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VirtualCourthouse; Issue 3.7
Creating An Electronic Case File

Judge Arthur M. Monty Ahalt

This Article was first published in the Prince George’s County, Maryland Journal/Newsletter



The centerpiece of the virtual courthouse and the virtual law office is the electronic case file (ECF). An ECF is the compilation in electronic format of all relevant materials for the judge to decide a dispute or a lawyer to represent a client. In order for a judge and a lawyer to achieve time and space efficiencies, they both must create an electronic case file. Common sense would instruct that the judge and the lawyer should jointly participate in the development of the ECF because of the interdependent nature of their work. As we shall see, many of the elements of the lawyer’s ECF and the judge’s ECF are similar if not the same. Before we examine those elements, a building process must be structured. That process is composed of:

Creating a foundation for change

Understanding the workflow of a judge and a lawyer.

Defining the elements.

Selecting the technology.

The process is sequential with each step building upon the prior step.

Step 1: Creating a Foundation for Change: Embrace Change as a Friend not an Enemy.

Change is an inevitable product of the technology offered by the information age infocosim. Ordinarily, people resist, fight or ignore change. When those dynamics of resistance occur, change in people’s work patterns occur very slowly and productivity decreases. On the other hand, when change is embraced with an attitude of acceptance, people’s work patterns change very fast and productivity dramatically increases.

Change is the master of all productivity improvements. Without change, there is little room for improvement. With change, the foundation for improvement is set. Change, however, does not guarantee improvement and success. Many have examined the elements of change over the last decade. Some have taken a more radical approach while others have taken a more methodical approach. A little of both is probably needed.

Step 2: Understanding the Workflow of a Judge and a Lawyer.

The nature of the workflow of a judge and a lawyer is similar in many respects. In its simplest form, it is a process of information coming in, decision, and then information going out. For the judge, that process can be broken into four separate stages: (i) public to clerk; (ii) clerk to judge (information in); (iii) judge to clerk; and (iv) clerk to public (information out). For the lawyer, the phases are similar: (ii) client to lawyer; (ii) public to lawyer (information in); (iii) lawyer to court; (iv) lawyer to public; and (v) lawyer to client (information out).

Step 3: Defining the Elements

The elements of a judge’s ECF are: (i) the docket of court filings; (ii) the electronic court filings or electronic images of court filings; (iii) the law in electronic format; (iv) the evidence — an electronic recording or transcript of the testimony, the exhibits as electronic images; and (v) the court’s decision. The elements of a lawyer’s ECF are: (ii) the docket of information received; (ii) the images of each document received; (iii) legal research; (iv) legal memoranda; and (v) court filings.

Step 4: Selecting the Technology

The technology necessary to support an ECF consists of hardware and software. On the hardware side of the equation, personal computers (PCs), servers and modems form the hardware infrastructure. On the software side, office suite software (word processing, spreadsheet database, presentation), GroupWare, communication and imaging/file management software form the software infrastructure.

The most critical software, however, is GroupWare. GroupWare is defined as any application that promotes communication, collaboration and coordination among teams of people. There are presently four main organizations that provide a GroupWare solution: (i) IBM-Lotus Notes 4.5 powered by Domino 4.5; (ii) Microsoft-Exchange; (iii) Novel-Groupwise; and (iv) Netscape-Suitespot.

The concept of GroupWare is broken down into two areas: Commonware and Workflow. Commonware consists of: (i) e-mail; (ii) calendaring/scheduling; (iii) discussion databases; and (iv) publishing document databases. Workflow consists of three components: (i) knowledge database; (ii) tracking application; and (iii) workflow applications. For purposes of visualization, the following client depicts this breakdown:

All four GroupWare providers provide the commonware elements. However, the workflow element is provided only by IBM-LotusNotes 4.5 for Domino.

