‘If we never do anything which has not been done before, nothing will change; the entire world will move on whilst the law remains the same and that will be bad for both the world and the law’ ~ Lord denning[1]
Human history is replete with dynamic changes driven by technology powered innovations and the 21st century is no exception. This century, known as the information technology age, has witnessed innovations such as Artificial Intelligence (AI), Cloud Computing, Machine Learning to mention but a few. The last twenty years have produced an unprecedented paradigm shift in the usage of technological tools and their impact on business transactions, economic relations and the legal market, cannot be ignored or taken for granted.
The infusion of technology into law practice and the justice system in Nigeria is taking root. For example, the proliferation of technology such as electronic mail, social media, video and conferencing applications have enhanced client-lawyer relationships. Clients communicate with and obtain advice from lawyers in real time, thereby dispensing with the hassle and expenses of in-person meetings.
The development of legal software solutions such as Computer Assisted Legal Research Applications- Law Pavilion, Nigeria Weekly Law Reports (NWLR) online, CompuLaw, NextCounsel, Practical Law, LexisNexis and Westlaw, assist the Bar and the Bench to carry out more efficient and effective legal research. Several software applications generate templates for contracts, Wills and other legal documents, reducing the time spent in creating these documents from scratch thereby increasing productivity. AI applications are fast becoming a one stop shop for legal software solutions and are referred to as the ‘Robot Lawyer’ as they are able to carry out more complex legal tasks.
In the justice sector, the National Judicial Council (“NJC”), through the instrumentality of the National Judicial Policy, recommended the use of Information Communications Technology (ICT) by all Courts in Nigeria.[2] Pursuant to the foregoing, in 2012, the Chairman of the NJC inaugurated the Judicial Information Technology Policy Formulation Committee tasked with the development of a comprehensive, pragmatic information technology policy for the Nigerian Judiciary. This brought about the Judicial Information Technology Policy (“the JIT Policy”) with several recommendations on the deployment and management of ICT within the Nigerian Judiciary.[3]
In a reaction to the disruption occasioned by the COVID-19 pandemic, the NJC in May 2020 released “Guidelines for Court sittings and related matters in the COVID-19 period” (the Guidelines”).[4] Various heads of Courts have also issued Practice Directions for remote hearing of cases during the pandemic amongst other issues.[5] A prominent feature of these Guidelines and Practice Directions is the implementation of virtual Court sittings/remote hearings. This generated a lot of controversy on the legality or otherwise of same.
This article will briefly outline some of the technology law firms may adopt to enhance provision of legal services to clients. It will also consider the use of technology in the delivery of justice. Finally, it will give a concise perspective on the constitutionality or otherwise of virtual Court proceedings.
THE USE OF TECHNOLOGY IN THE PROVISION OF LEGAL SERVICES AND JUSTICE DELIVERY
Legal Services
The benefits of technology in the delivery of legal services cannot be overemphasized. Innovative technology solutions enable lawyers perform their duties optimally thereby enhancing efficiency and productivity. There have been numerous arguments on the downsides. One of such arguments is that technology will eventually take the job of lawyers as the business model of law firms is highly dependent on billable hours. These argument fails in view of the fact that legal technology only exists to eliminate the time spent on mundane, labour intensive and administrative tasks and will not substitute for a lawyer’s creativity, instinct or judgment. Technology cannot deploy the emotional intelligence required in negotiations and personal rapport with clients neither will it replace the oral advocacy of Counsel in a Courtroom.
Some of the technology that lawyers may exploit are discussed below:
1. Microsoft 365- This is a one stop shop for a variety of tools required for the day to day running of a law firm such as Word, Excel, PowerPoint, SharePoint to create microsites, Outlook for emails, One Drive for storage and Teams for instant messaging, voice and video conferencing.[6]
2. Computer-Assisted Legal Research Applications include indigenous applications such as Law Pavilion, CompuLaw and NextCounsel with features that enhance productivity.
