Are Canadian Courts Adapting With New Technologies?

The cornerstone of any free society is a thriving court system which takes the approach to justice very seriously. For a court system to truly serve its constituents it has to keep up with the technology and the Canadian legal system is no exception.

Fortunately, the modern technological advances that have been woven into the Canadian courts have proven to not only be cost effective but also to serve the greater good.

I see you!

There is a practical aspect of adapting technology to court use and that has to do with geography. Beyond our vibrant urban cities, Canada is a vast land of abundant resources and environments. The current population stands at 30 million + but we are scattered all across the Canadian landscape. As such, it’s not uncommon for a judge to be issuing rulings 1,500 miles from the main courthouse. This is where video conferencing has made a huge difference in terms of expediting court cases.

With video conferencing, a judge can review, cross examine and make a ruling on an applicant who might be several miles away. By adapting video conferencing there is also a great reduction in the need for prisoner escort costs. In some cases, a video conference is a benefit when a hardened criminal can remain incarcerated without the chance of getting contraband passed to them outside the confines of the jail. This is definitely a case where swift justice can prevail.

Shuffling papers…

Another positive use of technology is with case management, especially the large amounts of paperwork to manage. New software and systems have been created that allow documents to be created, edited and stored virtually on secure servers. It allows court clerks instant access to case files and removes redundant data entry.

As with the video conferencing, upgrading to a case-management system for certain court documents is a cost saver not only on paper but also physical storage space. The caution is to insure that these documents are secure. Safeguards need to be put into place to make sure only designated court personnel would have access to these types of records. By the same token, these files have to be properly updated to insure that an innocent party has their record expunged.

Efficiency is the key

During the actual trial, technology can play a role when it comes to evidence presentation. A power point presentation is easy to compile and understand. It’s also helpful when it comes to reviewing that evidence if it is kept on a single file as opposed to scattered over dozens of charts and placards. Many courts have upgraded old transcript recording to new digital recording methods. Once again technology proves to streamline a process while reducing costs.

Clearly, the Canadian courts are putting technology to work. The question then becomes how dominant will that technology become and will there be safeguards to protect privacy? Ironically, the answer to that will be decided by the courts.

Is the Legal “Gene Pool” Too Contaminated?

I was watching repeats of a humorous gameshow called QI on the UK TV channel “Dave” the other day and Stephen Fry, the compare, asked the panelists a question:

“What did the Dik-Dik do that the Dodo didn’t?”

There were the usual humorous replies and verbal dancing round the handbags until the true answer came out; which was that the Dodo lived on an Island and had no predators, so when man arrived it had no fear of man and was therefore wiped out by hunters. Whereas the Dik-Dik, a small antelope the size of a small dog, lived in Africa and had predators all around it.

In fact everything from large birds to jackals and reptiles wanted to eat it and it was afraid of almost everything and so it learned to develop strategies for living and (unlike the Dodo) was still with us.

So the Dik-Dik hid from man and the Dodo didn’t…and the one with no predators ended up extinct.

The chat continued and it was mentioned that the fish in large tropical fish tanks are kept fit and healthy by the inclusion of a predator in the tank. The idea being that the large majority of fish in the tank have no desire to be eaten, so they keep a suitable distance from the predator fish; when the predator goes left, they go right and so on and the exercise does them all good.

The subject then moved on to Darwin and evolution and the fact that Darwin never said “Survival of the fittest” what he said was “It’s not the fittest or the most intelligent that survive but those most adaptable to change.”

So far so good, but what does this have to do with lawyers and the law?

Well, the next day I was reading (flicking through) a couple of law journals and towards the back they always have a page devoted to staff movements; you know the sort of thing, “Bloggs and Co are delighted to announce their new employment law partner Mr Smith, who has joined them from Briggs and Co” There were about 10 of these announcements in one journal and 14 in the other one, all saying the same thing.

What struck me was that the lawyers of one medium sized firm left and moved to the other medium sized firm; usually in the same city.

In the 24 examples that I read, 90% of them had simply traded employment in one medium firm for another.

I looked back at some old journals and saw the same thing with the same statistics.

What that tells me is that the thinking, processes and culture of one medium sized firm almost identically resembles the other; the only difference is the personalities of the partners.

On that very subject, I saw an article about lawyer personalities and what makes an ideal lawyer, but then I remembered something else that I’d read about a sense of self-importance; which is a subconscious element in most lawyers.

It went a bit like this: to become a lawyer, one must go through life as an achiever, otherwise you’d never make the cut.

As a student at school you must get decent grades. Your self-importance “thermometer” rises. This sets you apart from the others and you earn a place at Law college. To graduate you will have passed a number of exams and seen a number of your peers drop out for various reasons. Another rise of the mercury.

You are accepted for a Diploma or LPC place. Up another notch.

Some peers drop out and you pass. Up again.

You win a traineeship with a law firm. Click.

You finish the traineeship and become a qualified lawyer. Click.

After a few years of pay rises and titles, you are selected as partner material. Getting hotter.

After a few years as partner, dispensing advice to clients who come to you and pay you an hourly rate that is a weeks wage or more to many, your sense of self-importance is right up there.

Now tie that in with the Dodo, Darwin theory, the movement of partners between firms.

Lawyers have had no predators in the past. They are intelligent but not adaptable. They move from one firm to another that is almost exactly the same as the firm they just left and they have a sense of self-importance that means they do not and will not listen to advice.

