Section VI

Maintaining the Pace of Change

Chapter 21    Information Technology

Introduction
1.    In chapter 13 of the interim report, I stressed the importance of the role of information technology (IT) in supporting the implementation of my more general recommendations. I looked, in broad terms, at some potential applications of IT and also addressed central questions of costs, infrastructure and strategy. The additional information I have received since the publication of that report, both here and abroad, has strengthened my conviction that sensible investment in appropriate technology is fundamental to the future of our civil justice system. IT will not only assist in streamlining and improving our existing systems and processes; it is also likely, in due course, itself to be a catalyst for radical change as well. It is necessary now to distinguish between those systems which can be implemented quite quickly, bringing immediate benefits, and those which are far longer term ventures. Our planning must reflect this distinction.

2.    This chapter builds on the interim report in two ways. First, as I undertook to do, I summarise the progress that has been made during the intervening year in respect of each of the nine recommendations on IT that I put forward. Most of these anticipated some short term actions. Second, I consider three related topics in further detail - judicial case management technology, the Private Finance Initiative (PFI) procurement scheme and IT strategy for the civil justice system - and I make further recommendations in respect of each. These are fundamental, as they concern the tools needed to support my main proposals, the infrastructure and financing of the required technology and the way in which progress can be planned and controlled.

3.    This chapter must be read against the background of the procurement exercise in which the Court Service is currently engaged under the PFI. The main focus of this is the system known as LOCCS (the Local County Court System). It is generally anticipated that the scheme will lead to the establishment of a long term partnership between the Court Service and the selected private sector PFI provider. In due course, this relationship will extend well beyond LOCCS and this provider will deliver most, if not all, IT services to the civil courts. This PFI project is a major (and not uncontroversial) initiative of considerable significance to the civil justice system. It bears on most IT-related issues arising for the court system.

Progress since the interim report
4.    My first recommendation was directly related to this initiative. It was that consideration should be given to the extent to which my proposed IT requirements for case management could be integrated into the LOCCS framework. I have since been assured by specialists in the Court Service that, from a technical point of view, they are confident that the modular approach they have taken to the development of LOCCS and the use of PFI could indeed provide an appropriate platform for the implementation of the new case management procedures which I am recommending in this report.

5.    My second recommendation focused on judges. They should be fully equipped with appropriate IT. I encouraged wider consultation on the needs of all judges and not just those who are already enthusiastic about technology. I also expressed the view that there should be more comprehensive in-house training and technical support to encourage substantial uptake amongst judicial users. I understand the current position to be that, under the JUDITH project, around 330 judges have now been supplied with personal computers, a number of which are regularly connected to the judicial communications network known as FELIX. Further, the JUDITH project board has agreed with representatives of JSCIT (the Judicial Standing Committee on Information Technology) that a Post Implementation Review (PIR) of the JUDITH project should be carried out in the final quarter of 1996. This will assess the benefits of the project to date, identify lessons to be learned and make recommendations for the future. Procedures for judicial training on IT are also said to have been improved, with peer group training programmes and arrangements for judicial cover in place. More remains to be done and later paragraphs of this chapter deal with various applications of judicial and courtroom IT in an attempt to suggest a way ahead (see paragraphs 13-23). IT training is not likely to be cheap, but the Judicial Studies Board should be resourced appropriately to make sure it happens.

6.    My third recommendation was for the more widespread use of litigation support technologies (document indexing, full text retrieval and document image processing) within the legal profession to assist with the management of document loads in preparation for trials; and, more specifically, to help cope with discovery. My general impression has been that litigation support systems do continue to be used in earnest by many solicitors and barristers but no more so during the past year than before. Advocates of these systems still speak forcefully of their benefits and I continue to believe that they will bring cost savings and improvements in quality and productivity which can benefit clients and lawyers alike. To encourage greater usage within the professions, I would like to call on the energies and experience of the Society for Computers and Law, assisted, where appropriate, by ITAC (the Information Technology and Courts Committee) to build on the solid work of the Official Referees' Solicitors' Association which produced the ORSA Protocol. This is ORSA's set of standard formats which encourage opposing parties to agree compatible systems and, where possible, to share the costs of setting up these systems. I have in mind that an extended protocol might be developed for use across the entire civil justice system. The developing use of IT will also require separate consideration on the question of the recoverability of expense incurred on IT in the course of dispute resolution, a matter of ongoing uncertainty for litigants and so still of concern to me. A decision is required on whether the cost of IT should be included in general overheads and/or whether, in specific cases, the costs of specially tailored systems can be recovered.

