Issue 4.5 The Courthouse of the Future

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VirtualCourthouse; Issue 4.5
The Courthouse of the Future

Judge Arthur M. Monty Ahalt

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

Over the course of the last several years, many commentators have begun to paint the picture of the future courthouseSome go so far as to anticipate a paperless courthouse. Others describe a virtual dispute resolving process, which is unconstrained by time, place or physical barriers. This discussion has on some occasions created a resistance to change. On other occasions, there has been a healthy debate on the problems facing the Judicial Branch of the Government and how technology can help alleviate those problems. In working through an analysis of the value of technology, it is important to recognize that technology is but one of the resources available to the Judicial Branch of the Government. Where does technology fit into the picture? Before the resource picture is examined, the following factors will be focused upon for discussion:

Mission of the Court is to Resolve Disputes.

The function of the Court is to resolve disputes. The court accomplishes this mission in accordance with the constitution and laws in a fair, just and impartial fashion. www.montyahalt.com/guides/cgujbg/judicial.htm .

Dispute Resolution is Information-Dependent.

In order to resolve a dispute, the Court needs information. The information generally consists of: (i) the pleadings filed in court; (ii) the facts evidence; and (iii) the law.

Information is Provided Through a Process.

The information necessary to resolve the dispute is a result of a process, which consists of two principal components. First the process is sequential. That is, the information is provided piece-by-piece over a period of time. Until the process is complete all of the information is not present. Secondly, the process is adversarial. Each piece of information is subject to challenge, dispute and response by an opponent.

The resources necessary to accomplish the core mission of the Court are:

People

Courthouse

Information

Technology

Current Environment.

Many commentators and policy makers are pointing to some glaring deficiencies of the current dispute resolution process. The documented complaints fall into four categories:

1. The process is slow.

2. The process is too expensive.

3. The process is unnecessarily mysterious.

4. The process is too adversarial.

Roberta Katz, General Counsel for Netscape and a noted anthropologist, has written an extraordinarily helpful book, Justice Matters, www.discovery.org. In Justice Matters, Ms Katz analyzes the historical foundation for the court system and its current effectiveness. In her book, Ms. Katz points to several of these deficiencies especially the perception of unfairness and a breakdown in the adversarial dispute resolving process. “It is clear it has always been clear that the legal system does not function with mathematical precision. Because of differences in legal skills, because of the room for maneuver afforded by rules, and because of the inexact nature of precedent, opportunities for unfairness and injustice coexist with their opposites. But, increasingly, Americans feel that civil litigation is not being conducted fairly and that this unfairness goes far beyond the ‘traditional’ and occasional injustices. Over the past few years, many Americans especially those who have extensive contact with the system have begun to feel that unfairness is systemic. See Justice Matters, page 29.

“Still, in this context, the problem is not why people sue. It is how the system has come to handle the load, the growing burden of legitimate, frivolous and predatory cases. The sad fact is, the civil justice system, in its present form, is both dysfunctional and obsolete. Dysfunction and obsolescence make possible the other abuses, and permit those who exploit and misuse the system to make large profits from it.” See Justice Matters, page 40.

The Virtual Courthouse — Providing a Digital Bridge for the Legal Community.

The virtual courthouse will contain many historical components. First, it will be a physical structure with physical courtrooms. The historical symbolism which has demonstrated the importance of the concepts of justice, fairness and authority will maintain continued importance and value. Winston Churchill stated: “First we shape our buildings and then our buildings shape us.” However, technology holds great promise to reduce the amount of space needed in the Courthouse of the future because of the dramatically reduced need for paper storage, handling and processing.

The virtual courthouse will contain an environment with less paper but will not be paperless. It will enable some of its disputes but not all of its disputes to be resolved in a virtual world unconstrained by place, time or physical barriers. The virtual courthouse will contain an electronic case file. It will require fewer people and will be faster. The litigants will be able to access online information about the process of dispute resolving which will lessen the mystery and reduce the significance of local differences.

It is clear, however, that the promise of technology will not provide solutions for many of the deficiencies in the dispute resolution process. Indeed, technology may exacerbate many of the problems. With all of the efficiencies created by the personal computer it is clear that the volume of paper has been greatly increased by the use of the personal computer. In planning for the virtual courthouse, great care must be taken to guard against this potential misuse of technology. Nonetheless, technology can be a powerful resource in court reform that leads to a fair, impartial, speedy and just result.

The dynamics of failed government services including dispute resolution are causing many citizens to seek alternate legal systems. So the demand for gated communities has dramatically increased. These managed private communities along with homeowners and condominium associations provide clear-cut property rights and many governmental services.

