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The Automated Law Firm Aug. 21, 2000 (SmartPros) The following is an excerpt on court technology from Chapter 11 of The Automated Law Firm (Aspen Law & Business 2000) a comprehensive look at legal technology written by Tom O'Connor and now in its 3rd Edition. §11.08 COURTROOM TECHNOLOGY
[A] Inside the Courtroom
As mentioned in §10.02[F], courts around the country are becoming increasingly automated. The most prominent uses of technology inside the courtroom include the following:
[1] Presentations
The use of modern presentation techniques allows the development of new kinds of demonstrative evidence and can enhance the presentation of traditional evidence. For example, documents used as exhibits can be scanned and presented on a large screen where they can be annotated and emphasized in various ways.
[2] Computer Access
Scanned exhibits and other trial documents can be immediately accessed via computer, saving time and protecting against the possibility of lost or mislaid documents. The entire trial record can be placed on CD-ROM, thus reducing the costs associated with appellate review and enabling an appellate court to review voluminous records more efficiently.
[3] Real Time Transcription Real time transcription of depositions and court testimony can enable more effective examination of witnesses and provide more through analysis of proceedings by alerting trial participants to nuances of testimony as it occurs. Cross-examination is enhanced when direct testimony is immediately available on screen.
[4] Videography
Videography of proceedings and the use of video in various kinds of demonstrative evidence are powerful enhancements of the traditional trial process. Videography may support the development of more efficient methods of retrial following appeal where witnesses are no longer available. Videotaped depositions are widely viewed as an efficient and fair way of presenting deposition testimony in various circumstances.
[5] Virtual Courtroom
The "virtual'' courtroom is a courtroom where the participants are brought together with technology. Whether a jury trial can ever occur in a virtual courtroom is questionable, but hearing of motions and various kinds of pretrial proceedings already occur in "virtual'' space. Filing of documents over telephone wires is now commonplace. As the technology advances, more extensive use of teleconferencing will occur.
There are many projects in courtrooms around the country which are employing and studying the use of this type of technology. In the forefront is the University of Arizona Courtroom of the Future Project. First established in the spring of 1994, the Courtroom Project provides the foundation at the College of Law for a full-scale training and demonstration facility for law office and courtroom technology. (See www.wintonwoods.com )
In addition to the training of law students, the Courtroom facility provides various kinds of empirical inquiry into the use of technology in the courtroom. The facility supports the study of important issues such as how jurors respond to various kinds of technology and how technology can increase the efficiency of the trial process. The project also addresses design considerations as equipment placement and access by those with disabilities.
Perhaps the most important function of the facility is the demonstration of technology to practicing professionals both as information and as training. Rapid advances in technology have created a need for continuing professional training in various uses of technology both at the beginner and the advanced level. To that end, the Courtroom of the Future Projects stresses the following as goals:
[a] Usable Technology
The Project seeks to find technology that is available in the current market at reasonable prices and can be of immediate use to judges, lawyers and court administrators. To that end, the Project seeks to develop new and innovative ways of using current technology in real world situations rather than devote resources to the development of advanced technology.
[b] Demonstration Capability
The Project always stresses the ability to demonstrate usable technology to those who are considering its use in their offices and courtrooms.
[c] Training of Lawyers
One of the most important functions of the Project is the re-training of current professionals in the uses of technology. Particular attention is paid to the needs of those who through fear or inertia have withdrawn from learning, or who never were engaged, about the benefits of technology in practice.
[d] Student Training
Finally, the Project provides every law student at the school with the opportunity to develop their technological skills in both the courtroom and law office context.
[B] Access to Courts
One of the hottest topics in legal automation circles these days is electronic access to courts. Most of these discussions concentrate either on the electronic filing of documents or some form of comprehensive case management system, often in combination with each other. Electronic access to court records by the public is a consideration that is gaining more attention due to the growth of public access to and use of the Internet.
As a case in point, in July 1998 J. Michael Greenwood of the Administrative Office of the U.S. Courts made a presentation at the National Association of Court Managers conference in San Antonio. Called "A Report on the U.S. Federal Courts Electronic Filing Project,'' it listed the following system components for the courts electronic access project:
[1] E-Filing
Despite several years of discussion, preparation and promises, e-filing is still in the developmental stage. In mid-year of 2000, less than 1% of all the courts in the country are actually using some form of e-filing with the largest third party provider, JusticeLink, having filed and served a total of only 150 million pages as of the first of the year. That situation should, however, change dramatically by Q1 of 20001. Several major projects will be well underway by that time including the JusticeLink implementation for the state of Colorado and the WestFile/JusticeLink project in Orange County California. In addition, numerous other state projects are in development including pilot projects in New Jersey, New York and several jurisdictions in California. Meanwhile, the Federal courts, under the leadership of Michael Greenwood at the Administrative Office of Courts, are continuing with an ambitious program to have their entire system using e-filing by 2003.