CourtLINK Watch: Electronic Access to Court records will soon be available. The Court, the County and CourtLINK have signed the Licensing Agreement. Watch for a formal announcement for subscription information by mid-September. You also should check for opening dates at the CourtLINK website: www.courtlink.com or call 1-800-774-7317 to pre-register.

by Judge Arthur M. Monty Ahalt – September 1998

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VirtualCourthouse; Issue 3.6
There Are No Free Records

Judge Arthur M. Monty Ahalt

This Article was first published in the Prince George’s County, Maryland Journal/Newsletter


________________________________________
Paper, paper everywhere, but not the piece that I need. The cost of litigation has exploded in the last ten years. Much of the cost of litigation is the product of inefficient and antiquated work processes. A major contributing factor to the cost is litigation’s dependence on paper. The dependence on paper starts with the litigants, is perpetuated by their lawyers, and is required by the Courts. (See Litigation Integration at www.mdlaw.net/ahalt/vc-15.htm).
Let’s look at the paper volume in just one court — the Circuit Court for Prince George’s County, Maryland. Prince George’s County bordering on the east side of the Nation’s Capital has a population of almost 800,000. There are 21 Judges in the Circuit Court. In 1994, there were 42,700 cases filed representing 1.7 million pieces of paper. Demographic experts predict that in the year 2000 there will be 65,000 cases filed representing 2.6 million pieces of paper.
While these numbers are significant, they alone do not define the problem. The problem comes from the judges’ need of paper to render a decision. In Prince George’s County, 45,000 cases are filed per year. Each case file goes to a judge at least five times for a decision. That means that there are a total of 225,000 moves of the files to 21 judges over a 400,000 square foot building. When a file moves, a person (court employee) has to move the case file. That costs the taxpayers of Prince George’s County almost $1 million per year. The problem does not end there. Perhaps the biggest problem that exists is for litigants and the public. They cannot locate the case file when they come (after spending time and money) to the courthouse to look at the file.
One of the great anomalies the advent of the personal computer has brought is the creation of more paper without a change of the work processes, which create the paper. The costs and inefficiencies of the overwhelming paper volume is requiring decision makers to examine the alternatives offered by the electronic world. Other businesses and institutions have successfully addressed their paper problems with electronic solutions — why can’t the litigation world? — so the reasoning goes.
There are, however, many factors that inhibit and deter a true coordination of all of the variables such as people, institution and types of information. The primary deterrent is the diversity and independence of the participants.
First, the litigants. They represent geographical diversity, political diversity and institutional diversity. They have competing visions and missions and they are usually participating in an adversarial capacity. They do business and have disputes in different cities, different counties, different states, different regions and even different nations. No one court, legislator or executive has authority to compel their action.
Second, the courts, where the dispute is resolved. They likewise represent geographical diversity, political diversity and institutional diversity. There are national courts (U.S. Federal courts), State courts and County courts. A separate constitution and separate legislation create each. A different executive/legislative budget process funds each. For instance, there are over 3,000 counties in the United States. County courts in some states are funded entirely by the state budget and, in others, entirely by the county budget, and yet others by a combination of state and county budgets.
The Washington-Baltimore metropolitan area is not unlike many metropolitan regions. Metropolitan regions, of course, account for a substantial majority of all litigation. The Washington-Baltimore region is composed of two states — Maryland and Virginia — and the District of Columbia. Within this region, the Federal court system is composed of four separate courts: (i) the U.S. District Court for Maryland-Baltimore; (ii) the U.S. District Court for Maryland-Southern Division-Greenbelt; (iii) the U.S. District Court for the District of Columbia; and (iv) the U.S. District Court for Northern Virginia. There are nine state trial courts: (i) Fairfax; (ii) Arlington; (iii) DC Superior Court; (iv) Prince George’s County; (v) Montgomery County; (vi) Howard County; (vii) Anne Arundel County; (viii) Baltimore City; and (ix) Baltimore County. These fifteen separate trial courts have separate computer systems and separate databases and separate ways of doing business. Moreover, no one jurisdiction has the authority to compel another to subscribe to their way of doing business.