7.    Telephone and video conferencing facilities were the subject of my fourth recommendation. I suggested these technologies be piloted with a view to helping procedural judges (in particular) with case management. I understand from the Court Service that the successful LOCCS/PFI supplier will, in due course, be asked to assess the feasibility and costs of video conferencing facilities, although this will not be a mandatory service under the contract and work will not commence before the successful provider starts the service delivery for LOCCS. Although I would have preferred earlier piloting of the technology and I am to that extent disappointed, I appreciate that this may have been difficult in the light of the PFI project. I do reiterate, however, that I anticipate, in the medium and long term, that video conferencing will be one vital tool for case management. Further consideration should be given as to whether this should be reflected in the contractual arrangements with the PFI supplier. As for telephone conferencing, I understand that the Court Service is to consider its potential later this year and identify the technical changes and costs involved in its widespread introduction. This is a matter of more immediate concern to me because I regard telephone conferencing a very important tool for judicial case management. I address this in more detail in paragraph 21 of this chapter.

8.    My fifth recommendation was that video recording and viewing facilities should be introduced in appropriate centres to assist with the presentation of expert evidence, the replay of pre-recorded statements and the examination of expert witnesses. I am told that adequate television and video recording facilities are now readily available at most trial centres. The challenge is to integrate this technology with everyday court practice.

9.    My sixth recommendation suggested that technology could provide the basis for information systems, available in court buildings and other public places, to guide the public on court and legal matters. I saw potential in the use of dedicated kiosk technology. Other developments during the past year have refined my views. The global information system, known as the World Wide Web, has gained enormously in popularity. The Court Service has its own Web site and is working on the electronic publication of guidance for court users. Given the projected level of usage of the World Wide Web, this should be one of the preferred means of delivery of information for the public. Additionally, I am impressed by the idea of using more general community information systems for the delivery of legal guidance. For example, the Chief Clerk on the Midland and Oxford Circuit of the Court Service has agreed with Lincolnshire County Council that he may place guidance onto their system (called LINNET) which provides a wide variety of general, local information. This is an eminently sensible precedent which should be extended when opportunities arise.

10.    My seventh recommendation was for clarification of government policy in relation to the allegedly excessive costs being levied by HMSO for permission to reproduce primary legal source materials - especially statutes - in electronic form. Around the date of publication of my interim report, there was considerable and passionate debate about the extent to which access to legal materials in electronic form should incur any cost whatsoever. Since then, however, there have been very considerable developments. On 12 February 1996 it was announced by the government that the liberal licensing position which has applied in the past to printed statutes would now extend to their reproduction in electronic form. And both Houses of Parliament have also expressed interest and reported on the subject. Overall, so long as the government's concessions extend also to those additional materials which are important for the interpretation of the primary sources, I believe that the current public policy and application of Crown copyright now support rather than inhibit the widespread use of legal information systems for lawyers and the public at large.

11.    My eighth recommendation was that there should be an evaluation of the implications of the proposed PFI procurement scheme. The procurement exercise may well lead to the development and introduction of advanced systems which might otherwise not be possible, and I continue to support this. I also raised the question of whether the IT infrastructure of the civil justice system should be run by the private sector. I drew particular attention to the challenge of retaining control over policy and strategy where there are powerful and capable service providers running the IT infrastructure. I am assured by the Court Service that it is fully aware of the risks of dealing with a large multi-national service provider and that the appropriate safeguards will be put in place to ensure that control is retained by the Court Service and the Lord Chancellor's Department. I am also told that similar controls will be in place to enable other sponsors and stakeholders to be fully involved with the design and development of systems. Nevertheless, this is so central an issue that I have chosen to express my views more fully later in this chapter in the hope that these will provide a useful benchmark for the Court Service and will clarify others' understanding of the scope and nature of the project.

