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The Digital Decision - Paper

The Digital Decision - Paper

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12/05/2013

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The Digital Decision
 – 
Articulating Reasons for a Decision in the DigitalParadigm
A Paper Presented to the Courts Technology Conference 2011Long Beach CaliforniabyJudge David HarveyA Judge of the District Court of New Zealand____________________________________________________________________This paper and the presentation which accompanies it are divided into four parts. Thefirst part examines the purpose and rationale for delivering a judicial decision indigital format with accompanying multimedia embedded into it. The second partexamines some of the technical issues involved in creating a the digital decision. Thethird part considers some of the legal implications that arise from a multimedia digitaldecision. The approach that I have adopted is generalist in nature and considersimplications that may be shared by common law countries. The final part deals withsome of the technical implications of the digital decision and the preservation of multimedia decisions in a dynamic environment.
I should add that this paper has been a “work in progress” for over a year. It is
conceded that this cannot be the final word on the subject and it is hoped it willstimulate a continuing and developing conversation on the general topic and some of the issues raised in this paper
1.
 
The Purpose of and Rationale for a Digital Decisiona.
 
Reasons for Decisions in Common Law Jurisdictions.
Modern judicial theory requires that an adjudicator give reasons for why it is that aparticular decision has been reached.
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There are three main reasons why theprovision of reasons by Judges is necessary:
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Lewis v Wilson & Horton Ltd 
[2000] 3 NZLR 546.Historically this has not always been the case.
"
And in troth if Judges should set down the reasons and causes of their Judgments withinevery record, that immense labor should withdraw them from the very necessary services of the commonweath, and their Records should grow to be
elephantini libri 
of infinite lengthand in time opinion lose somewhat of their present authority and reverence....But mine
 
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 a) Openness in the administration of justice;b) Failure to do so means that the lawfulness of what is done cannot beassessed by a Court exercising supervisory jurisdiction;c) They provide a discipline for the Judge which is the best protectionagainst wrong or arbitrary decisions and the inconsistent delivery of  justice.
2
 Judicial analysis requires the isolation of a principle of law and its applicability to acertain set of found facts. Any person (including an appeal court) reading a judgmentshould be able to clearly ascertain WHY it was that a Judge came to a particulardecision or WHY a judge made a finding of fact.Thus it is fundamental to the ascertainment of a binding rule of a judicial decision thatit should be derived from:1.
 
The reasons of the Judge(s) arriving at the order disposing of theproceedings;2.
 
Upon a matter in issue in the proceedings;3.
 
Upon which a decision is necessary to arrive at that order.
3
 The form of expression of reasons is in a written representation, sometimes articulatedfrom the Bench and collected in reports for future reference and for any precedentialvalue that may attach to the decision. The reasons for decisions and the factual matrixunderlying the issue are expressed in print and in text. The usual medium is paperbased although Court decisions are now available on line. On-line decisions mirrorthe text-based paper-based context of Court decisions.
advice is that whensoever a man is forced to yeeld a reason for his opinion or judgment, thatthen he set downe all authorities, presidents, reasons, arguments and inferenceswhatsoever, that may be probably applied to the case in question"Sir Edward Coke
Le tierce part des reportes del Edward Coke
Adam Islip, London 1602
“I cannot but with admiration reverence the grave judgment of the sages of the common law
of England who have been abstinent in publishing their meditations and arguments in their
professions….it being
assuredly no matter of necessity to publish the reasons or the
 judgment of the law.”
William Hudson
 A Treatise of the Court of Star Chamber 
Taken from
Collecteana Juridica
 William Dugdale (ed) E & R Brooke London 1742
2
 
Lewis v Wilson & Horton Ltd 
[2003] NZLR 546.
3
 
D’Orta
-ekenaike v Victoria Legal Aid 
[2005] HCA 12 paragraph 244 Kirby J
 
3
 
b) Recording Decisions in the Print Paradigm
The printed law reports are still seen as a primary authority although, as has beenobserved, case law is also accessible through various databases which may beaccessed through the Internet. The volume of cases, and therefore the identification of a wider variety of fact scenarios, has increased dramatically.Yet the basic reasoning process remains. Irrespective of the means of access to courtdecisions, the value in such decisions is in the process by which the Court foundcertain facts and applied an identified legal principle to them.We take printed case law for granted. It was not always so. Edmund Plowden wasmotivated more by reputation than altruism when he printed his
Commentaries
in1571. Edward Coke was initially hesitant about printing his Reports in 1600 but hisenthusiasm increased over the years. By the time of the decision in
 Entick vCarrington,
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printed law was a given. The new technology had become accepted andcase law in print was the norm.
5
Thus the expression of cases in text, while utilizingthe properties of print such as standardization, dissemination and volume, was limitedby the other properties that were inherent in the print based technology
 – 
essentially atwo dimensional text based system utilizing a particular medium
 – 
paper. It is for thisreason that the judicial reasoning process has been a text based representation of whatmight otherwise have been articulated from the Bench. The reasoning process isconstricted by the ability to use language to articulate the outcome.
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 In the same way that print enabled the widespread dissemination of large numbers of volumes of standard text law reports
 – 
all of which had been impossible in themanuscript paradigm
 – 
the digital paradigm allows for similar text based informationwith greater ease of access and in larger quantities and also has inherent within it
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(1765) 19 Howell's State Trials 1030
per Lord Camden “
If it is law, it will be found in our books. If it is
not to be found there, it is not law.”
 
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It was not until the 1860’s that an official publication of law reports in England was approved.
 
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It could be said that print technology has dictated the way in which decisions are rendered andpresented
 –
 
an example of McLuhan’s observation “We shape ou
r tools and thereafter our tools
shape us” Marshall McLuhan
Understanding Media
:
The Extensions of Man
(McGraw Hill, New York1964)

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