COURTS & TECHNOLOGY

The Fairfax, Virginia, Circuit Court unveiled a new efiling system in November 2000, the Savannah, Georgia, courts have an online docket, and the New Mexico state courts are catching up to the New Mexico U.S. District and Bankruptcy Courts by borrowing their source code. In Aztec, New Mexico, Judge Bill Birdsall, of the Eleventh Judicial District, uses only his laptop on the bench in the criminal and juvenile court to review records submitted on the efiling system.

In Brooklyn, New York, a courtroom has opened that provides judges with unprecedented access to information about the defendants who appear before them. The new courtroom and computer system is a partnership with the U.S. Department of Justice, the City of New York, and the New York state courts, and cost roughly $6 million to build [Claire Barliant, E-Court Grows in Brooklyn, New York Law Journal, October 11, 2000]

In March 2000, in Cumberland County, North Carolina, the police began electronically transmitting from squad car laptops to the clerk’s office the 50,000 citations issued each year, eliminating all paperwork and data entry in the court. The e-Citation system cost $500,000 to create and install.

The most important part of the Internet for courts is the idea of a ubiquitous network. The concept of a complete Web of electronic communication is significant because instant data access by the various agencies in the criminal and civil processes, from arrest to conviction, or filing to appeal, will eventually make the administration of government radically cheaper. The Internet may or may not play a role in current court technology projects, though courts could spend all their time and money on the Internet with great results. But the connection of all lawyers to the court, and all the courts to each other, and all information to the public, is the mud that has stuck to the fence.

Three Types of Wired Courts

The universal network resonates with judges the way that drastically cutting costs does not, and that has shaped the three kinds of wired courts that have emerged. These are: first, database access; second, presentation of evidence, or model court rooms; and, last, efiling. Each of these is called a wired court, but they are very different creatures. The challenge for the future is to tie the three sorts of wired courts together.

Despite the compelling nature of the Internet as a delivery tool, few courts have made the move to take advantage of a paperless docket and file. Reasons vary for delay in the implementation of the electronic justice network.

According to Cambridge Massachusetts-based new economy consultant Barbara Walter, the infrastructure needed for a wired court is substantial. Sufficient band-width, robust servers and sophisticated Web applications are all needed to connect the desktop of the bench and clerk’s office to legacy data.

Integrated Database Courts

The connection to the Internet is just the beginning of modernizing the justice system. This point has been made by Richard Susskind in the United Kingdom, who argues courts first need to implement computerized case management systems before they can accept documents over the Internet (e.g., the courts need a way to keep track of incoming documents) [Richard Susskind, The Challenge of the Information Society: The Application of Modern Technologies in Civil Litigation and other Procedures (December 1999)] The database of the docket that Susskind describes is one of many sources of information that courts need, and future efforts should seek to combine these databases. [see, e.g., Resolving and Avoiding Disputes in the Information Age, A Lord Chancellor's Department Consultation Paper (September 1998), Chapter 5, Ensuring the infrastructure is in place]

In Walter’s view, a good wired court Web application would provide a secure handshake with each of the desired databases, and present the judge with an integrated screen. Instead, some database courts force the judge to search each one separately for criminal history or social service reports. The process of a court Web application talking to data in various formats is a substantial undertaking, far more complex than knitting together some hyperlinks. Funding for infrastructure is often hard to obtain, however. In North Carolina, the administrator for the courts, Tom Ross, estimated in July 2000 that “the court system still needs up to $80 million in technology funding over the next five years to bring the state court system up to the level where it should already be in today's computerized world.”

Several states have discussed Walter’s strategy for an integrated justice network, and there are projects underway to integrate some of the local and national databases. According the proponents of the database courts, with greater access to information, judges can make more informed decisions.

An idea discussed in Washington state’s Justice Information Network is to create a unique Web page for anyone with a criminal or civil docket entry. A judge could call up the page in a Web browser to see that in 1994 John Doe had a divorce, in 1995 a conviction for DUI, three arrests in 1996, and in 1999 had a name change. Now, when John Doe comes before a judge on the next case, the judge can take into account the complete background. To some, the hypothetical of Mr. Doe’s downward spiral paints a dismal human picture, but even more bleak is the court’s desire to reduce this to data, which misses the target of justice by making commodities of individuals. A more heartening result from a database court can occur when sentencing a juvenile who, the data may show a judge, is the proverbial good kid who ran into a spot of trouble and is better served by a rehabilitative sentence instead of a punitive one.

A key challenge preventing implementation of the proposal for integrating all electronic government records is incompatible format of databases. In the past, the solution has turned on data architecture, or setting standards for information systems. Experience has shown, however, that courts’ attempts to coordinate information systems can fail to fulfill expectations. It is difficult to scrap legacy systems and to update data to common platforms is costly.