12.    My ninth and final recommendation was that the provision of IT in the civil justice system should be co-ordinated, involving all the key bodies, such as the Judicial Studies Board, who are affected and involved. This is currently subject to the attention of the Court Service, with a view to establishing a strategic body for the development and review of IT strategy for the courts. This is again a vital issue for the future of the civil justice system generally, so I return to it later.

Judicial case management technology
13.    Turning now to the future, judges will need support in facing the challenges and fulfilling the demands of case management. Here IT should play a major role. There are two broad categories of what can be called 'case management systems'. These overlap. There are case load management systems, which assist in the management of a group of cases, with particular attention to the allocation of all the resources involved (courtrooms, judges and witnesses for example). On the other hand, there are case flow management systems, which in a variety of ways support the management and progress of individual cases, from inception through to final disposal. I believe both categories of systems are crucial if judicial case management is to succeed. In turn, they are closely associated with the more general applications of technology for judges and the courts.

14.    Turning, first, to case load management, I have one major recommendation to make - that a distinct project be launched to address the many ways in which existing and projected court administration systems can and should be extended for use as soon as possible by judges (and later by others, including lawyers and their clients). The principal challenge, therefore, is to extend and to make more widely available any case load management facilities of systems such as LOCCS and, indeed, those of all systems which deal with the allocation of resources, the scheduling of judges' workloads and the listing of cases, including the electronic diarising of cases. Concern has been expressed by judges that this extension of systems to them is not being made. Yet, if judges are to be responsible for the management of individual cases, they must also have ready access to information about groups of cases as well. It is here we see the overlap between the two categories of case management systems, because case load management systems should hold all manner of useful and up-to-date information about the status and progress of individual cases; and judges and parties would find it invaluable to have access to this information. The PFI suppliers must be alive to this project, because it will be a natural extension of the systems they are to take over and run.

15.    With regard to case flow management, I can see here some immediate benefits as well as some very promising longer term possibilities. My assessors have explored this field in depth over the past year - and have developed a small prototype personal computer-based system to demonstrate some of the initial ideas, including techniques for allocating cases to the correct tracks - and so it is appropriate to deal with this matter in some detail.

16.    A sensible starting point is the need to develop some standard techniques for judicial case management. Some judges are already adept at managing their cases while others will need training and encouragement. One possibility is to regard each case as a separate project; each, from the outset, with its own phases, activities, tasks and events and each to be driven through to final disposal against allocated time scales. The judge could be said to have two responsibilities in this context. The first is to formulate a case plan, which will specify, and stipulate time frames for, all relevant phases, activities, tasks and events; and the second is to progress each case by reference to its own case plan.

17.    In developing case plans, however, judges and the parties themselves should have access to standards and guidelines. These should provide basic models and illustrations of case plans for various categories of cases, with standard life cycles assigned by the court for each. This will assist the parties to give judges concrete help in pinpointing all central tasks, identifying the critical paths, and recognising those milestones which may and may not be subject to variation, as well as the preferred elapsed timescales for entire cases or phases within cases. Thus, when judges come to draw up individual case plans, they will not do so in a vacuum but will have basic common structures within which to operate. These could be refined and developed as experience of using them becomes more general. These basic structures would also help lawyers and their clients to know what is expected of them and will provide greater insight into the likely progress of the types of cases with which they are involved. We already have positive experience, here and abroad, of case management by solicitors. It has been popular with lawyers and clients alike, with everyone seeming to feel comfortable with the greater certainty that it brings.

18.    New tools are needed for judges, especially as so much of this kind of work (plans and schedules, for instance) is best expressed graphically rather than in words. IT should be of help here because there are a wide variety of project management systems available which are designed precisely to create easily understood graphics of the sort I envisage. I suggest, at this early stage in the evolution of judicial case management, that very simple, PC-based project management software is gradually made available to all judges to enable them to generate their own case plans. This software should be tailored so that, for example, the use of a fairly basic project schedule is possible, one which clearly depicts time spans (of phases, activities and tasks), particular events (say, milestones), and any dependencies that there might be (for example, that one phase cannot begin until the achievement of some milestone). When a case is being reviewed or further aspects are being planned, such a schedule should also be able to show what progress has been made against individual project steps (project managers would call such a schedule a combined Gantt Chart and Milestone Schedule).