On the cyberspace front, the Internet is creating its own set of rules and legal processes to handle inappropriate conduct. So there has developed the Virtual Magistrate, Internet Neutral and the Online Ombudsman’s Office Legal Space. See also www.cato.org.

by Judge Arthur M. Monty Ahalt – May 1999

Issue 4.4 Electronic Filing of Court Documents

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VirtualCourthouse; Issue 4.4
Electronic Filing of Court Documents

Judge Arthur M. Monty Ahalt

This Article was first published in the Prince George’s County, Maryland Journal/Newsletter
Electronic filing of court documents is a concept that means different things to different people. The diversity of the use of the words “electronic filing” when applied to the Courts of this Country is remarkable. Most all of the language disparity has occurred over the last three years. As recently as 1994, there barely existed a court which used the words “electronic filing.” Faxed pleadings were about the only subject being discussed. Over the past three years, there has been an explosion of the use of the words “electronic filing.” To some, especially the JEDDI organization, the words are associated with the concept of standardized exchange of electronic data and electronic documents. Others, such as JusticeLINK, use the words to communicate the concept of the electronic transmission of a document as an ingredient of the work process or paperflow of court pleadings from the preparation to the filing in court. Others, such as CLAD, use the words to identify a closed non-internet electronic environment for specialized high-volume cases such as asbestos or bankruptcy. Some use the words to describe the electronic posting of opinions and orders of court. Yet others use the words to identify the transmission of briefs by floppy disks or even CD-ROM. Others find the words descriptive of the use of E-mail for the filing of specialized pleadings.

Underlying the diversity of the words “electronic filing” is a debate over whether electronic filing can or should be accomplished by the government or whether it can be better accomplished by private industry. Those who maintain that it is a government function find support in the notion that government has the responsibility to maintain the integrity of public information. Those who side with private industry maintain that it has the ability to stay flexible in a fast-changing technological world. They further maintain that government cannot meet regional needs of the litigating public because of the diversity of the many governmental units represented by the different federal, state and county courts. On the government side of the argument, some advocates subscribe to the enervating notion that the filing system equates to control. My thirty-two years of experience, 15 years as a trial lawyer and 17 years as a trial judge, lead me to the inescapable conclusion that both sides are partially right and need to come up with creative methods to get the “best of both worlds.”

The Court’s primary mission is to resolve disputes. Members of the public who find themselves in the middle of a dispute are primarily concerned with cost and time. Cost and time are only increased by jurisdictional diversity. The public is demanding new and creative solutions to old problems.

Currently there are nine primary organizations

actively involved in the development of electronic projects: Federal Administrative Office of Courts, Federal Office, JusticeLINK , LawPlus , Legal File , Law-on-Line , CLAD , Microsoft/Choice/PCDocs , Image-X , Wade Systems , and West File, contact: Phil Ytterberg, 612-687-4557

What is 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 an electronic file are:

electronic transmission

case management integration

financial information integration

work process integration

jurisdictional and regional diversity

supports dispute resolution

litigation community input.

Electronic Transmission. This element has been the subject matter of 90% of the effort. However, this element is perhaps the easiest to solve. The original focus on the transmission has been by telephone access to a wide-area network or by fax.

Case Management Integration. Early efforts at electronic filing have focused on strategies that provide for an automated updating of case management databases. This has proven to be a major frustration because of the diversity of the data elements in the existing as well as the evolving databases. The focus on “standards discussion” has been on this element. Often the focus has been on the Court’s case management. Often forgotten in the discussion are the case management elements of the lawyer’s case management system.

Financial Information Integration. Many court filings require the payment of a filing fee. The initiation of this process begins in the lawyer’s office and ends in the Clerk’s Office. The correct amount of the fee should be calculated by the filing system. The system should transmit or authorize the transmission of money, update the lawyer’s accounting system and update the Court’s accounting system.

Workprocess Integration. As a lawyer prepares a document or pleading for filing, a decision making process moves the document from initiation to final form. After a document is filed with the Clerk of the Court, a decision making process moves the document to a judge to resolve the dispute and then back to the Clerk. An

electronic filing system should automate the lawyer’s work processes and the Clerk’s work processes. It is unreasonable to assume that all documents will be electronic. Thus, electronic filing must include a component of document management, storage and access. The workflow must be understood and re-engineered.

Jurisdictional and Regional Diversity. Many courts exist for the resolution of the public’s disputes. These courts represent different governments: Federal, State and Local. These courts also represent multiple states. The public wants to have a single electronic interface with all courts.

