Savannah Seymour looks at the technological advances made within litigation, and the digital disruptions that could still be yet to come
In the wake of the coronavirus (COVID-19) pandemic, very few industries have evaded technological disruption. Zoning in on legal, the events that unfolded accelerated the digitisation of law, including the disputes sector. Consequently, we arguably have a semi-digital justice system, and hybrid ways of working. Yet within the area of civil litigation, there is a feeling that the bulk of the disruption is yet to come.
By comparison, commercial litigation had already embarked on its path to digital transformation. Electronic bundling (e-bundling) and trial presentation software are now common practice in commercial litigation, with e-bundles mandated and the use of a digital workspace recommended.
Moreover, the Disclosure Pilot Scheme (applicable to the Business and Property Courts) seeks to compel legal teams to embrace technology through the discovery process by encouraging the parties to use software to conduct the proceedings in a cost-effective and efficient manner, and in some cases, ordering that the running of searches are to be carried out with the use of technology or AI.
There is, of course, a clear disparity between commercial and civil litigation when viewed holistically. From the outset, businesses will generally have better access to the requisite resources. Secondly, businesses are data-heavy entities, with over 90% of all UK employers using or handling digitised data (personal or non-personal). This means that for the purpose of litigation, most of the evidence will already be in a digital or ‘soft copy’ format.
The use of and reliance on technology is still developing within the civil litigation space, with many disputes taking years to reach resolution. Access to justice remains a core issue for underrepresented communities and lower-to-middle class individuals in affording lawyers to solve their legal problems, which legal technology could arguably address.
Sir Geoffrey Vos, Master of the Rolls, recently forecasted that for lower value or straightforward personal injury (PI) and medical negligence claims, they should and “will be resolved quickly by AI”, as well as eventually be cost-free. Moreover, he also envisages “pre-action portals” and applications for factual disputes which will guide claimants through their legal processes, escalating their claim to a court-based online justice system for more complex disputes or where resolution is not possible.
Additionally, with the adoption of new technologies, such as smart phones, collecting data from these systems as evidence becomes much easier and more accessible for the purpose of legal proceedings, which further cuts costs and leaves little room for interpretation.
However, there are valid concerns with the pre-action portals Vos envisages. Firstly, they may not be as accessible as first anticipated for vulnerable claimants who may still rely upon a lawyer to support them through the process. Secondly, their success relies on the systems being able to accurately identify at what point human intervention may be necessary, which is yet to be clarified.
Relatedly, there are wider concerns about the future relationship between civil litigation and technology. Let’s take the example of a drone delivery causing an injury to a passerby; will liability lie with the courier, dispatcher, or a specific party to the supply chain? Is there a risk that these traditional personal injury claims become product liability claims, which are often more complex and, as a result, more costly? Moreover, how will ethical challenges to AI information be raised, and who is responsible for the checks and balances involved with ensuring the AI is functioning as expected?
Civil and commercial litigation may be viewed as separate sectors within legal, with clear disparities, but ultimately, technological advances are an accepted inevitably, which impact individuals as much as the corporate world. The aim surely should be to push towards more cohesion within litigation, with a united goal of using tech to support access to justice, to litigate in a greener way, and to enable lawyers to pursue the more complex, engaging work.
We may be looking a very different disputes model in the future, with an increasing focus on AI-driven decisions and analytics tools, but for now, we have an opportunity to learn from each other within litigation, and more broadly within the legal landscape, as we navigate through a very new digital world.