19.    Such systems can be extremely easy for any computer user to master (about an hour's training for an already competent computer user). The schedules themselves can be generated either by directly entering symbols and lines onto the charts; or, far easier, by completing a simple form, responses to which would then automatically create the appropriate lengths of bars and so forth. Inexpensive, off-the-shelf packages can be used for this purpose, although it would be necessary to tailor such a system for judges so that there would be standardisation of notation (for instance, the same symbols should be used across the court system for the same types of milestone). Ideally, the tailoring should also extend to the loading of the standard models for particular categories of case, so that all the basic phases and milestones - a basic structure - would be dropped into place on the screen of the judge who would then be free to focus on the specifics of timing and resources of any case at hand. The schedules themselves can also be 'cut and pasted' from the project management package into a standard word processing system, so that the charts and commentary can all be incorporated in the one document.

20.    I am optimistic that this kind of tool could be introduced very rapidly to the judiciary and would become central to judges' use of IT. Experience gained by the first group of judicial users would be invaluable as the basis for the gradual introduction of this system across the entire judiciary. The development of such a tool must clearly be a collaborative venture, involving, at least, the Court Service, the PFI supplier, the Judicial Studies Board, judges (beginners as well as advanced users) and the profession. I recommend that a working group (with representatives of each) is set up immediately to analyse and specify the requirements of case flow management of the kind I have described. That work should investigate and allow for a variety of enhancements, such as systems which will produce daily reminders, progress reports and lists of outstanding tasks (indicating who is responsible for further actions). I suggest that the relevant technologies, usually described as 'workflow' and 'groupware', be explored in this context. I would hope the work of my proposed working group can progress hand-in-hand with the plans for the practical implementation of my general case management proposals. Subject to the timing of that more general work, I would like to see the working group's project finished within six months and training and implementation to follow immediately thereafter for all judges currently equipped with appropriate IT, and extended to others as they are provided with systems.

Telephone conferencing
21.    Another basic tool for judicial case management is telephone conferencing. There are mixed views on the potential scope of this technology. Those who are sceptical claim that information is lost where there is no eye contact or body language. Proponents, on the other hand, suggest that the purpose of telephone conferencing is not to replace existing hearings or meetings but to encourage greater, proactive communication where in the past there may have been silence. For judicial case management, regular telephone conferencing should become an important tool for judges in maintaining the progress of cases where formal meetings would be impractical. At the very least, I recommend, as I did in my interim report, that this technology is piloted extensively so that decisions about its applicability can be based on practical and extensive experience.

The future
22.    In the longer term in relation to case flow management, although not technically feasible today, advances in telecommunications technology will eventually enable judges to be able to gain access to the entire set of documents relating to the individual cases on which they are working - including full case histories, pleadings, affidavits, orders and document bundles, for example - and to retrieve these, either as images or as searchable text, from some central location. These documents would be accessible from anywhere, so long as the judge had appropriate computer and telecommunications equipment. And far more powerful video conferencing facilities are also in sight. These possibilities should be monitored as part of the long term strategic planning process to which I refer in paragraph 36.

23.    Other basic applications of technology for judges will also be invaluable in supporting both the conventional judicial role, as well as the extended case management responsibilities of judges. Electronic communications technology will allow judges to send and receive messages and documents, communicating internally with other judges, externally across the profession generally, to and from any location. In the courtroom itself, judges will increasingly use laptops to take notes and to produce standard text, while document storage, retrieval and display technologies will facilitate speedier and more efficient management of documents. The pilot project in the Exeter group of courts also suggests that IT can support team working by judges.

The Private Finance Initiative procurement scheme
24.    There have been a variety of forceful objections to the PFI procurement scheme. The objections raise political issues on which I do not consider it appropriate to comment. However, I am advised that the PFI/IT project offers an unparalleled opportunity to put in place an adequately funded, first rate IT infrastructure for the court system, with powerful applications in court administration, case management and in the courtroom, and backed up by thoroughly professional support, maintenance and training. Experts agree that this comprehensive introduction of IT to the courts would give rise to major cost savings and, in turn, enable and fuel further investment in the PFI project itself. Furthermore, the improved and streamlined court system which should result will help this country to continue to provide a world class civil justice system for many years to come.