a. Law Pavilion Business Solutions has an electronic law report which covers cases from the Supreme Court and Court of Appeal of Nigeria; a Solicitor’s Tool Kit with Forms and Precedents for legal drafting, a database of Statutes, and case law on specific areas of law, amongst others. Its Prime version has a Practice Management System, Court Management System and Legal Analytics Solutions. The Law Pavilion Case Management System assists in managing schedules, workflow, information and judicial processes on behalf of legal practitioners.[7]
b. CompuLaw offers electronic database of legal materials both online and offline. Products offered include: a searchable repository of case law- Supreme Court case law from 1960 to date, indexed Laws of the Federation, daily legal news and events, law dictionary amongst others; Auto Retrieve.NG and Court Watch.NG (both of which are designed as Court Management Systems) and Judges Access which is a practice management solution.[8]
c. NextCounsel provides practice management solutions such as client relation management, case management, time management and account management. It aids proper organization, planning and keying of accurate time entries for client’s job which ensure accurate billing.[9]
3. Artificial Intelligence Applications simulate cognitive processes of the human mind and can carry out legal functions such as legal research and due diligence, ensure compliance, analyze and review contracts and documents and predict legal outcomes. This can be done in less time and without the mistakes usually overlooked by the human eye. ROSS, the world’s first AI lawyer is being engaged by lawyers in the United States and comes highly recommended.[10] In Nigeria, Law Pavilion in 2018, unveiled ‘TIMI’, Nigeria’s first AI Legal Assistant. Though the Application is still being developed to provide complex solutions, it currently carries out the functions of a Consultant that Lawyers can converse with. Presently it has only been programmed to guide a user through the Civil Procedure Rules of Nigerian Courts.[11] An Application of this nature operating at full capacity will be an asset to every legal establishment.
Justice Delivery
The judiciary is not left out in the scramble for the use of technology in boosting the delivery of justice. The National Judicial Policy makes provisions for the training and sensitization of Judicial Officers on optimal utilization of ICT tools and the internet for legal research purposes including electronic and digital recording and transcription of Court proceedings and processes.[12] Furthermore, to promote speedy and judicious disposal of corruption, economic crime and high-profile cases, the National Judicial Policy recommends the provision of proper infrastructure and ICT equipment.[13]
The JIT Policy, amongst others, recommends the use technology such as case management software, file tracking systems, virtual library, video conferencing, e-courts and e-filing to improve productivity and boost public confidence in the judiciary.[14]
It is interesting to note that some Courts have embraced the use of technology in obtaining the testimony of witnesses. This has led to Legal Practitioners having to cross-examine witnesses via video conferencing. The Federal High Court has engaged the use of Zoom as a tool for witnesses to give evidence. Kudos to the Judges of the High Court of Lagos State as they have also been forward thinking and have granted applications for giving evidence via video conferencing.
Unfortunately, the National Industrial Court recently denied an application for a witness who lives in Australia to give evidence via video conferencing, on the grounds that same is unknown to our laws. My Lord, however, went on to state that same is permissible in criminal but not civil proceedings and that in view of the recent directives by the NJC, the Counsel involved in the matter is at liberty to file a fresh application.
We are not unaware of the numerous obstacles that may hinder the adoption of the JIT Policy; however, we are hopeful that all Courts will continue to embrace the use of technology in proceedings as this may help save time and costs.
Constitutionality of Virtual Court Hearings
The implementation of virtual sittings/remote hearings has been controversial. As laudable as the use of technology with regards to virtual hearings is, there may be an underlying constitutional juggernaut, which could form a stumbling block to this approach. The major question with respect to this development is the constitutionality of virtual sittings and whether it satisfies the requirements of sections 36(3) and (4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended 2010) – the grund norm, which requires court proceedings to be heard in public.
Arguments abound that virtual/remote hearings are alien and unconstitutional and unless an amendment is made to modify pertinent sections of the Constitution, the unconstitutionality of virtual hearings could be used as grounds to set aside a judgment on appeal. Can we really say that virtual court hearing is unconstitutional?
The word public is not defined by the Constitution. According to Black’s Law Dictionary, it means “open or available for all to use, share or enjoy”.[15] In Kosebinu & Ors v. Alimi,[16] the Court of Appeal per Muhammad JCA stated as follows “It is my firm and considered view that a place qualifies under S.36 (3) of the 1999 Constitution to be called “public”, and which a regular Court room is, if it is outrightly accessible and not so accessible on the basis of the “permission” or “consent” of the Judge”.
The problem is that the word ‘public’ is confused for the word ‘physical’. Public does not in any way mean physical but means unconditional general accessibility. This could be virtual or physical. Additionally, the Constitution does not suggest that for a hearing to have been carried out in public, it must be heard in a Courtroom. Courts are known to visit the ‘locus in quo’ and carry on proceedings thereat. Therefore, in so far as the entire proceedings are made accessible to the public, it should meet the requirements of hearing ‘in public’.
It has been argued that the “waiting room” feature of the Zoom video conferencing application requiring the Convenor to let a Participant into a meeting negates the idea of unconditional general accessibility.