In a Zoo, the gene pool needs some outside help otherwise the animals in-breed and that causes physical and mental deformities.

The changes that the UK Legal Service Act and Alternative Business Structure brings might just be the DNA that the legal sector needs to survive by giving it a much-needed injection of “business DNA” so that lawyers can start dealing with their customers in a more acceptable manner.

The Legal Environments

Firms, as societal entities, operate in particular economic, political, and legal environments. The legal environment is a result of legislative intervention by the government (state) and the positive practices that are recognized and sanctioned by the positive law. Historically, the legal environment has usually been nationally defined, although scholars have tried to group legal systems into various groups, based on their similarities and dissimilarities.

A student of this topic would usually argue that there are two basic groups of legal systems, which traditionally have been opposed: the Anglo-Saxon (Anglo-American) model and the continental European law. However, although both main systems of law may have their distinctive features listed, in fact there are far too many convergences in recent times. In the past the common law (Anglo-Saxon) model would be predominantly based on the precedents, and the continental European law would be primarily based on the codifications.

But, there is ever-increasing legislative activity in the Anglo-Saxon countries, with a number of codifications taking place as judiciary may uphold the consistency of court practice. In either system, a judge may take a stance to create a precedent, but the sources of precedent would differ significantly. Growing empirical literature has attempted to prove the overall superiority of the Anglo-Saxon model. Although it is evident that economies of Anglo-Saxon countries may be doing comparatively better than the others in the long run, it is not empirically corroborated that the growth sustained over a period of time may be directly attributed to the features of the legal system (legal environment).

Legal systems, although they may be classified into larger groups, are basically heavily influenced by national colors and experiences of legal development, especially in revolutionary environments (when there is abrupt change in the development). Scholars studying legal environments would focus more, nowadays, on judiciary independence from the state and the politicians. It is believed that if the judiciary protects consistently property rights, even from the state, the results of development will be better, and in the case-law system, judges historically have been more prone to uphold the sanctity of private property rights.

Ex post judging is far better in responding to local information, rather than the application of abstract law, regulating the principles. However, increasingly the common law countries are resorting to promulgating laws and codices, in order to better capture different areas of law. In the United States, the Uniform Commercial Code (UCC) is probably the best example. The growth in legislative activity may also be seen as a sign of upcoming struggle between judiciary and legislative power for predominant societal influence. Most recently the discussion on “political delegation” would suggest that it is necessary to subsume, at least formally, all institutions of the state to the highest democratically elected body in the country (assembly, parliament, etc.), although that body is controlled exclusively by the politicians.

The literature has also defined a common law system as one in which judges exercise discretion to decide cases in independent and/or adaptive lawmaking ways, while in continental European countries the state would control judicial outcomes and the content of law as well. The basic premise of change between the two wider legal groups has been the perception as to what extent the judicial practice may influence the future legal decision taken by the court. It is a fact that in Anglo-Saxon countries precedents are a source of law and they have to be regarded in the future when the act is required in a similar situation. However, although in the continental European legal system judiciary practice is not a formal source of law, judges take into consideration the prior practice in order to ensure consistency in acting in the court and the country.

In comparative law, the literature is quite often focused on a set of five parameters, like (1) judicial incentives; (2) exogenous legal human capital; (3) the processing of litigant information into judicial error-reducing legal human capital; (4) the cost of producing evidence and legal arguments; and (5) the penalties (damages) levied in adjudication. Judicial incentives may be influenced by the way their independence is defined. Often in the analysis judicial independence features highly, especially as it is believed to be an important feature of the Anglo-Saxon model, which contributed to its better results. In the U.S. model, over 80 percent of serving judges are subject to some kind of election, reelection, or recall voting.

But even in the United States the upper echelons of judiciary are dependent on politicians who decide on their promotion to the highest offices. Similarly, in the continental European countries, the government may have a strong say in appointment of judges, especially in the case of higher courts. However, the very path of professional progression differs between European (especially French) and U.S. judges. In Europe, judges are often career civil servants, who have opted for the judiciary profession almost immediately upon graduation from the university; in the United States, judges are appointed from among practicing lawyers who have had more than 10 years of professional experience.

Comparative analysis of independence has shown more than a puzzle-judges should be independent, but the question is from whom? And, if one is independent, does it mean that he or she is also unbiased (objective)? Often it is assumed that judges, if not appointed by the government directly, will be critical of the government and look at the breaking of law made by the government in an unbiased manner. However, empirical research does not corroborate this claim. Some judges are more independent and unbiased in the way they operate than others, but it cannot be generalized as to what contributes to that. Another important feature is the relationship between precedents and statutes.

Anglo-Saxon law is believed to be based on a set of more or less harmonious precedents (stare decisis), while the continental European legal practices are based on the interpretation of law and the application of the abstract legal (statutory) rule to a concrete situation. However, even in the latter case there is a high level of consistency in judiciary practices, as the higher courts have the right of cassation and therefore for the performance of judges it is important that their decisions not be annulled and/or modified by the higher court. Therefore, even in the continental European legal systems, court practices are consistent, that is, jurisprudence constante.

At the far end, the issue is primarily behavioral-whether the judges will be expansive or rather conservative (narrow) in their apprehension of laws. Some recent empirical research has clearly shown consistency of judicial behavior across various systems. However, de jure legal practice is not a formal source of law in continental European legal systems, but, as already pointed out, will be seriously considered in the process of application of law. In both systems the vast majority of judges will opt not to rock the boat.