“The future belongs to those who prepare for it today.”

Malcolm X

 

Last week, the Future Trials Working Group of the New York Commission to Reimagine the Future of Courts rendered a comprehensive Report. And it’s chock full of sound analysis and imagining about where Courts, at least in New York, may be going. The Report identifies the critical issues and challenges evolving technology poses for our court systems. (A tip of the hat to my friend Matt Cairns for sending me the Report

 

The Commission itself was formed in June 2020 by New York Chief Judge Janet DiFore. It mission was to make recommendations to improve the quality and delivery of legal services in New York. The Future Trials Group was one of 6 groups established by the Commission.

 

The Group’s charge: evaluate how evolving technologies and other developments might be applied to improve future trial practice in New York. And, relatedly, to identify threats posed by such technologies, and make recommendations for the future. The chair of the Group was Richard Edlin of the Greenburg Traurig firm.

 

It would be naive to expect that the next 20 years will not present their own extraordinary changes and challenges to trial practice.

 

The Report is one of the first attempts by a court system to critically evaluate and prepare for a very different future than the status quo: “it would be naive to expect that the next 20 years will not present their own extraordinary changes and challenges to trial practice.”

 

Before I get to the meat of the Report, here are some takeaways and why the Report is essential, not just for the judiciary, but also for litigators:

 

  • The Report recognizes the fundamental ways technology and innovation will change our court systems and how courts operate.
  • The Report openly acknowledges that there will be changes, that courts will need to change and prepare for it.
  • The Group strongly believes technological changes should and must improve access to justice.
  • The Report realizes that remote court proceedings are here to stay and offer real advantages.
  • The Report is not just for the judiciary; it contains valuable information for litigators and dentifies issues of which we all should be thinking.

 

Without saying it, the Report pushes New York toward the perception of courts as a service instead of a place.

 

It’s the first time to my knowledge, that a court system-either state or federal- has actually said we will have to deal with change. That we will not be returning to normal. And without saying it, the Report pushes New York toward seeing courts as a service instead of a place.

 

What Did The Group Find?

 

The Report is broken down into four parts: How should courts evaluate emerging technology, what areas of trial practice are likely to be transformed by the changes technology will bring, what are the benefits and issues associated with trial by video conferencing, and what is the duty of the judiciary with respect to technology and how to best train judges to do their jobs effectively. A series of recommendations follow each section.

 

Evaluation of Emerging Technology

 

This section sets out the principles courts should use to determine if a particular technology will and should impact court proceedings.

 

These principles include:

 

  • Fairness and access to justice-Does the technology help ensure all litigants will have a better opportunity to be heard and be informed?
  • Efficiency-Will the technology and process reduce the judicial backlog? Will it make litigation more efficient? The Report recognizes that technology has the potential to increase efficiency in the judicial system. And that that increase should improve access to justice by reducing the time and money barriers to participation.
  • Reliability of technology for its intended purpose– The Report astutely realizes that new methods of proof will be needed to assess the reliability of technology actually used in court. The Report even mentions such things as technology that could be used to detect deception of witneses. (While we aren’t there yet, we may not be far away). Courts need to be thinking about how to deal with issues associated with new technology.
  • Ease of use-Emerging technology has to be easy to use not only for the bar and judges but also for the public that uses the court system. The Group perceptively recognizes and is sensitive to the percentage of the population that may not have adequate access to or familiarity with a particular technology. As I have discussed, this is a critical issue.
  • Financial cost-The cost of any technology employed by courts must be measured against its real benefits. New York courts, like many other state court systems, are facing ongoing financial constraints that the pandemic has exacerbated. The Report questions how courts can deal with these financial constraints yet provide the type of judicial system that is open and fair to all. Dealing with cost constraints is a critical question for the future.

 

How Will Trial Practice Likely Be Impacted by Evolving Technology?

 

Most pre-pandemic trials were conducted in much the same fashion as trials have been for decades.” That’s about to change

 

“…Most pre-pandemic trials were conducted in much the same fashion as trials have been for decades.” That’s about to change, says the Group. And that change means court systems must tackle the thorny question of the impact of those changes. In looking at this question, the Group reviewed and talked to a number of legal technology experts. From this, several questions emerged.

 

Should, for example, courts provide and control the technology used in the courtroom? Or shoiuld it be left to the individual litigants to provide whatever they want or can afford to use? As the Report notes, on the one hand, courts want to let litigants be free to use technology to tell their stories in the most convincing way possible. On the other hand, at some point, the inherent unfairness of allowing one side unfettered use of technology that the other side can’t afford may become grossly unfair. Where should the line be drawn? The Report does define what courtroom Technology it considers basic to any courtroom. This list will be helpful to any litigators preparing for trial and assessing what tools are available.

 

The Group addressed issues associated with remote and fully or partially automated transcription  services, both of which are already technologically feasible. These technologies can make court proceedings more efficient. The Report analyzes issues associated with the live streaming of court proceedings and assesses new forms of evidence and possible admissibility disputes.

 

I liked the latter discussion since it serves as a helpful primer for the issues litigators and courts may face in the future. Such issues as those associated with the use of geolocation data. Video recordings, facial recognition, neuroimaging evidence, genetics evidence. How do such evidentiary rules as hearsay and rules related to best evidence concepts fit with these new technologies? And maybe most significantly, the Report implores courts to be prepared to deal with claims that documents and videos have been manipulated or fabricated.

 

Finally, this section looks at future issues posed by such things as 3D printing, virtual reality, and AI. The Report even poses the question whether courts should support AI that could, in whole or part, decide certain disputes. It’s refreshing to see an arm of court systems looking at and trying to prepare to deal with these looming issues.

 

Trials By Remote Videoconferencing Technology

 

It is here the Report shines and you can see the amount of work that the Group put into its work. The Report details the benefits and concerns raised by videoconferancing technology. It provides the results of the Group’s survey of courts’ practical experience with virtual trials in Texas, Florida, and California. It also reviews the law and precedent that might be relevant to the appropriateness of remote trials. Great resource not only for courts but also lawyers that might be faced with a remote trial and who are trying to determine whether to agree to it or fight it.

 

Training and Ethics

 

Finally and perhaps most importantly, the Report ends with a discussion of the ethical obligations concerning the benefits and risks of technology not only for lawyers but also for judges. Says the Report, “judges will also need to stay abreast of technology developments in order to fulfill their duties and maintain public trust.” Judges must have a basic level of technical and scientific knowledge to be competent. It’s about time somebody said it

 

Judges must have a basic level of technical and scientific knowledge to be competent. It’s about time somebody said it.

 

I was impressed with the Report, the work that went to it, and a court system’s willingness to look clear-eyed to the future. It’s a fearless recognition that things are changing. Its a recognition that, if our court system is to be trusted by the public and advance the rule of law that is so fundamental to our society, it must change too.

 

I have been called for jury duty several times and have been struck by how inefficient and disruptive the entire litigation process really is. To me, this inefficiency was a minor inconvenience. Too many others called to jury service have their whole lives disrupted and their employment and financial situation detrimentally impacted. There has to be a better way to administer justice. There has to be a better way to build public respect for our system. The Future Group’s Report is a step in the right direction.