In this paper world, the cost of accessing court records is great. In many cases, the cost is a significant deterrent to getting court records. For example, if an individual needs court record information about cases pending in the 15 separate courts in the Washington-Baltimore metropolitan area, they must make 15 separate trips to 15 separate buildings. If it takes two hours for each trip, then someone has to pay for the 30 hours, not to mention the cost of transportation to and from each court.
As the paper problems have increased, the courts have struggled to cope. Most state courts are grossly underfunded and do not have technology budgets adequate to purchase personal computers much less imaging or electronic filing systems. Even the better funded Federal courts are not provided adequate technology resources. It is in this climate that the concept of public/private partnerships has evolved. Consequently, courts are being provided the opportunity to acquire technological resources otherwise unaffordable to cope with the avalanche of paper.
That the public has a right to access court records is not a seriously debated subject. The Federal and State Constitutions as well as the common law make it clear that the public, generally speaking, is entitled to access court documents except for several well-identified privacy areas such as juvenile and adoption records. See 84 ALR 3d 598. See also, Privacy and Public Access to Electronic Court Information by Susan Jennen, National Center for State Courts, 1995. Court rules on both the State and Federal levels are adding definitions and specifics to the rules concerning public access.
On the other hand, for-a-fee electronic access is a seriously debated topic. Generally, electronic access fees fall into several categories: (i) those designed to recover the direct costs of providing access by a court or government operated system; (ii) those designed to recover the indirect cost by a court or government operated system; and (iii) those designed to generate a profit for private technology providers and revenue for the government.
Underlying the debate is the notion that court records should be provided for free. The advocates suggest that there is no cost to providing access to court records. The reality, however, is that there is enormous cost to the maintenance of court records. As electronic access and technology have evolved, the costs have increased. Moreover, as the public has demanded that the records become more user friendly, the estimated costs have increased even more. In short, there are no free records — somebody pays for the records. Historically, it has been the taxpayer that pays through the government’s general revenues. Since the Judicial Branch of the government receives the least amount of the general tax revenues, it does not obtain sufficient resources to make its records accessible in the information age.
As the public has demanded greater electronic access to court records, many have questioned the government’s ability to provide up-to-date user-friendly technology. The public demands for greater electronic access is not based upon some idle curiosity. In most instances, it is based upon real and legitimate business need. Employers need criminal record information. The news media needs news information. Financial institutions need credit information. Lawyers and litigants need docket information. Ordinarily, government functions in a extremely deliberate fashion. It is not the nature or business of government to react fast even in the information age. It is with this background that private organizations have begun to offer court information for a fee.
CourtLINK (www.courtlink.com), a service of DataWest, is the most notable of these evolving services. To date, they offer their customers electronic access to U.S. District Courts, U.S. Bankruptcy Courts, New York State Courts, Oregon State Courts and Washington State Courts. They will soon add Virginia State Courts and the Circuit Court for Prince George’s County. Each one of these jurisdictions has made the public policy determination that public access of court records for a fee is good public policy.
Appropriate policy of the court and community should provide access by both public and private organizations. The court should determine what information will be available and allocate its discretionary resources to providing at least elementary electronic access. The cost of such access should be enough to maintain and improve the technology allowing the access.
Private for-profit information organizations such as CourtLINK, Westlaw, Lexis-Nexis and LawPlus (for a full list see www.mdlaw.net/ahalt) should be permitted access for a fee. Such access will be technologically superior and the cost will probably be greater. Thus, the court meets the needs of the entire community rather than reducing their service to the lowest common denominator. A policy, which makes court information available to the largest number of people meeting the needs of a diverse technological community, is a wise policy. Protection of privacy or confidentially issues occurs when each court determines which records will be electronically published.