Supports Dispute Resolution. The documents of a case, the case management elements and the financial elements are only a part of the information that a judge needs to decide a dispute. The judge also needs the facts and the law to decide a dispute. All of the information necessary to decide the dispute needs to be available to the judge in electronic format.

Litigation Community Input. Many groups and individuals have a stake in the design and implementation of an electronic filing system. Some of those stakeholders are: lawyers, judges, clerks, court administrators, litigants, rules committees, policy makers, law schools and librarians.

ABA TechShow 99

On March 18-20, the American Bar Association held its Annual Technology Show. If you have not attended this event, you should put it into next year’s budget. You will hear and see the top technology applications for lawyers and judges. The first presentation on electronic filing of court documents was made three years ago. About 15-20 individuals attended the presentation. This year, there were four separate presentations on electronic filing by six organizations explaining their electronic filing projects. At some of the presentations, there were over 100 persons in attendance. On the final day of the show, a discussion group undertook the difficult topic of electronic filing standards. The pace of the commencement of electronic filing projects has clearly accelerated on the national scene.

by Judge Arthur M. Monty Ahalt – April 1999

Issue 4.3 Building an Electronic Case File – Selecting the Technology

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VirtualCourthouse; Issue 4.3
Building an Electronic Case File – Selecting the Technology

Judge Arthur M. Monty Ahalt

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



Over the past several months the focus has been on understanding the steps to building an electronic case file. The steps to creating an ECF are:

1. Creating a foundation for change.

2. Understanding the workflow of a judge and/or a lawyer.

3. Defining the elements.

4. Selecting the technology.

This month the discussion will conclude with an examination of the technology necessary to build an electronic case file. Selecting the technology is a three-part process that requires: (i) hardware; (ii) software; (iii) change management, project management and training. A starting point for preparing a budget for an ECF is 33 percent for each part. It is extremely important that the third part change management, project management and training not be underfunded. The consequence of underfunding this part is to dramatically reduce the return on investment made to purchase hardware and software.

In order to obtain a better understanding of the technology, the advice of Vibby Prasad, Director of Product Development for JusticeLink, was sought. According to Mr. Prasad, there are five elements which need separate technology for an ECF: (i) data; (ii) documents; (iii) security; (iv) information access; and (v) information transaction.

These areas allow large groups of individuals to communicate over a local area network (LAN). The technology necessary to enable a LAN from a hardware aspect are (i) file server and (ii) clients or personal computers (PCs). The technology necessary to enable a LAN from a software aspect are (i) network software such as Novell and (ii) applications for word processing, e-mail, etc. to be used on PCs.

For each of the five areas: (i) data; (ii) documents; (iii) security; (iv) information access; and (v) information transaction, there is a hardware consideration and a software consideration.

Selecting Technology for an Electronic Case File

Data

HARDWARE: File Server

SOFTWARE: Database; Case Management; Workflow

Documents

HARDWARE: File Server; Juke Box

SOFTWARE: Image Capture; Document Management; Workflow

Security

HARDWARE: Computer Gateway

SOFTWARE: Firewall Software

Information Access

HARDWARE: Internet Server

SOFTWARE: Web Server

Information Transaction

HARDWARE: Work Station

SOFTWARE: Transaction Software

As can be seen, there are numerous “servers” necessary. Unfortunately, the word “server” can be used as a descriptive word for both software and hardware. However, usually the word “server” refers to a computer (hardware). There are six necessary computer functions accomplished by a server: (ii) database server; (ii) file server; (iii) fax server; (iv) application server; (v) web server; and (vi) firewall server. Usually several of these functions are performed on one computer. For an entire integrated system, often all six functions are on no more than two computers.

The same architecture applies to both law office and the court. Obviously the size of the systems will differ dramatically smaller for law offices and larger for courts. The elements remain the same for both — DATA DOCUMENTS SECURITY INFORMATION ACCESS INFORMATION TRANSACTION. For many solo lawyers a high capacity powerful workstation will be capable of performing all of the functions in conjunction with an Internet Service Provider (ISP).

A word on computer guidelines for judges: Judge Richard B. Klein from the Court of Common Pleas in Philadelphia, Pennsylvania, has been at the forefront of advocating the use of computers by judges for over ten years. Judge Klein recently chaired a special technology committee of the ABA Judicial Division’s National Conference of State Trial Judges, which has recommended minimum requirements for hardware and software for Judges. The Committee’s full report is published at www.abanet.org/jd and will be periodically updated at that address and at www.ncsc.dni.us/ncsc/ct1 .