25.    I accept also, however, that there are threats and pitfalls which arise from the proposed PFI project and these must be understood widely and addressed squarely. There is widespread concern that policy, strategy and control of future developments in these areas may, unless appropriate precautions are in place, be lost to the third party private sector supplier which is eventually selected. There is also the worry that increasing reliance on an external third party for so vital a social function may create a monopoly situation in which transfer of the service to another party in the future may be impractical.

26.    In order to realise the opportunities and, at the same time, to tackle the threats just noted in the previous paragraph, I suggest four initial steps are taken (notwithstanding the reassurances I have been given - see paragraph 11). First, ministers and senior judges, agency and departmental policy makers should be seen personally to be involved, proactively, with the progress of this project and not simply in responding to criticisms. Although the project relates to IT, its implications go well beyond technology - to the heart of the legal system and to the core of society itself. This is not simply an outsourcing exercise. IT will be the foundation of the court system in the near future and now is the time that it should be seen to be receiving attention at the highest levels. Second, the Court Service must be seen to recognise that the management of the third party providers, under the proposed project, should be undertaken largely by its senior management and not by technical specialists. Third, other branches of the professions, the judges and relevant bodies should have a reasonable opportunity to specify their own requirements, for these might have a direct bearing on the shape of the project. Fourth, the legal profession and the public at large should be formally assured that the ongoing effects of the PFI project will be monitored and evaluated regularly and independently.

27.    To put the PFI work in context and to move forward generally, we also need a widely agreed vision of what our IT-based court system should look like in, say, seven to 10 years. I recommend the development of an exhibit - a 'Courtroom of the Future' - a step that has been taken both in the USA and Australia to capture a model of, and to stimulate interest in, the future. Additionally, we must also have a full IT strategy for the courts extending in detail for the medium term; and reaching in aspiration well beyond this period.

IT strategy for the civil justice system
28.    In my interim report, I expressed concern on a number of occasions about the lack of co-ordination of IT across the civil justice system. Greater co-ordination, I argued, should lead to an overarching strategy for the civil justice system. Little progress has been made in this direction, however, and so significant problems remain.

29.    A stumbling block is that various agencies within the civil justice system and the justice system as a whole are pursuing their own individual initiatives concurrently but with little mutual regard, which has resulted both in unnecessary duplication of effort as well as in incompatible systems (or at least systems which do not operate alongside one another). Electronic communication is a prime illustration. The FELIX system has been developed for the exclusive use of around 300 judges, although its actual user base is much smaller. A more general purpose system - LINK - is said to be in use by over 7,000 practising lawyers, and countless other lawyers and judges are reported to be using the Internet. If judicial case management is to become a reality - and I pick this as but one example of the need for co-ordination - it is surely sensible that all participants in the legal process can communicate easily with one another across the same system (while still preserving the facility for individuals to communicate in complete security with each other). Yet this is unlikely to happen unless there is some overarching attempt to co-ordinate, guide and lay down sensible standards for all interested parties.

30.    In summary, the civil justice system is treated today as though it were a collection of separate information systems; and there has been no effective mechanism in the past for bringing these together as one coherent system. What is needed is a more strategic, co-ordinated and longer term approach for the entire system. I am convinced, both from consultation here and abroad, that it is possible (technically and logistically) to have such an overarching IT strategy for the civil justice system; and I have no doubt also that this approach is both desirable and necessary if the applications I am recommending are to be put in place cost effectively and in a way that is most likely to lead to substantial uptake across the court system and within the profession.

31.    I have in mind that the strategic IT planning should be in two dimensions: one should relate to the medium term (two to four years) and the other should have a far longer term focus (five to 10 years). Both strategic plans should state clearly (but with differing and appropriate degrees of confidence and detail) what the civil justice system intends to achieve through technology and why (in social and economic terms). The plans should be widely available and also indicate how the objectives and the vision are to be realised, within what timescales and with what interim achievements. This is standard practice for any major organisation investing in IT.

32.    The development of the medium term plans should remain the province of the Court Service. But there should be a new, formal mechanism for other relevant bodies and agencies (for example, the Bar, solicitors and judges) to contribute to the strategic thinking and to have a realistic opportunity to comment upon draft proposals (see paragraph 34).