by Judge Arthur M. Monty Ahalt – August 1998

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VirtualCourthouse; Issue 3.5
The Electronic Courtroom

Judge Arthur M. Monty Ahalt

This Article was first published in the Prince George’s County, Maryland Journal/Newsletter

 

The cost of technology is dramatically declining as a result of increased use and production creativity. Increased use has also provided proof that operational costs can likewise be dramatically reduced. The time to complete a task has also been shown to be dramatically shortened. It is not uncommon for productivity gains of 40 percent and greater to be shown.

The emerging challenge is to convert those productivity gains to the courtroom and reduce the time of trial — especially in document intensive cases. Very few existing courtrooms are equipped to accommodate the electronic presentation of evidence. In the Circuit Court for Prince George’s County, none of the 21 courtrooms have any significant equipment to facilitate the electronic presentation of evidence. Indeed, in the over 700 jury trials a year in the Circuit Court only a few have used any of the new emerging tools that are rapidly becoming available.

The Circuit Court has already established national and state leadership by pioneering video arraignments from the County detention center and video recording of the record in three courtrooms. Additionally, the 8 courtrooms – hearing rooms in the Marbury wing of the Courthouse have significant aspects of the infrastructure already in place. Several notable examples of the future electronic courtroom are now available to serve as models for the country’s courtrooms. Several electronic courtrooms have existed for over five years in Dallas, Texas; Los Angeles, California; and Phoenix, Arizona. More recently, at least two law schools have undertaken model electronic courtrooms: Courtroom 21, a joint project of the National Center for State Courts and the Law School of the William & Mary College (www.courtroom21.net ) and the Courtroom of the Future located at the University of Arizona School of Law (www.law.arizona.edu ). The Federal Courts have initiated ten high-tech federal courtrooms. Courtroom 9 in the United States District Court in Washington, D.C., serves as one of those high-tech courtrooms.

Courtroom Number 9, U.S. District Judge Thomas Hogan’s courtroom, is a state-of-the-art courtroom costing $120,000. Much of this cost can be attributed to raising the level of the well of the court floor to enable wiring and accommodate ADA compliance. The technology components consist of:

ELMO evidence presentation equipment enables counsel to present evidence to the judge and jury by a video monitor. The evidence can be in any medium such as documents, photographs, negatives, x-rays, 3-D objects, etc. The courtroom clerk has a “kill switch” on the bench that can turn off the entire system if the judge determines that certain images should not be made available to the jury.

Video monitors are placed around the courtroom for the judge, the witness, the courtroom clerk and each counsel table for the display of evidence from the ELMO, the VCR and PCs. The jury box has eight 10″ monitors. One monitor is placed between every two juror chairs. In addition, there is a 37″ monitor just inside the well of the court for the gallery to view anything that is displayed through the system.

Light pens for annotation enable the witnesses and counsel to draw John Madden style point, and highlight on the video monitor itself any evidence or document that is displayed through the system.

Video Cassette Recorder allows playback of evidence through the video monitors. The VCR also contains a freeze-frame feature that allows the operator to slowly advance or freeze an image.

A customized integrated podium holds all of the equipment which includes a light pen for annotation, a bar code pen, the VCR and a small video monitor to provide whoever is at the podium with the ability to see what is actually being transmitted in the courtroom.

Counsel Connection Boxes are located at each counsel table. These boxes enable counsel to plug in a laptop computer and present trial documents and/or evidence through the video system.

A PC Docking Station is on the bench for the judge which enables the judge to plug in a laptop computer (provided with the courtroom) and take notes electronically, view real-time reporting and conduct legal research. At the close of the day or session, the judge can remove the laptop for further use.

Real-Time transcription is used to capture the record. CaseView II, a software product from Stenograph Corporation, enables the record to appear in English on certain video monitors in the courtroom as the court reporter takes the record.

A PictureTel Video Conference system in use for video conferencing.

A Touch-Screen monitor is located at the courtroom clerk’s work space which allows the control of the signal that goes to each monitor within the courtroom.

New Counsel tables with retractable power centers and power spheres enable attorneys to plug in a laptop computer right at the work surface. A PC with DCN connectivity is located at a smaller table for the law clerk.

The price tag for the state-of-the-art electronic courtroom may seem out of reach for a State court. However, Professor Winston Woods, University of Arizona School of Law, provides a cost-effective three-step strategy to introduce electronics into state court courtrooms. A basic system (costing $15,000-$20,000) is composed of: (i) ELMO; (ii) VCR with shutter control; (iii) large screen television; and (iv) computer interface for television. First Level Add-ons would include: (i) multi-unit distribution system; (ii) monitor system; and (iii) amplified sound system. Second-Level Add-ons include: (ii) single input PointMaker; (ii) video tape recording system; and (iii) high-end video document cameras.

