Predictive justice aims to quantify, from decisions already decisions rendered by courts or the result of legal action, the chances of success or the expectation of gain in the context of a dispute. The emergence of predictive justice questions legal professionals as to its impact on the very idea of justice.
The Fine Solutions?
In principle, it is in fact the role of the national city auto accident attorney now or the scientific council to assess the chances of success of a dispute.
- This massive opening up of case law and the crossing made possible by big data of legal and “contextual” data (profiles of the applicant and of the judge) allows the creation of predictive models able to establish refined probabilities of success of a dispute. , to estimate the compensation granted, even to point out the arguments accepted by the judges.
- Until now, lawyers have favored areas giving rise to mass litigation, in particular family law (pensions), social law (severance pay) and consumer law, the number of decisions rendered and the reliability of the results being closely correlated. Predictive justice now extends to all spheres of law.
- However, this new tool arouses both interest and mistrust as it is likely to improve the public service of justice but also raises the risk of misappropriation of the office of the judge.
The Chancellery and the Senate have, in the context of the adoption of the law for a digital republic, underlined the advantages of predictive justice. Massive access to judicial production makes it possible to know, for each question of law, the response provided by all the courts in the jurisdiction concerned, thus eventually erasing disparities and promoting the development of a broad collegiality. A tool for harmonizing case law, open data is also a means of anticipation and legal certainty.
This better visibility goes in the direction of an increasingly important recourse by lawyers to alternative dispute resolution methods, which is in line with the various procedural reforms taken in recent years.
But predictive justice also gives rise to fears of a deviation from the office of the judge who, faced with statistical elements on the amounts of compensation granted or the fate of such an argument, could be tempted to provide the same answer as of other jurisdictions in the context of nonetheless different disputes that deserve attention, analysis and a specific solution.
The Right Solutions
Predictive justice is therefore not without knowing certain shortcomings such as forum shopping or the risk of “performativity”: the standard no longer governs, it achieves what it states. The “baremisation” of compensation as well as the mass inventory of personal data that the performance of predictive justice algorithms necessarily implies are also risks that do not plead in favor of this new tool .
It is therefore in a context of mistrust as to the benefits of this tool that, in the midst of the “COVID-19” crisis, the decree was discreetly taken, the first experience of predictive justice in matters of bodily injury .
Article 1 of decree n ° 2020-356 of March 27, 2020 gives the right to the Ministry of Justice to create an algorithm called “DataJust” with the aim of centralizing the decisions rendered in matters of bodily injury by the courts of appeal and the French administrative courts of appeal between 2017 and 2019.