Resistance to e-litigation is futile

When winter descends upon New Zealand, where else should one be but attending a conference in a place where winter has not descended and will never descend? So it was that on 11 and 12 August 2011, I was in Singapore attending the International Conference on Electronic Litigation organised jointly by the Singapore Supreme Court and the Singapore Academy of Law.

Electronic litigation, broadly, is the incorporation of information technology (IT) into the litigation process to improve the process and make it more efficient. The Conference focused on two aspects of how IT impacts on litigation.

The first was in relation to discovery and the proliferation of electronic documents, and the increasingly important issue of balancing the scope of discovery against its cost.

The second aspect concerned the use of technology in the courts for a more efficient litigation system and Singapore’s experience in that field. In that sense, the Conference was an excellent showcase for the successes that have been achieved by a small jurisdiction that has embraced change.

This article will focus on the second aspect.

The keynote speakers were Singapore’s Chief Justice Chan Sek Keong, Lord Justice Rupert Jackson of the Court of Appeal of England and Wales and Justice VK Rajah, Judge of Appeal of Singapore.

The Chief Justice outlined broadly the e-ligation journey undertaken by the Singapore courts. Singapore has had electronic filing for court documents since the late 1990s. Then a regional business hub and aspiring to become an international financial centre, it was important for Singapore that its courts integrated into its processes the technology that was becoming commonplace in business, finance and commerce.

Now, the Singapore courts have a customised, state-of-the-art end-to-end electronic filing system (EFS) available nationwide. Use of EFS is now mandatory, and litigants must file their claims by EFS through their lawyers or the service bureaux appointed by the courts. As the Chief Justice put it, that has effectively extended the court registry hours to 24/7 every day of the year. Up to the end of May 2011, some 7.27 million documents had been filed by EFS in the Subordinate and Supreme Courts.

The Chief Justice noted that as the initiative had been driven by the courts, one of the biggest challenges was the legal profession’s suspicion of and innate resistance to change. But, clearly a keen follower of Star Trek, the Chief Justice pronounced in the best traditions of The Borg that “Resistance [was] Futile”. And indeed it would seem that the Singapore Bar has been thoroughly “assimilated” as it is now demanding more changes and more electronic services.

Other uses of technology the Chief Justice mentioned included the regular use of video conferencing to take the evidence of overseas experts and the introduction of paperless hearings in the Court of Appeal.

Lord Justice Jackson (who also spoke at the New Zealand Bar Association conference in Queenstown in 2010) gave a brief overview of the use of IT in the civil courts of England and Wales. It seemed that currently, there was a patchwork of different IT systems operating or being developed in those courts, not all of which were compatible with each other. Lord Justice Jackson devoted the rest of his address to the civil litigation costs review that he had undertaken and the work that was being done for the UK courts to manage litigation costs in conjunction with case management.

Justice Rajah gave the keynote address on the second day of the conference on the incorporation of technology in court advocacy. Justice Rajah looked at litigation and advocacy from an unusual but (in this writer’s respectful view) insightful aspect. He pointed out that law and process were structured around information patterns and information gathering. In that respect, the court process was an exchange of information and the courtroom was at the centre of a complex system of information exchange and management. From that perspective, technology was an essential component of litigation.

However, a number of issues arose in the use of IT in litigation and advocacy.

For instance, if video recording of the trial process and witness evidence became the norm, viewing that record in an appeal could in effect turn the appellate court into second triers of fact.

The use of video conferencing to take evidence may also affect the flow of the verbal communication between judge, counsel and witness. Video conferencing may have an impact on the witness’s testimony and its evaluation by the judge, particularly with respect to the witness’s credibility. To put it simply, in video conferencing, the judge does not see the witness as such but sees the camera’s perspective of the witness. No studies have been undertaken to assess whether these “virtual hearings” are prejudicial to witnesses.

Unsurprisingly the Judge noted that there was a constant tension between efficiency gains and the attainment of substantive justice and concluded with the reminder that technology should be deployed with the aim of increasing the justice outcome. To paraphrase the Judge, technology should not be added if justice would be subtracted.

The conference ended with a mock electronic trial at the Supreme Court and a tour of the building. The mock electronic trial featured photographic and documentary evidence that was displayed on big screens rather than paper, an expert giving his evidence by video conference and the real-time transcription of oral evidence. With respect to the tour of the Supreme Court, this writer was particularly excited by the way the Singaporeans conducted their equivalent of the Wellington Monday morning Judge’s Chambers List. Imagine knowing when your item is coming up (after you have entered, electronically, of course, all the details) and being sent a text by the court 10 minutes before, so that you have time to finish your coffee. Now, that’s innovation.

Pam Davidson is a Wellington barrister. She has a particular interest in e-litigation, having been involved in a hearing in March 2011 conducted largely electronically.

This article was published in LawTalk 783, 21 October 2011, page 6.