Furthering all of these projects has been the efforts of the Joint Technology Committee of the National Association of Court Managers (NACM) and the Committee of State Court Administrators (COSCA). Working in conjunction with the Court Filing Workgroup of the Legal XML group (a non-profit organization comprised of volunteer members from private industry, other non-profit organizations, government, and academia whose mission is to develop open, non-proprietary technical standards for the electronic filing of legal documents) the JTC released a proposed e-filing standard for public comment on March 22nd, 2000. For more information on the joint development effort, see www.legalxml.org/CourtFiling/ or the JTC Court XML site at www.courtxml.org.
Also in during 2000, a number of participants from judicial communities around the country attended the 2nd Dixon Conference, presented by ICAIR (International Center for Automated Information Research), the University of Florida Fredric G. Levin College of Law, and Glasser Legal Works. The conference focused on electronic filing and electronic commerce and provided an opportunity for attendees, exhibitors, and faculty to discuss e-filing issues, technologies, and policies. A transcript of that session is available http://www.law.ufl.edu/icair/dixon/ and a white paper presented by Jim McMillan of the National Center for State Courts can be found in the Appendix
[2] Records Access
Of the hundreds of electronic public access projects under development nationwide, most consist of a Web page with motion (and less often trial) calendars and general information about the court. Very rarely is there complete access to the actual docket information. Numerous county projects, such as those in San Diego California or Maricopa, Arizona, are underway, and some states, such as Virginia, New Jersey and Maryland, have implemented state-wide systems.
The PACER system, which has been in place for over 10 years, provides docket access to most Federal courts on an individual basis. Comprehensive access to multiple systems is provided only by third-party vendors such as CourtLink. (www.courtlink.com ), Case Stream, which is now owned by CourtLink (www.casestream.com) or Wade Systems (www.wadesystems.com ).
[3] Cost Analysis
Unfortunately, many courts find that the development of any system is cost-prohibitive. On the one hand, they receive the smallest portion of the tax revenue stream, while on the other hand, there is often political pressure to provide free public access. As former Judge Arthur M. Monty Ahalt, recently retired from the Circuit Court of Prince George's County Maryland and now employed by JusticeLink) has stated in his Web site, the Virtual Courthouse (www.mdlaw.net/ahalt ):
As a result, many courts are looking for both justification and guidance in how to allow the public to remotely access their electronic court records. Adding to the complexity of these inquiries is the feeling of many jurisdictions that security and privacy concerns mandate that any electronic access system should be restricted only to the civil docket. In implementing electronic access systems, courts face the following major issues:
[a] Benefits
The following are benefits to the courts of providing remote public access. The impact of each is significantly reduced by limiting public access to civil cases only.
Increased operating efficiency: A tremendous amount of clerk time is freed up by reducing the number of people and organizations that request court records either at the counter or by phone. Allowing the public to view the records electronically from their own office also reduces traffic congestion and pollution to the environment, parking problems, and wear and tear on court facilities.
Better informed public: Giving the participants in the justice process easy access to information such as case status, motions filed, and court dates helps the proceedings move more smoothly.
Enhanced customer service: The court becomes accessible to a wider geographic community at hours that far exceed the hours of normal court operations. Access is typically available 24 hours a day, 7 days a week, with minimal downtime for system maintenance at the court.
Better case information sharing among courts: When it comes to bail setting or sentencing, a judge in California has a limited capability for determining a defendant's case history or pattern of behavior in any court outside his/her own. Remote access is one avenue to obtain this type of information.
Enhanced timeliness of information: Better and more information: Without remote public access, it can be too costly or too time consuming to even attempt to acquire court case information. This is especially true for local courts with heavy caseloads. The court user must simply hope that they are not missing something important such as information that may cause them to lose a case, hire someone inappropriate for a position, be subjected to fraud, or miss a clue in solving a crime.
Significantly lower cost to access court records
[b] Cost Some of the most common cost components include:
Again, as Judge Ahalt points out:
[c] Fees
Some courts, notably Maricopa County Arizona, take the position that all Internet access to court records should be free, a policy also endorsed by the ABA. This author believes that courts should not only be able to recover their costs but also generate some revenue, a position shared by vendors such as CaseStream and SCT and even by the federal courts themselves, which, of course, also charge a per minute fee to access the PACER system. Some states are following suit, as is the case with the proposed wording for electronic access systems in California, which states in part: "A trial court conducting a pilot project may impose fees sufficient to recover the costs of providing access. A statement of the costs that comprise any fees must be made available to the public.''
