Our justice system is facing major challenges. What does it take to drive forward the transformation of our justice system?
The media repeatedly report on the shortage of skilled workers in public administration. The prob-lem is that the shortage of skilled workers will continue to increase from year to year, so that there is a justified fear that the state will no longer be able to fulfil its core tasks in the areas of public welfare and provision of services in the required quality. The same applies to our judicial system, which, at least since the "diesel scandals" in the automotive industry, has been experiencing a mas-sive overload in terms of publicity. What are the causes here? Which problems affect our justice sys-tem and public administration equally? And probably the most important question: What solutions are there and how can we implement them as quickly as possible?
At this point, let me say in advance: the time has come when courageous visionaries are needed. In addition, we need people who can get down to work and turn their ideas into orderly processes.
Digitalisation is a process - not a state
But first let's take a look at what prompted me to write this article. We are currently at a point where digitalisation can hardly progress in a horizontal direction. This means that almost every area of life is already digitised in some form. The new fridge I bought in the summer can now communi-cate with the supermarket around the corner, telling it what food has run out.
But the process of digitalisation is far from complete. Because it is not a binary process where you can indicate with a zero or a one whether a certain area is "digitised" or "not digitised". Digitisation is a term that describes a process rather than a state. In recent years, digitisation has increasingly developed into a vertical process. In other words, it is a matter of areas that are considered digital-ised when viewed superficially becoming more and more pervasive and the depth of this process be-ing pushed further.
This also applies to the areas of justice and public administration. At a superficial glance, one can certainly speak of a certain digitalisation here. However, an online portal made available to citi-zens, with which applications can be made, appointments can be made or dunning procedures can be initiated, can no longer be considered as "we are digitalised" when viewed seriously. This is espe-cially true when, in times of artificial intelligence, the in-house systems in the administration are unable to process the data entered online and the employees have to print out and file the data they receive.
Public administration and the free economy - a two-speed development
The view of digitalisation in what is now called the legal tech environment often only sees the gen-eral developments and the accompanying improvements. It is often overlooked that these develop-ments are not progressing at the same pace in all areas. The speed at which the free economy and the German judiciary or public administration are developing differs fundamentally. Which brings us to the crux of the matter. While the free economy is not only able to develop completely freely from external influences (legal aspects disregarded here for a moment) and, moreover, usually also has financial resources that can be used freely, the German judiciary and public administration are bound to completely different framework conditions and also financial resources.
The uneven playing field of mass proceedings - and the impact on the rule of law
A concise example that makes this technological lead and the associated problems particularly clear is the lawsuits surrounding the "diesel scandals" in the car industry. These are a type of proceedings that are generally referred to as mass proceedings. This refers to legal disputes involving a large number of similar cases, i.e. a large number of cases with essentially the same facts and legal is-sues. In connection with such proceedings, the unequal balance of power between the judiciary and the parties to the proceedings becomes particularly clear.
In the diesel scandal, German automobile companies with their commissioned law firms, the injured consumers (far more than 300,000) with their law firms financed by legal expenses insurers and the German judiciary are facing each other. In this triangle, not only does enormous financial power and massive manpower on the plaintiff's and defendant's side meet a limited human resource of the judiciary, but there are also clear differences on the technological level, which in this case are probably even more serious than those mentioned above.
Both the plaintiff and the defendant sides relied on software-based solutions in the proceedings in order to make the administration and the preparation of the pleadings as efficient as possible. This meant that the statements of claim and the statements of defence took only a few minutes per case. This power came up against a judicial system that was not designed for mass proceedings due to a lack of digitalisation. The result was not only massive congestion in the courts and long waiting times for a judgement, but also considerable effects on the efficiency of the judicial system as a whole.
An efficient legal system is of fundamental importance for an intact constitutional state. This is be-cause long processing times on the part of the judiciary entail a multitude of factors that have an additional negative impact on the positive perception of the rule of law. For example, a long dura-tion of proceedings usually also leads to a certain degree of legal uncertainty, as those affected have to live in uncertainty about the outcome of their proceedings for a long time. The longer dura-tion of proceedings is often accompanied by higher costs for those affected. Long waiting times, the associated legal uncertainty and incalculable costs can thus promote a loss of confidence in the le-gal system. This must be avoided at all costs.
