restorative justice following environmental offending, this article explores that legislation alongside that of New South Wales, Australia and New Zealand. Following appraisal, guidance is provided regarding what components effective legislation requires to encourage, facilitate and consider the use of restorative justice following environmental offending.

Law Science (Forensics) and COVID-19

COVID-19 has disrupted not only the health sector but also justice systems. Courts around the world have had to respond quickly to the challenges presented by the pandemic and the associated social distancing restrictions. This has created significant challenges for the justice system and such challenges are likely to be further compounded in the post-pandemic era as there is a 'tsunami' of COVID-19-related disputes predicted. This study will examine how global court responses have transitioned from being primarily traditional, face-to-face proceedings to online court processes (as supported by internet technology). By adopting a comparative approach, we will analyse how some countries have adopted to this shift to online mode while also maintaining a focus on access to justice. We argue that online modes of dispute resolution, often referred to as Online Dispute Resolution (ODR), can promote resolution while facilitating social distancing in this new COVID-era. The rapid shift from traditional court processes to an online mode has further assisted the public, lawyers and experts to access the justice system in some jurisdictions, even during the crisis. In light of the scale of recent changes, there have been concerns about the capacity of courts to adopt newer technologies as well as issues relating to the impact of a new online model of justice, particularly in terms of the barriers for more vulnerable members of society. Further, the use of disruptive technologies in some courts have posed questions around whether outcomes generated by these innovations reflect the meaning of 'justice' in its traditional sense. This article argues that courts should embrace newer technologies that support court services while being mindful of possible tech-related issues that can impact on justice objectives. We argue that by placing further emphasis on alternative dispute resolution methods and ODR into the future, this might offset the likely tsunami of COVID-related litigation which would enable courts, hospitals, medical professionals and patients to settle disputes in a just, equitable and more efficient manner.

Alternative Dispute Resolution (ADR) Hybrid in Cameroon as a Form of Legal Protection for Consumers of Defective Products

As part of the awareness creation exercise, this paper seeks to establish that consumers of defective products in Cameroon should be exposed to the various extra-judicial channels once they can be adopted by Government and through which the consumers can enforce their rights. This is known as Alternative Dispute Resolution (ADR). The acronym ADR is a group of flexible approaches which could be applied in resolving disputes related to defective products more quickly and at a lower cost than going through the tedious road of adversarial proceedings. ADR mechanisms generally are intended to mean alternatives to the traditional court process. Their adoption will involve the use of impartial interveners who are referred to as “third parties” or “neutrals”. On the whole, the choice of a consumer redress mechanism is a choice between judicial and non-judicial mechanisms. The paper argues that, considering the difficulties encountered by the consumer within the adversarial system, the non-judicial mechanisms are more impactful and satisfactory to consumers than the judicial. It is equally argued that the judicial mechanisms depict a certain level of risk taking, that is, the risk of winning or losing and hence going without a remedy. This risk factor is much lower in the non or extra – judicial system or mechanism which reveals that in appropriate circumstances, the producers using the good customer relation basis, are minded to compensate even where the consumer’s claim is baseless. In this wise, it is therefore necessary to encourage the utilization of the extra - judicial mechanisms in resolving consumer complaints. Expediency, speed and low cost no doubt support this call.

Court innovations and access to justice in times of crisis

BackgroundCOVID-19 has disrupted not only the health sector but also justice systems. Courts around the world have had to respond quickly to the challenges presented by the pandemic and the associated social distancing restrictions. This has created significant challenges for the justice system and such challenges are likely to be further compounded in the post-pandemic era as there is a ‘tsunami’ of COVID-19-related disputes predicted. MethodsThis study will examine how global court responses have transitioned from being primarily traditional, face-to-face proceedings to online court processes (as supported by internet technology). By adopting a comparative approach, we will analyse how some countries have adapted to this shift to online mode while also maintaining a focus on access to justice. ResultsWe argue that online modes of dispute resolution, often referred to as Online Dispute Resolution (ODR), can promote resolution while facilitating social distancing in this new COVID-era. The rapid shift from traditional court processes to an online mode has further assisted the public, lawyers and experts to access the justice system in some jurisdictions, even during the crisis. In light of the scale of recent changes, there have been concerns about the capacity of courts to adopt newer technologies as well as issues relating to the impact of a new online model of justice, particularly in terms of the barriers for more vulnerable members of society. Further, the use of disruptive technologies in some courts have posed questions around whether outcomes generated by these innovations reflect the meaning of ‘justice’ in its traditional sense. ConclusionsThis article argues that courts should embrace newer technologies that support court services while being mindful of possible tech-related issues that can impact on justice objectives. We argue that by placing further emphasis on alternative dispute resolution methods and ODR into the future, this might offset the likely tsunami of COVID-related litigation which would enable courts, hospitals, medical professionals and patients to settle disputes in a just, equitable and more efficient manner.

The Rise and Rise of Technocratic Justice

The justice system does not operate in a vacuum. It is subject to budgetary pressures, which demand efficiency and expediency. To wit, the federal government announced in 2014 that legal assistance programs would take a funding cut of $15 million, despite operating on a budget 25 per cent below historical trends. In response to these economic pressures, the court system has endured a steady rise in 'technocratic justice', resulting in the substitution of traditional court processes with cheaper and faster regulatory regimes. The reality of this fact prompted former NSW Chief Justice James Spigelman to criticise the application of 'allegedly superior values of a market system' to the justice system. 'Some things take time,' he said. 'Justice is one of them.' For lawmakers, regulatory justice is an effective tool to ventilate the court process of so-called trivial offences. The role of the judge has been outsourced to the magistrate, the police officer and the ticket inspector.