Until a court does not have programs, services or infrastructure that are in need of funding, it should not be considered to be "making a profit''. If the term ""revenue'' has bad connotations, it should be called a tax. With all of the additional fees that get added to most court imposed fines, it seems odd that there should be such an issue about adding a fee to providing remote public access. If all current fee-based methods for obtaining court records remain in place and, in fact, are enhanced, then there is a net gain in overall accessibility.
The fee that users of services such as PACER or CourtLink pay is for value-added, remote access to free public court records. The public user always has the option of going to the court and viewing records for free at the counter or at a public access terminal.
[d] Civil vs. Criminal
Because of the ongoing debate in many courts surrounding access to criminal case information, limiting the scope of such access to only civil cases in trial courts may be necessary at the outset. Many of the benefits to the public of having remote access, however, are reduced by limiting access to civil cases only. Delaying such implementation while waiting to work through the issues about access to criminal case information is probably not the best answer. Some courts are waiting for official guidance from their state before taking any action, but the best course seems to be that development continues on a parallel path for both case types until such issues are resolved.
[e] Conclusion
Slightly more than 50% of the nation's population is currently served by a court with some form of electronic public access. This is twice the size of the population so served only a year ago, and CourtLink expects the figure to be more than 75% of the population by the end of 2000. The vast majority of these new systems will be Web-based, which will only serve to increase pressure on the courts to provide electronic access. For a comprehensive review of how courts are meeting this challenge, see the White Paper on Electronic Public Access to Court Records published in the fall of 1999 by the Legal Technology Institute of the University of Florida Levin College of Law. (www.law.ufl.edu ).
§11.09 FREQUENTLY ASKED QUESTIONS Q1: What is XML? A: Xtensible Markup Language is a technical standard developed by the World Wide Web Consortium (www.w3.org). XML is used to create "document formats" using custom "tags" and "stylesheets." XML tags look similar to HTML (Hypertext Markup Language) tags but XML document formats will replace HTML as the most favorite web technology because HTML is a "dumb" document format.
Although HTML has a predefined set of tags, they do not have a meaningful relationship to the content within them and deals primarily with the appearance of the document. XML deals with the content or information of the document. Additionally, XML allows developers to create their own customized tags. The Legal XML group seeks to standardize one or more sets of legal tags (i.e., names for the underlying data), but does not seek to standardize stylesheets (i.e., the appearance of the data).
Legal XML has it's origins in a virtual electronic court filing seminar hosted by Counsel Connect in February of 1998 when the idea was suggested that XML be used as a basis for a standard legal document format for court filings. Eleven participants joined together to form the Legal XML Workgroup which was originally hosted by The Utah Electronic Law Partnership ('UELP'), headed by Brent Isrealsen. The Georgia State University's Electronic Court Filing Project, led by Todd Vincent, was an original member of the UELP Legal XML Workgroup and in late 1998, Gabe Wachob at FindLaw (www.findlaw.com ) and Todd Vincent partnered a new effort. Georgia State created and hosted a "developers" mailing list for people who were interested in developing Legal XML DTDs and related standards. A short time later, FindLaw created and hosted a "general" discussion mailing list for people who were interested in standards, but who were not interested in reading the technical details.
Today the group has grown to over 300 members which holds regular meetings and is attempting to organize into a formal not for profit corporation. The Court Filing workgroup has partnered with the Joint Technology Committee of NACM/COSCA to release a proposed e-filing standard for public comment and other workgroups are hard at working employing XML standards into useful tools for attorneys and courts. For more information, see www.legalxml.org.
Q2: Don't juries look down at expensive courtroom trial presentation systems?
A: Not anymore. First of all, jurors know that the systems are no longer that expensive. Most jurors have seen equally impressive systems on their children's games. Furthermore, in the era of television news, people are used to receiving information from a monitor. Computers in the courtroom are no longer a novelty, and jurors tend to view attorneys who use them as up-to-date practitioners.
Q3: How do I keep on top of ongoing computer developments? A: Read everything you can. Many computer publications such as Law Technology News are distributed free of charge and an amazing amount of information is contained in the business section of any local newspaper. Get on the Internet and join a listserv such as Netlawyers or LawTech to find out what your peers are talking about. Also, attend technology shows and seminars sponsored by your local bar association, the annual ABA TechShow in Chicago, and the various Legal Tech shows or conferences sponsored by Glasser Legal Works. These "vendor neutral'' gatherings are virtual gold mines of computer information.
Annual supplements of this publication also provide excellent analysis of new software. For even more current information, consider subscribing to newsletters on technology and productivity in the law office.
To learn more about or to purchase The Automated Law Firm, A Complete Guide to Software and Systems, please click here.
Please send comments, questions and article proposals to information@smartpros.com. |
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