For standard solutions for the lawyer you should consult the attorney’s bible for electronic support entitled Litigation Support Systems: An Attorney’s Guide, 2nd Edition, written by James I. Keane which can be found at: www.cbclegal.com/catalog/lit./lss.html .

Cyber Secretaries. Here is a new service which might merit your investigation. Cyber Secretaries, the efficient new 24-hour computerized phone-dictation service. Cyber Secretaries provides you with an unlimited on-line staff of qualified, experienced word processors available for any size job, but with no ongoing commitment from you. All you need is a telephone and an e-mail address to use the service from anywhere in the world. Cyber Secretaries turns any phone into a dictation device. You simply dial a toll-free number and dictate as usual. The only difference is that the telephone keypad performs the forward, reverse, stop and playback functions. You can also fax handwritten or existing work to be transcribed. Your finished typed document is then e-mailed to your computer with a turnaround time equal to, or better than, an in-house staff. You can then review the draft document and edit it yourself or you can submit your changes via fax or further dictation. And all work transcribed by Cyber Secretaries is completely confidential and secure.
Contact: Richard Jackson at 1-800-828-5764 or e-mail rjackson@voice2doc.com. Website: www.voice2doc.com .

by Judge Arthur M. Monty Ahalt – March 1999

Issue 4.2 Ten Tips For a Virtual Law Office in 1999

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VirtualCourthouse; Issue 4.2
Ten Tips For a Virtual Law Office in 1999

Judge Arthur M. Monty Ahalt

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


________________________________________
TIP ONE: BECOME AN AGENT OF CHANGE. Change will not occur without a sponsor. The sponsors come from all levels of your organization ¬ from management to entry level. A key factor for a successful agent of change is enthusiasm. Success will likely pass over the unenthusiastic and strident agents of change. If you cannot be enthusiastic, you might as well not try to effect change. 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.

TIP TWO: UNDERSTAND THE DYNAMICS OF CHANGE. The dynamics or the patterns of change are rather predictable. When change is introduced into an organization, initially there will be some level of resistance. It should be expected that the resistance will produce a downturn in attitude and productivity. The level of resistance can be significantly reduced through the involvement of all the stakeholders in the process of planning for the change.

TIP THREE: DEFINE THE MISSION OF YOUR OFFICE.Solomon, the wisest man in all of history, says, “without a vision, my people perish.” The impact that technological change will have on your office will be lost if you have not clearly defined its mission.

TIP FOUR: ANALYZE THE WORKFLOW OF YOUR OFFICE.Analyze the Elements of the Paperflow in Your Office. A key to re-engineering your office is to first understand how you process information. This is a tedious process but nonetheless essential. You have to know where you have been before you can figure out where you are going. In the initial phases of JusticeLink, the Clerk’s Office analyzed each step they took in docketing a motor tort case from start to finish. They discovered 160 steps. They were then able to re-engineer that process with the aid of GroupWare to 120 steps, a 25% reduction in work.

TIP FIVE: UNDERSTAND TECHNOLOGY ¬ READ PERIODICALS. At first, a terminology barrier exists. The best way to overcome this barrier is to start reading about computers on periodic basis. A good place to start is the newspaper. Most newspapers now have a weekly section of columns about computers. Some are very basic “how to” questions and answers while others are more narrative articles on some new software or hardware. The point is that if you start using the words often, you will soon know and understand the terminology. Another good idea is to buy a different computer magazine a month off the newsstand and just read the advertisements and articles of interest.

TIP SIX: GO TO BAR CONFERENCES. Hardly a month goes by when there isn’t a bar technology conference somewhere in the Baltimore- Washington metropolitan area. The programs are high quality, practical, educational events. The quality is similar to the usual high-quality Continuing Legal Education seminars for years sponsored by local, state and national bar association leaders.

Events you should consider are the Maryland State Bar Association’s Techshow on February 19, 1999 at the BWI Marriott. Contact Pat Yevics at MSBA headquarters for details at yevicsp@msba.org. Or check at the Bar Association’s website at http://www.msba.org. Also consider the American Bar Association’s Techshow 99 on March 18-20, 1999 in Chicago, Illinois. Check the ABA’s website at http://www.abanet.org for further details.

TIP SEVEN: TALK WITH JUDGES AND LAWYERS. Experience, we know, is a great teacher. If you make the use of computers the topic of your conversation as you talk to judges and lawyers about your cases, you will be surprised at the amount of information you will gain in a very short period of time. What works? What doesn’t work? What new developments are helpful? What new developments are duds?

