Article published in LEXBASE PROFESSION AVOCAT on October 17, 2019

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The ever-increasing use of artificial intelligence to resolve legal disputes has led lawyers to speak of "augmented" lawyers, judges and arbitrators. By this expression, we mean that their analysis and decision-making capacity are enhanced by artificial intelligence, the processing of legal data by algorithms and new technologies; just as our perception of reality can be "augmented" by the impression in our senses of virtual digital objects that merge with physical objects.

Alongside the necessary training in these new technologies, it is in the interest of the legal profession to also train in the tools of emotional intelligence. The "rise" of the jurist depends more on maintaining quality human relations than on mastering new technologies in the field of law and justice.

It is undeniable that recent procedural reforms, in both civil and criminal law, have endorsed and increased the development of dematerialized methods of dispute resolution, for example, the use of online resolution methods and video-conference hearings. Admittedly, in two rulings this year, one on March 21, 2019 and the other on September 20, 2019, the Constitutional Council reiterated its commitment to maintaining a real hearing of a detainee or police officer before a magistrate. However, with regard to pre-trial detention, the September 20, 2019 decision still allows video-conference hearings to coexist with physical hearings, to the detriment of the number of the latter.

This dematerialization is not without danger for the quality of justice and respect for the rules of fair trial. Technology must be at the service of human beings. It must be subject to ethical principles and, in judicial matters, respect the rules of fair trial: "Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal...". The drafters of the European Convention on Human Rights never envisaged that a robot could be a tribunal within the meaning of Article 6 of the Convention. What will the European Court of Human Rights decide when the question of the conformity with the Convention of the robot-judge set up by Estonia to try "minor" offences is submitted to it?

In an article entitled "Justice numérique, justice inique?", published in Les cahiers de la Justice (éditions Dalloz) in July 2019, Professor Emmanuel Jeuland examines the risks posed by the development of dematerialized dispute resolution methods to the quality of justice and access to it.

His questioning is legitimate.

It is all the more worrying in that the legislator, under the pretext of simplification, is constantly making procedures more rigid, with provisions, both current and planned, requiring, for example, all legal arguments to be presented in the first written pleadings, and restricting the means of appeal, both on appeal through the complexity of the procedure, and on appeal to the Supreme Court through the plan to limit the number of appeals.

As our governments have chosen not to increase the human and material resources of the judicial institution to a satisfactory degree, these reforms will also have the effect of limiting recourse to state justice and taking dispute resolution out of the courthouse as much as possible. The promotion of online mediation and arbitration platforms for "small claims" is a blatant illustration of this.

So how can we correct the disadvantages of this dematerialization of procedures, of this distance between the litigant and the judge created by digital tools?

In our view, one of the solutions is to promote dialogue between the parties and their lawyers on the one hand, and the judges or arbitrators on the other. Artificial intelligence and new technologies should help the judiciary to prepare cases for trial. But they should not replace dialogue and hearings, where those involved in the case can talk to each other and explain themselves in a human way.

It's not just a question of the judiciary being artificially augmented by algorithms. It's also time to develop their interpersonal skills and master not only the law, but also dialogue and the tools of emotional intelligence.

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