It should also be noted that the Constitution is a substantive law and not a procedural law, as such the Constitution does not outrightly spell out the procedural laws for Court sittings but empowers each head of Court to make rules and procedures in this regard.[17] Therefore, as long as the Guidelines and Practice Directions meet the requirements of public accessibility, then remote hearings cannot be said to be unconstitutional. It is pertinent to note that although the Practice Directions of the Lagos State Judiciary and the Federal High Court are not as detailed as the NJC Guidelines with regards to who may access a remote Court sitting, recourse may be had to the NJC Guidelines.
We are also not unaware of the fact that the National Assembly has taken a proactive step by commencing hearings for the amendment of the Constitution to cover up the alleged lacuna.[18]
Conclusion
Technology is the fuel that drives the practice of law in the 21st Century. No law firm will be able to survive without the use of technology as service delivery to its clientele would be almost impossible, thus affecting the productivity of the firm. The mantra “lawyers are learned” will no longer be accurate if lawyers are found wanting in the dynamics of technological changes. Lawyers as social engineers are at a vantage position to formulate policies and regulations that will guide the transformation occasioned by technology. Hence, the knowledge and exploitation of technological advancement will enhance a lawyer’s service delivery to clients and generally improve the justice system. The adaptability and sustainability of technology may pose several challenges, but it is my view that the adoption of same is a step in the right direction.
Agba Eimunjeze is the Managing Partner of Aarndale Solicitors a Lagos based commercial law firm.
[1] Packer v Packer (1953) 2 all e.r. 127.
[2] National Judicial Council, “The National Judicial Policy, <https://www.njc.gov.ng/national-judicial-policy> assessed 25th May 2020.
[3] Nigerian Judiciary Information Technology Policy Document of July 2012 <https://nji.gov.ng/images/PDF/JITPO_Policy_Document.pdf> accessed 25th May 2020
[4] National Judicial Council, Guidelines for Court sittings and other related matters in the COVID-19 Period, <https://njc.gov.ng/30/news-details> accessed 25th May 2020
[5] Practice Direction for the remote hearing of cases in the Lagos State Judiciary; Federal High Court of Nigeria Practice Directions 2020 for COVID 19 Period <https://www.lawyard.ng/2020/05/20/federal-high-court-of-nigeria-practice-directions-2020-for-covid-19-period-download/> accessed 25th May 2020
[6] Microsoft 365 <https://www.microsoft.com/en-ww/microsoft-365/business?market=ng> accessed 25th May 2020
[7] Law Pavilion, <https://lawpavilionplus.com/> accessed 25th May 2020; International Bar Association <https://www.ibanet.org/law-pavillion.aspx> accessed 25th May 2020
[8] Aderant CompuLaw <https://nextcounsel.com/> accessed 25th May 2020
[9] NextCounsel < https://nextcounsel.com/> accessed 25th May 2020
[10] ROSS <https://www.rossintelligence.com/> accessed 25th May 2020
[11] Peters Ifeoma ‘Law Pavilion unveils “TIMI” Nigeria’s first AI Legal Assistant” (DNL Legal & Style 21st August 2018) <https://dnllegalandstyle.com/2018/lawpavilion-unveils-timi-nigerias-first-artificial-intelligence-legal-assistant/> accessed 25th May 2020
[12] National Judicial Council, “The National Judicial Policy: Paras. 2.4.7 <https://www.njc.gov.ng/national-judicial-policy> assessed 26th May 2020.
[13] National Judicial Council, “The National Judicial Policy”: Paras 4.6 <https://www.njc.gov.ng/national-judicial-policy> assessed 26th May 2020.
[14] Nigerian Judiciary Information Technology Policy Document of July 2012 <https://nji.gov.ng/images/PDF/JITPO_Policy_Document.pdf> accessed 25th May 2020
[15] Black’s Law Dictionary (8th Edition) p 1264
[16] (2005) LPELR-11442 (CA) PP 20-24, Paras. C-F
[17] Sections 236, 248, 254, 259, 264, 269, 274, 279, and 284 of the 1999 Constitution of the Federal Republic of Nigeria (as amended 2010), empowers the Head of all superior Courts of records to make Rules and Procedures for their Courts.
[18] QueenEsther Iroanusi, “Nigeria Senate introduces Bill to legalise Court proceedings” (Premium Times Newspaper 12th May 2020) <https://www.premiumtimesng.com/news/headlines/392429-nigeria-senate-introduces-bill-to-legalise-virtual-court-proceedings.html> accessed 25th May 2020