TIP EIGHT: BE WILLING TO TAKE RISKS. Nothing ventured is nothing gained. In order to begin to use technology to your advantage, you must be willing to risk some of your time and a little bit of money. With risk comes reward. The track record for technology is that until you put your time and money at risk, your learning curve does not begin. The sooner you start, the less time you will loose.

TIP NINE: GET ONLINE. Becoming connected to the rest of the world should be a top priority. Internet connections are available for as low as $5 per month for limited access. Don’t overly analyze the market. The plusses and minuses of each ISP (Internet Service Provider) probably do not make that much difference to the rookie. The national online services provide the easiest opportunity to get connected. They have good online help services. They also have multiple access numbers. They do not require a large investment, usually a one-month fee of less than $20.

TIP TEN. PREPARE A BUDGET. In planning technology, you should calculate the cost through a budget process of planning. Technology improvements should become a permanent part of your financial planning. A wise technology financial plan should include not only new technology but also replacement technology. Technology evolves at a fast pace; after all, Moor’s Law calls for a doubling of process speed every 18 months.

by Judge Arthur M. Monty Ahalt – February 1999

 

Issue 4.1 Building an Electronic Case File

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VirtualCourthouse; Issue 4.1
Building an Electronic Case File

Defining the Elements

Judge Arthur M. Monty Ahalt

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

Building an electronic case file (ECF) has been the topic of the last several columns. It is essential to create an ECF because it is the backbone of the virtual law office and the virtual courthouse. Remember if technology does not pass the test of doing a better job, more efficiently and for less money, then it should not be considered or used. The elements of the ECF are:

Creating a foundation for change.

2. Understanding the workflow of a judge and a lawyer.

3. Defining the elements.

4. Selecting the technology.

The concept of the virtual law office arises out of the inefficiencies of the paper courthouse world. In the November issue of Government Technology, Alison Sonntag puts it this way:

“Will the courts be pulled kicking and screaming into the Information Age? Can an institution responsible for sentencing millions of trees to death willingly wean itself from paper? Pressure to do something is mounting. From storage needs to courthouse traffic, concerns are forcing the courts to re-examine the way they work.”

Yes the inundation of the paper in the dispute resolution business creates an operational nightmare that interferes with the core mission of the courts ­ to resolve disputes. Yet the virtual law office/court house is more than just organizing the paper into electronic format. It is creating an environment where lawyers and Judges have access to information and work product while at the same time preserve and enhance collaboration and camaraderie elements of the workplace.

In defining the elements of the virtual law office/courthouse, it is essential to understand the purpose and mission of the law office and courthouse. Last month, we examined workflow in an effort to discover HOW the business of the lawyer and the Judge is conducted. Now we need to focus on WHAT lawyers and Judges need to achieve their core mission.

A Judge’s core mission is to decide disputes. A lawyer’s core mission is to persuade and advocate a successful resolution of the dispute on behalf of a client. A Judge is focusing on decision-making while a lawyer is focusing on persuasion and advocacy. Obviously, lawyers participate in many other activities. However, we will focus here on those activities relating to dispute resolution.

In order to accomplish the core mission of a Judge, the Judge needs: (i) the law; (ii) the facts; and (iii) the case file.

JUDGE

The law consists of statutory law, case law, jury instructions, secondary authorities such as treatises, law reviews and the Judge’s own personal work product. The facts consist of the testimony of the witnesses (real time, audio, video), the physical evidence and documentary exhibits. The case file consists of the pleadings filed in the court’s case jacket.

In order to accomplish the core mission of a lawyer, the lawyer needs: (ii) the facts; (ii) the law; (iii) the discovery; and (iv) the court case jacket.

LAWYER

The facts consists of client statements, witness statements, expert reports, documentary evidence and photographic evidence. The law consists of statutory law, case law, jury instructions, secondary authorities such as treatises, law reviews and the lawyer’s own work product. The discovery consists of witness depositions, interrogatories, requests for admission of facts. The court case file consists of all pleadings filed in the court case jacket.

The key is to allow the lawyer and Judge to access this information in a consistent graphical user interface (GUI) where there is an easy-to-use point and click access to the components necessary to complete the mission. It is critical that the lawyer and the Judge be provided a work space which minimizes key strokes because many are not proficient typists. As much of the process also needs to be automated. For instance, if the lawyer or Judge is dealing with a personal injury case, then the law is automatically focused on personal injury jury instructions and personal injury-related work product.

by Judge Arthur M. Monty Ahalt – January 1999