33.    As to the responsibility for the development of the long term plans, I can see, of course, because this topic goes to heart of the Court Service, that again this Agency must play a prime role in the exercise. However, there are many other interested parties - not the least of whom are the judges, the Judicial Studies Board, the Bar, solicitors, consumer bodies and advice centres - and they too must have a genuine opportunity to shape the future. There is a need for a body, in which they can be involved, charged with the responsibility of articulating the long term IT strategy for the civil justice system.

34.    Accordingly, I recommend the establishment of a new independent body, which in due course should become attached, as a sub-committee, to the proposed Civil Justice Council. The body will have four main responsibilities. First, it will be responsible for promoting the development of the long term IT strategy to be implemented by the Court Service for the entire civil justice system. Secondly, it will be a review body through which the medium term IT plans of the Court Service should be passed and, thirdly, the body will monitor and report on the progress of the PFI. Fourthly it will have to co-ordinate initiatives in other parts of the justice system. This body will have to show leadership and general direction for the use of IT in the civil justice system.

35.    In the first instance, the group should develop a high level statement, which would provide a broad vision of IT in the civil justice system, offering overall direction and purpose and providing, I would suggest, some basic standards, parameters and guidelines.

36.    This broad, high level, long term strategic statement would indeed represent the long term view. I have in mind a period of anything up to 10 years. I am fully aware that there may be all manner of changes within the world of IT within this period. Nonetheless, we can look ahead with some confidence, on the strength of current laboratory activities and developments in other industries, and recognise, for example, that video conferencing, document image processing, video and audio recording of evidence and voice recognition could exert enormous influence on the manner in which we practise law and administer justice in this country. The general thrust, therefore, in the long term planning would be to present a vision of where we would like to be in seven to 10 years' time.

37.    A further issue is the way in which the PFI project bears on the development of the strategy. It has been suggested to me that it may be too late to develop the overarching long term strategy which I have in mind because the PFI scheme has already progressed so far. I do not think that this is the case. As I have explained in paragraph 3, the main focus of the PFI project today is LOCCS. The details of the longer term relationship which is anticipated have not yet been settled.

38.    It must also be recognised that the development of an IT strategy for the civil justice system in isolation would of itself be a short sighted exercise. Given that the civil and criminal systems share so many resources (buildings, judges, listing facilities and administrators, for example), there can be no question that the optimum approach to IT strategy would be one that produced a long term framework for the justice system as a whole, thereby bringing together the civil and criminal dimensions. The new body which I am proposing must therefore work hand in hand with those responsible for IT in the criminal justice system, including CCCJS (Co-ordination of the Computerisation of the Criminal Justice System).

Recommendations
My main recommendations are as follows.

(1) A new independent and representative IT strategy body should be set up, which in due course should become attached, as a sub-committee, to the proposed Civil Justice Council. This body should have four main responsibilities. First, it should be responsible for promoting the development of long term IT strategy to be implemented by the Court Service for the entire civil justice system. Secondly, it should be a review body through which the medium term IT plans of the Court Service should be passed. Thirdly, the body should monitor and report on the progress of the PFI exercise. Fourthly, it should co-ordinate initiatives in other parts of the justice system.

(2) There should be close liaison between the new body and those responsible for IT in the criminal justice system, so that there is a coherent approach to IT across the entire justice system.

(3) A project should be launched to address the ways in which existing court administration systems can and should be extended for use by judges (and by others, including lawyers and their clients), especially the caseload management facilities which deal with the allocation of resources, the scheduling of judges' workloads, the listing of cases and the electronic diarising of cases.

(4) A working group (involving, at least, the Court Service, the PFI supplier and judges) should be set up to analyse and specify the requirements of simple, PC-based case flow management systems for judges.

(5) A 'Courtroom of the Future' exhibition should be created, similar to those in the USA and Australia, to capture a vision of, and to stimulate interest in, the future.

(6) Telephone conferencing should be piloted more extensively so that decisions about its applicability for case management can be based on practical and extensive experience.

(7) An extended civil litigation protocol should be developed for use across the entire civil justice system, building on the protocol developed by the Official Referees' Solicitors' Association.