Will defensive litigation publishing be the prelude to courts going digital and online?

Looking out from the civil division of the San Francisco Superior Court

In July of 2015, a few weeks after a San Francisco court ruled on the case that this site examines — in which I was the unwilling plaintiff — a summing-up that fit a civil court denying a litigant the basic requirements of a fair trial caught my eye in the lead review in the books section of The New York Times. The reviewer was George Packer — a New Yorker journalist, political analyst, and son of a Stanford professor of law. His subjects were two books about the explosion of populist anger in U.S. politics, one by Chris Hedges, an author on the extreme left awarded a Pulitzer prize; the other by Charles Murray, a political theorist on the libertarian right.

The gap between their perspectives on American government and public policy could hardly be wider. Yet Packer noted:

Both describe the legal system as essentially lawless.

Hardly any non-experts are aware of this fact — or if they are in a general way, they know little or nothing about the specifics.

Litigation is all about information. Delivering justice is supposed to be a transparent public process that we taxpayers finance and own. Yet except for the occasional high-profile case, litigation happens so far out of public view that it might as well be conducted in secret. Courts across the entire English-speaking world — including America’s — have barely been nudged by the everything-on-the-net information age.

In Britain, a judge near the summit of the judiciary — Lord Justice Briggs, who has been drafting detailed plans for moving British justice online — declared last year that ‘the courts, and civil courts in particular, have been left behind in the digital revolution.’ He has vowed that the introduction of what he tentatively calls the Online Court ‘will fail over my dead body.’ It is to include an optionally lawyer-free process allowing litigants to ‘articulate their grievance in a form (but not jargon)’ that will make it easy for the court to grasp its essentials, and to upload all their documents and supporting evidence. (Other notable details include rules written not in legalese but plain language.)

Keenly aware of the legal community’s lack of enthusiasm for these developments, Briggs LJ has said that for a while, one segment of the profession viewed actively supporting them as the equivalent of ‘turkeys voting for Christmas.’ No occupational class is better equipped to obstruct change. Last autumn, California’s Commission for Judicial Performance — whose job is to discipline errant and unethical judges — sued the state’s Auditor to block an investigation into its operation ordered by legislators. Described as a ‘toothless watchdog’ in The San Francisco Chronicle last year, the Commission works in deepest obscurity: its methods have never been subjected to public inspection in the six decades since its appointment.

Lawyers and judges know that the legal system is so flawed that sweeping reforms would be needed urgently even without pressure from the digital revolution — not just in Britain and the U.S., but every other legal system in the English common law tradition.

In 2013, Deputy Chief Justice Faulks of the Family Court of Australia said at a conference co-sponsored by the National Judicial College:

The legal profession is one which guards its turf jealously. … [I]f courts remind themselves that access to justice requires that it should be to all “without fear or favour, affection or ill-will” then it follows that we should place all of our processes, language, practices and assistance under the microscope of that access to justice …

But how is the digitisation and opening-up of law and the courts most likely to happen? Even professional forecasters and planners are seldom right when they predict the tipping-points for technological change. Dan Bricklin, the co-creator of VisiCalc — the spreadsheet ‘killer app’ software that unexpectedly helped to make a mass market in personal computers in the early 1980s — believes that mobile phone sales took off not because people bought them to check share prices or place stock trading orders, as technology experts expected, but because carrying one made purchasers feel safer, and because using one made communication more intimate and addictive.

Could truly open litigation begin not through judicial schemes or commands but spontaneous new developments? For example, through the defensive publishing on the net of court filings, which are part of the public record — to counter demonstrably false and even libellous statements about litigants? Statements made not just by their legal opponents but by judges, through judicial error or impropriety?

Society, not just individuals, needs the independent duplication of these documents online. Evidence of judicial failure is going to be harder for legal reformers and historians to gather in the future — because of a programme of systematic destruction of court records being implemented across America, a fact to which two exemplary younger judges in a court near San Francisco drew the attention of everyone present at a meeting I attended in the summer of 2015.

This site accounts for distortions of trial testimony on significant facts about me and my life in the decision by the San Francisco trial court that was somehow published online, within days of that judgement. Statements of decision by this court were not officially published on the net in 2015 — nor are they now.

I am also posting evidence strongly suggesting that the trial court mis-cited and misapplied the law in justifying its judgement against me, a case in which my former domestic partner of 16 years — a family law practitioner for nearly four decades — is a part-time judicial officer at the same trial venue. You, reader, are free to draw your own conclusions from the legal guidelines and actual filings to which I will be linking, and must make up your mind about whether or not the very strange proceedings constitute a denial of ‘due process,’ or natural justice. You can decide whether even half the abnormalities listed on the web page titled A Surreal Trial would be there if court proceedings were transparent — open, online, and easily accessible by anyone, in real time.

No members of the public attended this trial held in a courtroom tucked away in a seldom-visited corner of the top floor of the San Francisco Superior Court.

Could a trial remotely like it be even conceivable if, as Lord Justice Briggs has tentatively proposed for his Online Court in Britain, the proceedings had been conducted almost exclusively through exchanges of tamper-proof documents?

Would its grave procedural deficiencies have been tolerated by an audience of interested citizens for the trial streamed live? That is, by people capable of understanding that they might well have been watching what Charles Murray, the author of By the People — one subject of the review mentioned at the start of this article — calls law ‘indistinguishable from lawlessness’?

Other parts of COTIN inspect the trial court’s treatment of the facts of this case and its application of the law.

N.B.: Friends have asked why I did not choose a different court. The answer is that it is close to impossible to find a lawyer to represent you in a legal action against a defendant who is not merely a member of the profession, but practising in the same general area of litigation. The only attorney I found brave enough to risk the wrath of his colleagues was offended by any suggestion that the San Francisco trial venue might be incapable of rendering justice impartially, in spite of the glaring conflict of interest in my former partner’s position on the bench.