Online courts and the enemy of the good

Disarmingly, Richard Susskind begins his foreword: 'I often joke that I write the same book every four years.' Actually, he's not the only one to make that crack. But whether that's fair or not, Online Courts and the Future of Justice is not that book. This is the important one. It is a must read for critics of efforts to bring courts into the digital age - notably of course HM Courts & Tribunals Service's modernisation programme.  

Susskind may not convert many sceptics (especially as the HMCTS programme goes in to territory which he does not deal with here). But his robust demolition of rejectionist arguments should give pause for thought. 

In this book Susskind is talking about civil dispute resolution and the court as a process, not a place. His online court has two distinguishing features: first, judging is conducted remotely and asynchronously. Secondly, it is an 'extended court' with features to guide users, especially non-expert ones, through procedures.

Such technology-enabled innovation should be uncontroversial, Susskind says. But the legal sector is a world apart. 'I am assailed almost daily by articulate and forceful judges and lawyers who snub online courts without any evidence of their operation in practice nor their purpose in principle,' he blasts. 'This kind of rhetoric would be accepted neither in the courtroom nor in informed public discourse, and will not be admitted here either.' 

In the key middle section, he tackles rejectionist arguments head on. 

Online justice is just another term for cost-cutting? Not so. 'To persist in believing or declaring that the introduction of online courts is but a ploy to cut costs is to disregard the heartfelt and explicitly stated views of innumerable judges, lawyers and commentators.'

No business case? 'A bizarre contention. Until any business is up and running, it is never possible to confirm or otherwise that it is performing according to plan. In new markets, by definition, there is little advance evidence.'

A threat to transparency and open justice? Transparency is not absolute - and 'it is strongly arguable that online courts are, in practice, more conducive to open justice than traditional, physical, courtrooms.'

Economy class justice? But but what if the online court turns out to be quicker, cheaper, more intelligible and more convenient? 'It is far from clear that the online court is the inferior offering.'

His overall argument is that critics are making unfair comparisons: setting the online court's imperfections against an ideal - 'the lord chief justice of England and Wales, sitting in Courtroom 4 of the Royal Courts of Justice on The Strand in London'. Such critics are 'romantic transcendentalists rather than pragmatic comparativists'. And in this climate, as Voltaire famously observed 'the best is the enemy of the good'.

Of course not all objections to innovation are 'irrational rejectionism'. Criminal justice, Susskind concedes, raises a new set of questions - it would be interesting to get his thoughts on HMCTS' enthusiasm for online guilty pleas. But when it comes to access to civil justice, we are where we are - in a broken system. Susskind concludes with a call for 'a global effort, dedicated to introducing online courts to countries that have great backlogs in their traditional court systems or severe access-to-justice problems'.

While there are no guarantees about the benefits of moving online, 'the upside appears to be sufficiently attractive that it looks like a sound investment'. 

Seriously, does anyone have a better idea?

Online Courts and the Future of Justice. Richard Susskind, Oxford University Press