The emergence of XML (extensible markup language) offers a less expensive approach. The power of XML is that by defining a common, middle language of data mark up, systems can swap data. [Robert Plotkin, Electronic Court Filing: Past, Present, and Future Boston Bar Journal (May/June 2000)]

An advantage of the wired database court is that it makes the most out of existing resources. There is no need to buy cameras or expensive presentation machinery, as with the second sort of courthouse, the so-called courtroom of the future.

Courtroom of the Future

The model courtrooms, such as the one at William and Mary Law School, are popular with both judges and lawyers. Singapore and the United Kingdom have built high technology courtrooms. Legislatures are often eager to fund the retrofitting, usually after some promises of more efficient presentation of evidence in lengthy commercial litigation, shortening the time of trial. In West Virginia, the courts have the capability of video conferencing with the jail so that prisoners do not need to travel to the courthouse for arraignment.

With systems from companies including Doar Communications, model courtrooms enable trial lawyers present of multimedia, show juries accident reconstruction schematics or play video depositions of expert witnesses. Cameras can record the proceedings from inobstrusive vantage points. Other elements in the model courtroom are live transcript access and Internet access at the attorney tables. Whenever one hears a judge talk of a wired court, it is likely a reference to what might be dubbed the “PowerPoint court.”

Efiling Courts

Sending electronic documents to a court, storing the file and providing public access is possible for all courts with current technology. Only a few courts have taken advantage of this potential, even with models, such as WestFile, that are free to courts and pass on the costs to attorneys.

On the bright side, efiling has taken some recent steps forward into new courts, such as the Fairfax County, Virginia court. The courts that are engaged in efiling already include some of the largest and most busy courts, so it is misleading to cite that efiling or paperless case files and electronic dockets exist in only 40 or so courts out of 17,000 in the United States.

Efiling is now poised to expand into appellate courts, with the release from the U.S. Court Administrator’s Office of software for the federal circuit courts. The North Carolina appellate courts built their own efiling system that allow the public to view the full text of pleadings in Adobe Acrobat PDF format. Work in the LegalXML group continues, with a growing membership and a meting at the Massachusetts Institute of Technology November 16-18, 2000, planned to consolidate the organization. The standards published by LegalXML will allow vendors to offer products that make database sharing more readily available to courts, justice agencies and lawyers.

Conclusion

In sum, a surprise of the Internet is that having all the courts, lawyers and law enforcement online has altered neither the business of practicing law nor the process of dispensing justice. Put another way, efiling did not catch on the way that MP3 format music did with Napster, or AOL instant messaging. There was no gold rush or wholesale conversion of business to the Internet, as might have happened had cost cutting been the driving issue. In 1995, it appeared the Internet could revolutionize the justice system. Instead, the rate of change is more evolutionary than sudden, and the measured pace is likely to continue for the near future. Pundits argue that large investments in infrastructure projects, following on the visions of Barbara Walter and Richard Susskind, are necessary to give judges advanced Web applications that are easy to use and understand.

What did catch on? Documents are attached to email between law offices, emails are sent internally at firms and courts, and there is some minimal use of shared drives, Intranets and so-called group ware. Multimedia and video presentation of evidence is pursued passionately. But lawyers do not send electronic documents to the court, that is, we don’t “just do it” because the Internet allows us to for the first time. In this vein, with a few notable exceptions, courts neither collaborate with each other at virtual offices, nor share documents online with the public.

If the three different types of wired courts - database access, presentation ability, and efiling - can begin to merge, the Internet will allow courts do conduct sophisticated calendaring with jails or prosecutors, and to carve out particularly burdensome and unimportant administrative process to do completely free.

Links

Michael Geist, The Courtroom of the Future - Today (October 1997), article discussing the William and Mary Law School project from a Professor of Law at the University of Ontario, Canada,

Laurie West-Knights, The Courtroom of the Present: Courtroom 21 Project, Williamsburg Virginia (October 1998), article discussing the William and Mary Law School project and its application to the United Kingdom.

Cobb County, Georgia, Courtroom of the Future.

Courtroom of the Future, Division 12 Courtroom, Arapahoe County Justice Center, Eighteenth Judicial District, Englewood, Colorado.

Australia’s Courtroom of the Future, a Wang press release (December 13, 1995)

United Kingdom Courtroom of the Future, a report from the Court Service

Richard Chapman, The Courtroom of the Future, article discussing the United Kingdom project, Society for Computers and the Law Electronic Magazine (August/September 98, Volume 9 Issue 3)

United Kingdom Courtroom of the Future, article

Doar Communications, a courtroom technology vendor

John Selbak, Digital Litigation: The Prejudicial Effects of Computer-Generated Animation in the Courtroom, 9 Berkeley Technology Law Journal 2 (Fall 1994)

Bradley J. Hillis
November 6, 2000

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Discussion

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