The Bar in partnership with the Court should seek creative funding to equip at least two courtrooms with a basic electronic courtroom system. Strategies should be developed for purchase of First Level and Second-Level Add-ons.

by Judge Arthur M. Monty Ahalt – May 1998

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VirtualCourthouse; Issue 3.4
The Elements of Electronic Filing

Judge Arthur M. Monty Ahalt

This Article was first published in the Prince George’s County, Maryland Journal/Newsletter



Electronic Filing

Electronic filing is the transmission by computer of a court pleading to the Clerk of the Court. The filing should contain all necessary case management and financial information in electronic format. It should facilitate electronic document management for the litigant, the lawyer, the clerk and the court. The elements of electronic filing are: (i) electronic transmission; (ii) case management integration; (iii) financial information integration; (iv) work process integration; (v) jurisdictional and regional diversity; (vi) supports dispute resolution; and (vii) litigation community input.

Electronic Transmission

A lot of energy and emotion is expended on electronic filing systems that are focused on the Internet. The key to this element is the movement of the electronic document from one place to another. This can be accomplished on the Internet but it can also be accomplished on a telephone line or a wide area network (WAN). Care must be taken to analyze the pluses and minuses of each method. Areas of analysis should include cost, security, stability/dependability. Analysis should also include the impact of the method chosen on the remaining elements. For instance, will the use of the Internet as opposed to a WAN support or deter financial information integration? The transmission being only one of seven elements should not allow the “political correctness” of the Internet to blind consideration of other elements.

Case Management Integration

The redundancy of the input of the same information at numerous stages of the process must be eliminated. A well-designed electronic filing system captures case management information electronically. Staff time for the input of information is kept to a minimum.

Financial Information Integration

Perhaps the most time consuming and staff consuming part of the process for filing court papers both in the law office and the court is financial. In the law office, the lawyer must go through the bookkeeper to get a filing check. In the court, the clerk has to record the check, issue a receipt and send the check to the accounting department. There should be only one step in the law office and one step in the court, both electronic.

Work Process Integration

The filing of court documents is process driven and not detail driven. One must first identify the flow of INFORMATION IN and then the flow of INFORMATION OUT. This element could be the greatest cost saving for both the lawyer and the court.

JusticeLINK, the national electronic filing pilot, overwhelmingly demonstrated that the time savings could exceed 25 percent. In the Clerk’s Office, clerical steps for the docketing of a motor tort were reduced from 168 steps to 122 steps. In a foreclosure case, 122 steps were reduced to 97 steps. In the lawyer’s office, the savings were determined to be in excess of $15,000 per lawyer.

Supports Dispute Resolution

Often the focus on the electronic transmission of the document clouds the main mission of the courts — to decide cases fairly, impartially and expeditiously. The case file is only one element of information a judge needs to decide a case. It must be integrated with the law and the facts — the other elements.

Litigation Community Input

A large and diverse group of individuals are affected by the electronic filing of pleadings. The impact of a system on these groups must be sought and considered. They include: (i) lawyers, (ii) judges, (iii) clerks of court, (iv) court administrators, (v) litigators, (vi) rules committees/policy makers, (vii) law librarians, and (viii) law schools

Jurisdictional and Regional Diversity

The great temptation is to concentrate on statewide systems. After all, the argument goes: It is better to deal with just 50 systems. This analysis ignores the reality of jurisdictional diversity and the necessity of regional diversity. Few if any states are capable of a “one-size-shoe” fix for all of the courts of the state. Limited jurisdiction courts, for instance, have a work process, case management, and financial information need that is different from general jurisdiction courts, which differs from appellate courts. The diversity between state courts and federal courts adds yet another challenge. Finally, the diversity between several states within a region of states provides an additional hurdle. Many courts already have mature systems, which cannot be radically changed. Finally, the litigants’ needs — the most important — do not stop at state, county or federal lines. An electronic filing system must be flexible enough to accommodate this diversity.

Funny Pleadings and Things:

A United States District Court Judge from Oklahoma was pushed over the edge by a group of argumentative lawyers when he issued the following order:

“Defendant’s Motion to Dismiss or in the Alternative, to Continue Trial is denied. If the recitals in the briefs from both sides are accepted at face value neither side has conducted discovery according to the letter and spirit of the Oklahoma County Bar Association Lawyer’s Creed. This is an aspirational creed not subject to enforcement by this Court, but violative conduct does call for judicial disapprobation at least. If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.”

By Judge Arthur M. Monty Ahalt -April 1998

 

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