DISCUSIÓN/IMPLICACIONES PARA LA PRÁCTICA

This chapter examines how information technology can support the role of the courts in providing access to justice. After examining what information needs people have when they experience justiciable pro- blems in the last chapter, we now look at the implications of those findings for the courts.

Some conclusions from the previous chapter relate to the role of courts in resolving justiciable problems:

– The most complex justiciable problems are the most difficult to re- solve.

– On the most complex problems, people need help (information, ad- vice, assistance, ADR) most.

– These problems are also the most likely to become court cases. – Going to court is stressful.

More specifically, this chapter examines what courts can do with infor- mation technology to meet the information needs that one-shotters have when it comes to resolving their justiciable problems. In order to answer that question, this chapter analyzes:

– The cases for which one-shotters come to court – Their related information needs

– How information technology can help to meet those needs.

The information needs are primarily individual information needs, re- lated to the problem in the case. However, there are also more general or collective information needs. They are related to the shadow func- tion of the law and to the image people have of courts. The need re- lated to the shadow function of the law is discussed first, in the section on keeping cases out of court. The specific information need related to the image people have of courts, and how that affects the resolution of their justiciable problems, is discussed in a special section.

Which cases come to court?

This section analyzes which cases come to court with one-shotters as li- tigants. To that end, we first go back to Galanter’s framework on party configurations in litigation between one-shotters and repeat players (those who are engaged in many similar procedures over time, repeat players). Galanter has constructed a model in the shape of a matrix showing the litigation configurations of repeat players and one-shot- ters. Next, we integrate this configuration into the matrix from the case processing chapter.

Figure 5 shows the types of cases that may come to court, by type of claimant and defendant. Galanter theorizes about the configurations:

Quadrant I: One-shotter vs. One-shotter: Most cases in this group are family cases.

Quadrant II: Repeat player vs. One-shotter: Repeat players use the courts for routine processing of claims against one-shotters. The great bulk of litigation is in this quadrant. The litigation can be characterized as routine mass processing. Even greater numbers of cases are settled, and settlements are shaped by possible litigation outcomes.

Quadrant III: One-shotter vs. Repeat player: Such cases come to court only infrequently except for personal injury cases. In auto injury claims, litigation is routinized and settlement is closely geared to possi- ble litigation outcomes.

Quadrant IV: Repeat player vs. Repeat player: Cases between repeat players do not generally come to court. Repeat players will try and es- tablish mutually beneficial relationships. For any dispute resolution,

they will rely on arbitration or other less official third parties. Finally, the government is a repeat player (Galanter 1974 p. 14-15).

To take up the conclusions from the case processing chapters on differ- ent groups of cases again in the context of access to justice, we go back to the case matrix developed in the case processing chapter. Figure 6 translates Galanter’s party configurations to the case matrix from the case processing chapters.

Figure 6 shows the most common party configurations in the case pro- cessing matrix. The matrix classifies cases according to the level of un- predictability of the outcome, and the level of cooperation between the parties affecting that outcome. The win-win cases lend themselves to forms of settlement, whereas the zero-sum cases are adjudicated more or less predictably.

Title group claimants are mostly repeat players. They have a routine way of handling claims, and taking cases to court is part of that rou- tine. Most one-shotters in this group will be potential respondents who choose not to contest the claim. They may well be helped with informa- Figure 5 Matrix of a Taxonomy of Litigation by Strategic Configuration of Parties

Defendant/ claimant

One-shotter Repeat player

One-shotter I OS vs. OS

Parent vs parent (custody) Spouse v. spouse (divorce) Family v. family member (insanity commitment) Family v. family (inheritance) Neighbor v. neighbor Partner v. partner

II RP vs. OS Prosecutor v. accused Finance co. v. debtor Landlord v. tenant I.R.S. v. taxpayer

Condemnor v. property owner

Repeat player

III OS vs. RP Welfare client v. agency Auto dealer v. manufacturer Injury victim v. insurance company Tenant v. landlord Bankrupt consumer v. creditors Defamed v. publisher IV RP vs. RP Union v. company

Movie distributor v. censorship board

Developer v. suburban municipality Purchaser v. supplier

Regulatory agency v. firms of regulated industry

tion on how they can settle to keep their case out of court. One-shotters who may have a defense will be helped with information on how to de- fend themselves or on finding help with it. If they decide to file a de- fense, the case moves to the judgment group or, in case of settlement, to the settlement group. Early user statistics for Money Claim On Line show a quick rise in individual organizations that file claims after MCOL first went live in early 2003 (MCOL 2004). This could mean there is a latent demand in the group of one-shotters who are potential claimants.