Manual processes bring public administration to its knees
Analogous to the mass proceedings in the judiciary, there are also events in public administration that lead to the mass processing of applications and the associated processing cycles. This became particularly clear with the introduction of the Housing Benefit Plus Act.
In the course of the introduction of the new regulation, the number of eligible housing benefit re-cipients more than tripled at the beginning of the year from 600,000 to about two million house-holds. It is an enormous challenge for cities and municipalities to cope with this application volume. Like many other administrative processes, the procedure for applying for housing allowance consists of a series of interdependent process steps that must be completed before the housing allowance can be approved or rejected. In addition to checking the completeness of the submitted documents
and the corresponding communication with the applicants, this also includes other processes such as the calculation of the housing benefit amount or the creation of notification templates. Without digital support, this process is not only very time-consuming, but also extremely cost-intensive.
Simple solutions, such as individually configurable and user-friendly online platforms like the ones we develop and use at BDO, enable the staff in the housing benefit offices to digitally process hous-ing benefit applications submitted digitally (but also in paper form). The applications can be auto-matically transferred to the existing system for further processing and subjected to an initial com-pleteness and plausibility check. This simplifies the process for both the applicants and the housing allowance offices and also reduces the amount of paperwork.
Federalism - a particular problem with digitisation
Data protection, financial burdens or ensuring access for citizens - the problems with the digitisa-tion of public administration are manifold. In Germany, federalism poses a particular challenge here. The German federal system divides responsibilities and powers between the federal govern-ment and the 16 federal states. This can lead to a number of problems in the course of digitising public administration. In principle, each federal state has the autonomy to pursue its own ap-proaches to digitisation and the use of technological solutions. As a result, this can lead to a frag-mentation of digital services and administrative processes, which ultimately makes interoperability more difficult and promotes inefficiencies. Coordination between the Länder and the federal gov-ernment is also difficult with regard to the implementation of joint digital projects or the definition of uniform standards. Moreover, the need to reconcile different interests and priorities is likely to lead to further delays and inefficiencies in implementation. In addition, the distribution of financial resources across the Länder will pose a further challenge. For citizens, federalism can mean that they experience different digital access and service qualities depending on the digitisation strategy of the respective federal state.
Despite these challenges, federalism in Germany can also offer advantages, as it gives the Länder a certain flexibility to adapt their own digital initiatives and strategies to their specific needs and cir-cumstances. However, coordination between the Länder and the state is crucial to effectively drive digitisation forward and ensure that citizens in all regions can equally reap the benefits. This re-quires close cooperation and the exchange of best practices.
Will to shape the future as a basic prerequisite for successful transformation
In view of the status quo described above and the underlying problems, one thing must not be over-looked: Despite the great challenges, there is also an enormous opportunity not only to improve ef-ficiency and service provision, but also to make a significant contribution to the preservation and consolidation of our constitutional state.
But what does it take to transform the existing processes into a successful transformation process? In my view, it is one thing above all: an unconditional will to shape things. Without visionaries who can define a clear goal and communicate it in a comprehensible way, and without pioneers who are courageous in their approach and willing to tear down one or the other wall and accept setbacks, we will not succeed in this great task.
All those involved in this process must be clear about one thing: they do not have to start from scratch. The field of (legal) tech providers has developed rapidly in recent years. For almost every current digitalisation problem, there is already a solution in the free economy that can be learned from or docked onto.
However, the aforementioned will to create does not only apply at the implementation level. For a successful vision of the future of a digitalised judiciary and administration that seamlessly adapts to the technological level of the free economy, a corresponding endowment with financial resources is
also an absolute prerequisite. One thing is clear: the free economy is technologically far ahead. To catch up, it is not enough to achieve the same speed of development. To catch up, the public sector must become a digital pioneer. Only in this way can the judiciary and administration fulfil their core tasks and become a supporting pillar of our constitutional state.
Legal Technology
Legal tech (short for "legal technology") refers to the use of software solutions to improve the delivery of legal services, make legal processes more efficient and facilitate access to justice. These technologies can cover various aspects of the legal industry, including the automation of individual work steps or entire processes, the analysis and preparation of legal documents, the management of legal information and the provision of online advice.