Digitalisation of the civil process in Italy and the impact on parties, lawyers and judges

Paolo Grandi
RPLT, Milan
paolo.grandi@rplt.it

Digitalisation of the Italian civil trial system has brought significant improvement in terms of speed of process and efficiency. There is a new generation of ‘born digital’ lawyers and judges. However, questions about the client-lawyer relationship and the risks of fraud in the process must be carefully considered.

Comprehensive use of digitised documents in Italian civil proceedings

The telematic court trial introduced in Italy in 2015 has entailed a complete digitisation of the briefs and documents produced by each of the parties in Italian civil courts. For almost a decade, every document in Italian courts has had to be filed in digital form, that is, a non-editable PDF format. The filing of briefs and documents is done through a web platform managed by the court system. If the quantity of documents exceeds the uploading capacity of the system, a request must be made to the court to deposit the documents on a USB flash drive or CD-ROM. 

This revolution has radically changed the work habits of all participants involved in a civil trial: parties, lawyers and judges. In a civil trial, briefs of many pages and hundreds of documents are filed, which are not always easy to review in an electronic format. In the initial years following this change, paper documents provided by the client often had to be scanned to be filed and Italian judges required lawyers to also file a courtesy hard copy of briefs and sometimes documents. Double work for law firm staff!

Nowadays, all players in the process have adapted to the digital age, and management by telematic process is much smoother.

Digitisation of case documents has made the exchange of information between client and lawyer faster. Virtual data rooms make it possible to share hundreds of documents in real-time. However, examining and studying a voluminous document is not always easy through a computer screen. To make it easier for judges to read the briefs and documents, it is required that the briefs contain links to the documents to which they refer so the judge can navigate between the brief and the cited documents.

Rise of videoconference hearings and client meetings

Covid-19 also brought to Italy another obvious impetus toward digitalisation: videoconference hearings using Microsoft Teams. Even today, hearings can be scheduled by videoconference, rather than physical presence at the court, at the judge's discretion. Videoconference hearings frequently suffer from digital divide problems in the Italian territory, with connection difficulties and some embarrassing issues during hearings.

Meetings with clients also often take place via videoconference rather than in person. There are advantages, such as the ability to view and interact using screen sharing, and a videoconference galateo (etiquette) is slowly developing within law firms and corporations. However, it is possible for firms to assist a new client without ever having seen them in person. We should ask ourselves whether this is ethically correct.

Addressing challenges and risks associated with the digitalisation of the civil process

The critical aspects of this strong digitalisation of the Italian justice system are still partly unexplored.

For instance, the falsification or manipulation of digital documents, photographs and even videos, has become increasingly easy and common, especially with the tools offered by artificial intelligence. Moreover, the use of electronic forensic tools, in searching and cataloguing information in an electronic document database, carries the risk of misinterpretation due to programming bias or a failure to detect relevant information.

Searching for case law precedents is apparently much easier and faster as we no longer spend day and night in the library looking up judgments useful to our case. It's all on our smartphone. Even then, the speed provided by reading an abstract of a judgment carries the risk of not considering the entire judgment and its real content.

These risks can only be mitigated by massive investments in technology by all stakeholders in the justice system – primarily the courts, law firms and businesses – to equip themselves with all the technologies needed to counter attempts at document fraud or default in trials.

But this is not enough. New generations of lawyers will have to dramatically acquire the awareness that we will increasingly have to doubt everything and seek in every way to confirm the authenticity of what comes from our clients, our counterparts and even the courts. We all remember the case of the American lawyer Steven Schwartz and the judgments invented by ChatGPT. Specific technological training will be needed, right from university or, better yet, starting in primary school. Will the lawyer have to become like Rick Deckard in Blade Runner, searching for perfect and fascinating technological fakes?

Legal research and even the drafting of briefs are increasingly driven by the algorithms of the powerful legal research tools at our disposal. These algorithms, however, are based on experiences and catalogues that tend to shape each other and make decisions for us in the selection of case law precedents. It is crucial for young lawyers to be aware of this risk and learn to maintain a critical and creative spirit. One of the incredibly positive aspects of our work is that reality often surpasses fantasy – we are faced with situations that no algorithm has considered before. Situations that cannot be solved simply by applying standard rules but that require a holistic and human view.

Law firms are already gearing up, incorporating the function of Chief Information Security and Compliance Officer into their organisation. They will have to keep up with rapidly changing technological challenges but also with cybersecurity and privacy regulations which – at least in Europe – are constantly evolving. A challenge at once fascinating and frightening.