An Appeal for Autonomy, Access, and Accountability in Family Court Reform Efforts

An array of dispute resolution alternatives should be available to families who elect to use them. We suggest a system where parties maintain unhindered access to traditional courts but are able to knowingly and voluntarily opt into dispute resolution processes that are delivered in a fair, affordable, and accountable manner. We support provision of community‐based and private‐sector services to the extent that court funding and access is not diminished. Key Points for the Family Court Community Choices about participation in dispute resolution processes should be party driven. Parties should receive complete and accurate information about available dispute resolution processes and have access to confidential legal advice. Dispute resolution processes should be fair, affordable, competently provided, and accountable. Parties should have open access to traditional court processes.

Talking the Talk

In Australian criminal justice systems, a wide range of pathways to sentencing and punishment exist alongside traditional court processes. In particular, therapeutic jurisprudence ('TJ') processes have emerged during the last quarter of a century and now occupy a key position in the criminal justice landscape. This article provides an introduction to TJ, highlighting in particular the emphasis it places on the active participation of offenders, before critically discussing offenders' capacity to engage with TJ processes. The article then summarises the research on the oral competence of offenders, and argues that offenders who lack oral competence may be disadvantaged in TJ processes. Finally, we provide an overview of the limited guidance that has been provided to TJ practitioners on how to maximise the participation of offenders with limited oral competence.

Testing the Suitability of Mediation of Child Support Orders in Title IV-D Cases

Objectives: The purpose of this study is to test mediation versus a traditional court process for the establishment or modification of child support orders. The intention is to determine which dispute resolution process is associated with greater client satisfaction and compliance. An auxiliary objective is to test the type of cases which are most successfully mediated. Results: The analyses suggest that client satisfaction is greater with mediation, but there is no corresponding increase in compliance. Regarding the type of cases where mediation was most fruitful, the research finds that voluntary mediation and mediator experience are both positively associated with more successful mediation. Conclusions: There is no evidence that mediation will necessarily lead to increased compliance with child support orders.

Love Means always Having to Say You're Sorry: Applying the Realities of therapeutic Jurisprudence to Family Law

Collaborative divorce generally involves both parties and attorneys agreeing to forego litigation and arriving at a suitable compromise through a variety of negotiation methods, while cooperative law may include court intervention, but in a more supportive, rather than decisive, role. One judge termed it hands-on courts where outcomes, not just procedures, matter. While judges, observing family law practice from their unique vantage point, have been generally supportive of such maneuvers, this shift away from traditional court processes has not always easily lent itself to acceptance by lawyers. Collaborative lawyering has been described as a change in mindset for the lawyer as much as the client, recognizing that good advocacy may well demand a switch from established thought processes to a realization that winning in the short term is not always best for the client. Advocating what is best overall for the client (which may include considering the other party as well as the children) can be viewed as a new form of strength. This does not mean the lawyer should abandon immediate goals of the divorce, but rather that all involved should be aware that the passage of time may affect those needs and goals. While mediation can help clients recognize and plan for the future, collaboration likewise promotes this scenario while simultaneously allowing for continued legal advocacy on the client's behalf. It is, in many instances, simply eliminating the middleman (i.e., the judge). Because family law, especially dissolution, is necessarily focused on the children of the relationship, collaborative law provides an effective forum in which the parties can feel protected by a personal legal advocate, while still creating a progressive relationship for the future. Clients who feel left adrift or even threatened by the mediation formula may well feel safer and are more likely to commit to collaborative procedures. Section I of this paper focuses on a brief history of therapeutic jurisprudence and restorative justice, and will provide an overview of their current place in the law. Section II discusses the concepts, goals, and methodology of therapeutic jurisprudence and restorative justice in relation to family law issues, and in particular the dissolution of marriage. Section III and the conclusion examine the effects of formalizing therapeutic jurisprudence and restorative justice in family law, including concerns about ethics rules and the personal impact on clients, lawyers, and the judiciary.

The Efficacy of the Rio Hondo DUI Court

This study reports results from an evaluation of the experimental Rio Hondo driving under the influence (DUI) court of Los Angeles County, California. Interviews and official record checks with 284 research participants who were randomly assigned to a DUI court or a traditional criminal court were assessed at baseline and at 24-month follow-up. The interviews assessed the impact of the DUI court on self-reported drunk driving behavior, the completion of treatment, time spent in jail, alcohol use, and stressful life events. Official record checks assessed the impact of the DUI court on subsequent arrests for driving under the influence and other drinking-related behaviors. Few differences on any outcomes were observed between participants in the experimental DUI court and those assigned to the traditional court. The results suggest that the DUI court model had little additional therapeutic or public safety benefit over the traditional court process. The implication of these findings for the popularity of specialized courts for treating social problems is discussed.

Controlling Theft in the Public Service: Penal Law and Judicial Responses in Malawi

The period covering the first seven years of Malawi's independence (1964–1971) stands out as one of the most controversial in the country's postcolonial legislative history. It was during this period, for example, that the local or “Native” Courts of the colonial era were transformed into the now controversial Traditional Courts and given an existence separate from and independent of the High Court, as well as extensive criminal jurisdiction encompassing offences like murder and manslaughter and, subsequently, treason and sedition which were hitherto the preserve of the High Court. At the same time, the participation of lawyers in traditional court processes and the right of legal representation were curtailed under the pretext of ensuring that the course of justice would not be subverted by the frequent invocation of “technicalities” which lawyers are wont to invoke because of the alien and esoteric nature of their training. This paper is not concerned with the “law” of the Traditional Courts in Malawi which, elsewhere, continues to excite appropriate scholarly interest, but with another equally controversial law of the same period whose formulation was buttressed by similar antipathy towards the legal profession. This law introduced a special and rigorous regime for the prosecution and punishment of thefts in the public service.