The notarial group comprises what Galanter calls pseudo-litigation. There is no real dispute between the parties. They mostly involve fa- mily and labor matters between one-shotters. Even a large part of the employers in the labor matters are one-shotters, individuals with small businesses. Courts are addressed ad hoc. Parties come to court because the law requires a judicial decision.13In the family cases, both the ini- tiators and the respondents are likely to be one-shotters: spouses re- questing a divorce because they have agreed to end their marriage, fa- mily members who request a provision for parental authority, an authorization for forced medical treatment, an insanity declaration. Some cases may require representation by a lawyer.

Cases involving relationships can be difficult to resolve. If there is a real dispute between the parties, the case moves to the right in the ma- trix, to the settlement group if it is settled during the life of the court Figure 6 Matrix of Party Configurations

zero –sum win-win unpredictable outcome 1 title Claimants repeat players 4 judgment 3 settlement 2 notarial predictable outcome Claimants repeat players Defendants repeat players or one-shotters Claimants + defendants one-shotters Any configuration Source: Chapter 3.2.

procedure, and to the judgment group if it ends in a judgment after ad- versarial proceedings.

Settlement group matters can be any party configuration. They may come to court because negotiations between the parties have stalled be- cause of a legal point, or because of something else that was insur- mountable for one of the parties. It could be they need help on a legal point, after which they can settle. Court help with settlement may well be most needed in unequal party configurations. This will prevent these matters from becoming group 4 cases.

The judgment group’s party configurations are similar to those of the title group, but now with a defendant. The most frequently occur- ring configuration will be with repeat players as claimants/initiators, and mostly one-shotters as defendants/respondents. Occasionally, de- fendants will be repeat players. Information needs in this group will, therefore, be diverse. One-shotters are likely to need help on how to bring a case to court as well as on the rules and regulations regarding their dispute.

Information needs for litigation

Next, we look at the information needs of one-shotters in the different groups. What do we know about their need for information, and how can courts help them to:

– Settle and stay out of court

– Bring their case to court well prepared so their case can be resolved in the best manner possible.

Keeping cases out of court

This section looks at information needs related to resolving cases with- out bringing them to court. The problem resolution process can be pictured as a continuum: Self-help first, then guidance for problem re- solution, with or without assistance, for a settlement that needs to be ratified by the court or not. A small percentage of justiciable problems will come to court. They come to court because the problem cannot be resolved otherwise and it is serious enough to be taken to court. How- ever, some problems come to court even though they could be resolved without it, because a court decision is a legal requirement.

In the last chapter, we learned the following:

– For the kind of justiciable problems that as a rule come to court, people always need advice.

– For those problems, they usually seek and find information.

– They need information on how to resolve problems, on rights and duties, on taking a case to court.

– To find information on resolving problems, they mostly go to spe- cialized organizations in the Netherlands, and to legal aid organiza- tions in the United Kingdom.

If guidance about court jurisprudence and policies should play a role in resolving problems, information on the policies needs to be available to those organizations as well as to individual information seekers. In practice, specialist organizations, such as the consumer associations or home owner associations communities build up their own knowledge bases. Those repositories are sometimes made available in their publi- cations and on their web sites. Depending on the organization’s web site’s business model, the information may be available to the general public in part, or as a whole. Nowadays, there are examples of specia- lized organizations to deal with damages suffered by large groups of one-shotters through one specific cause or event, like risky investment products or an accident, set up around a web site.

People may also need assistance with resolving their problem. The assistance can range from contacting the other party, to helping with a settlement, to forms of ADR. There is potential for settling a consi- derable number of cases that come to court. One-shotters tend to have little experience in resolving disputes. In the chapter on court case pro- cesses, we concluded that cooperation between the parties can produce a win-win outcome. One-shotters may need help with resolving their differences so they can bring a ready settlement to court. The example of labor contract dissolution in the notarial group illustrates how that can work. In Dutch court practice on labor contract termination, the employer generally initiates the termination procedure by filing the re- quest containing the agreement the parties have worked out before- hand. These requests make up the bulk of notarial group cases in the local courts (Van Velthoven 2005 p. 22).14About half of the employers initiating a procedure are individuals; the other half are legal bodies (Van Velthoven 2005 p. 29). We do not know what proportion of those legal bodies could be regarded as one-shotters. The policy developed by the local courts is public information; it is known in labor unions; and it is publicly available on the web sites of many organizations speciali- zing in providing information and support for either employers or em- ployees. In this win-win group, this example illustrates how informa- tion about norms that are applied by the court can help the parties.

This discussion of notarial group cases draws a picture of a land- scape of settling justiciable problems in different phases of their de- velopment, aided by court jurisprudence and policies. This kind of information rings of what Richard Susskind called the golden legal nuggets: punchy, jargon-free practical points, rather than detailed legal analysis (Susskind p. xlviii). Their basis may be no more than tenden- cies in decisions by lower courts, but also established case law or juris-

prudence. In the case of the justiciable problems for which the legal golden nuggets are not available, generating information on general trends is an option, possibly with technological support.

Some of the information to support out-of-court settlement can be laid down in policies, which in turn can be contained in court decision support systems. Court decision support systems help judges and courts to reach decisions. Van den Hoogen, referring to the require- ment of public, transparent administration of justice in the European Convention on Human Rights, advocates making decision support sys- tems public (Van den Hoogen p. 105). If they are public, they can also guide out-of-court solutions. However, making judicial decision support systems public may well change their character. It seems likely they will be regarded as norms or standards (Oskamp 2008). Legal and pro- blem solving cultures may be more geared toward informal dispute re- solution in some countries than in others. An indication could be that in the Netherlands, 7 percent of justiciable disputes end in an official decision; it is more than 14 percent in England and Wales. Such a dif- ference may signify more or less receptivity to the type of information service discussed in this chapter.

Bringing cases to court

This section will look into ways in which information technology can help one-shotters who need to take their case to court. There are a number of reasons why this question is relevant.

The first one is that correct, adequate information can enhance the procedural position of the court users, thereby giving one-shotters a better chance of a just and fair outcome of their case.

Second, a modern government organization can be expected to in- form the public clearly about its procedures. That holds for courts too.

The third reason needs a little more introduction. From the results of the Delta and Paths to Justice, we know that so far, almost no one- shotters come to court without having first received advice and/or as- sistance. They hardly ever come by themselves. At the same time, com- pulsory representation by a lawyer is gradually being reduced, at least in the Dutch system. The value amount for which claims can be filed in the local courts has been raised several times in the past ten years (Eshuis 1999 p. 9). It now stands atE 5,000. More than 74 percent of all civil cases were disposed in the local courts in 2007. There are plans to raise the amount toE 25,000 in 2011. Consequently, the pro- portion of civil cases handled in the local courts will grow. In the local courts, representation by a lawyer is not compulsory. As a result, in more and more cases parties can come to court, either without assis- tance or assisted by someone other than a lawyer.15In other areas, we see disintermediation: intermediaries disappearing or being bypassed

by communication on the Internet. The most striking are online banking and the travel business: instead of physically going to their bank for transactions, many people now manage their finances online. They also book flights, hotel rooms and theater tickets by themselves, bypassing travel agents. It is likely that court users will increasingly come to expect a similar level of service too.

Therefore, it is timely and useful to explore how these developments and expectations can be met. There is some indication of how some court users in the Netherlands experience the present information ser- vice provided by the courts. In 2007, a study commissioned by the Netherlands Council for the Judiciary evaluated existing communica- tion services and outlined improvement of information services for court users (Mein 2008). The study examined, among other things: – To what extent are court users provided with information about the

business and the course of things in court?

– How do they rate the information obtained, and how do their wishes compare with the actual situation?

The study interviewed approximately 250 court users before and/or after their hearing. The interviews were spread as much as possible over all sectors: criminal, administrative, local court, and civil (juveniles and estate division). Five court users were interviewed more in depth. The team also analyzed information materials and correspondence. They interviewed legal aid providers as well. The sample of users is very small, so the findings are indicative only. The findings indicate that information services for court users in the Netherlands are not very effective.

Most users do not actively seek and find information in preparation for their court case. There is a latent demand for information about the procedure, but users are unable to articulate their demand for legal ad- vice and assistance. Hence, they cannot seek and find information to prepare for their case. If users do go looking for information actively, lawyers are their most common source. That makes information ser- vice a fairly random process. Users have a passive attitude, partly due to feelings of guilt and shame. The users want to be informed by a clearly written letter from the court. They are not interested in modern media.

People are altogether relatively satisfied about their court experience. This positive evaluation is caused mainly by the attitude they encounter from the judge in court.

The information provided by the courts in letters and leaflets focuses on the sender of the information and the sender’s needs. Legal correct- ness and procedural functionality are the main criteria. The informa- tion is not geared to answering questions; it does not take the recipient of the information into account.

Users get their information from other sources as well: lawyers, legal kiosks, bailiffs, the prosecution. Bailiffs, legal service providers, clerks and ushers all give information. This information is neither coherent nor coordinated.

The study concludes that “paradigmatic change” is needed. It makes some recommendations. The style of the information service needs to be reconsidered. A more proactive, demand oriented and differentiated information service deserves recommendation. This also involves a re- consideration of the implications of the rule that courts do not give le- gal advice. The study has not given a more detailed recommendation with regard to this rule. I feel the rule itself should not be reconsid-