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Issue 4.7 Remaking the Courts of America

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VirtualCourthouse; Issue 4.7
Remaking the Courts of America

Judge Arthur M. Monty Ahalt

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



We find ourselves confronted with the information age. Change is being thrust onto almost every facet of life. It is like a whirlwind, which will not let up and move on. Simultaneously, judicial and bar leaders are coming to grips with the genuine and real perception that citizens do not have trust in nor confidence in courts or the legal profession. These two dynamics — the information age and public trust and confidence — will compel the reshaping and indeed the remaking of the courts of America.

As dusk settles on the Twentieth Century, the judicial system gropes to embrace the information age. As the sunset turns to the dawn of the Twenty-First Century, judges, lawyers and administrators struggle to cope with the many changes forced on a system rooted in tradition and principles that change not. You see, the law’s supreme foundation is stability and certainty. Change thrusts itself from all directions the far left the far right and the muddled middle. Not only are there changes brought on by legislators, governors and presidents but the very fabric of our communities is being challenged by the lightening speed of change occasioned by new and evolving information technology.

Critics say that the system of resolving disputes is too slow, too cumbersome, too expensive and too mysterious. It is as if the line of people waiting to have their disputes resolved has not changed from the days of Moses almost 5,000 years ago. In that day, as it is recorded in the book of Exodus, Moses’ father-in-law, Jethro, came to visit him. After observing Moses for several days, Jethro told Moses ” what you are doing is not good. You and these people who come to you (with their disputes) will only wear yourselves out. The work is heavy for you; you cannot handle it alone. (Exodus 18:17, 18). Indeed, recently Representative J. C. Watts pointed out during the impeachment debate “[T]here is no joy sometimes in upholding the law. It is so unpleasant sometimes that we hire other people to do it for us. Ask the police or judges it is tiring and thankless, but we know it must be done.”

The dynamics of the information age and public trust and confidence are not just focusing on courts and the legal profession. Rather they are the same twins who are focusing on the business community and government. In the March edition of The Futurist Magazine, Bennett Davis identified the Five Forces Redefining Business, Profits from Principles. “These five forces are converging to share business’ new social imperative: consumer conscience, socially- conscious investing, the global media, special-interest activism and expectations of corporate leadership.

First, today’s consumers have learned by experience that societies and economics like nature are closed systems.

Consumers’ new conscience have complemented and cultivated the second factor the rise of socially conscious investing.

Those potential problems are exacerbated by the third factor: a competitive, unsparing and technologically-endowed media especially television that makes once abstract concepts like global warming or sweatshop labor personal to consumers.

Fourth, zealous special-interest groups have become deft at using the media to link corporate practices with social and environmental problems and solutions.

Fifth, the public is transferring its expectations of leadership in solving social problems from government to business.”

The similarities in the issues confronting business and the Courts are remarkable. Then we add to this mix the concept of e-commerce and the disturbing winds of change become more daunting and challenging.

What is e-commerce? How will it impact dispute resolution and the business of dispute resolution?

According to MIT professors Chris Westland and Ted Clark, “Electronic commerce or e-commerce is the automation of commercial transactions using computer and communication technologies.” Global Electronic Commerce, Westland & Clark, 1999 http://143.89.56.92 .

E-commerce is in essence the computerization of markets whereby buyers and sellers are matched, a price determined and payment and delivery arranged.

E-commerce is providing increasing opportunities because: (i) technology is user friendly; (ii) networks exist in stable forms; and (iii) business is reorganizing and re-engineering production and managerial processes.

What are the implications of the dynamics of e-commerce on the dispute resolution process? On the courts? The implications will manifest themselves on the substance of litigation and the process of litigation. The substance of litigation is the subject matter of the dispute. The process of litigation is the manner and method of filing a lawsuit and pursuing a claim in court. Over the next several months, we will examine e-commerce and its impact in greater depth.

Over the past several years we have witnessed an unrelenting marching evolution from purchasing EDI to ATM dispensed cash, to pay at the pump ATM gasoline stations, to point of sale cash register computers, to internet renewal of drivers’ licenses to the purchase of books on the internet. Simultaneously, the realization is setting in that the world is becoming borderless in the sense that time and space are no longer significant barriers to a business transaction.

NEW BEGINNINGS

As you may know, this will be the last column penned by Judge Ahalt. Beginning in October, the column will be penned by Retired Judge Ahalt. After considerable prayer, thought and counsel, I have determined not to seek another term as an Associate Judge of the Circuit Court for Prince George’s County. I will retire September 17, 1999. On September 20, 1999, I will begin a new career as Chief Industry Advisor for JusticeLink. This position will occupy about 80 percent of my time. The balance will be devoted to arbitration, consulting, speaking and development of the Virtualcourthouse.com web site.

by Judge Arthur M. Monty Ahalt – August 1999

Issue 4.6 Be a Persuader Not a Presenter

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VirtualCourthouse; Issue 4.6
Be a Persuader Not a Presenter

Judge Arthur M. Monty Ahalt

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


________________________________________
Be a Persuader Not a Presenter
Technology will help you to be a persuader ¬ not a presenter. One of the chief failings of today’s trial bar is the lack of the skill to persuade. Less than 20 percent of the trial attorneys are really skilled persuaders. That means that 80 percent of trial attorneys are presenters and not persuaders. Persuasion is the key element to winning a lawsuit. Persuasion is essential not just on the facts but also on the law. Nationally, the trial bar is coming to realize that technology is a powerful tool in achieving victory in the courtroom.
Technology programs are beginning to appear on every bar association program. The message is becoming crystal clear. Technology is an essential tool to winning in the courtroom. Technology is being used not just for the megatrial as it was two or three years ago. Technology is being used in the every day garden-variety cases that appear by the thousands each day in the courts of this nation.
Technology, however, will not help the presenter win in the courtroom. However, technology will have an enormous empowering impact on the persuader.
So how is it that a lawyer becomes a persuader and not just a presenter. How does a lawyer move from the bottom 80 percent of the class to the top 20 percent of the class.
Lawyers regularly come back to chambers after a trial and want to know how they did in their performance. Whether they have won or lost they want their performance critiqued. First, I point out that winning and losing a lawsuit is not a measure of professional skill. Good persuaders cannot overcome bad facts and law. Nor can poor persuaders destroy good facts and law. Moreover, the dynamics of a jury trial often allow a jury to overcompensate for poor lawyering. What trial judge has not been told by a jury ¬ “boy that lawyer was just horrible but we could not hold it against the client.” Often they even add “can we make sure the lawyer doesn’t get paid.”
Second, I tell the inquiring lawyer that to become a top-notch trial lawyer, you have to make it your professional zeal to study the art of persuasion. You need to make it the object of your attention every waking hour of the day. That means you have to read about the art, observe the practice of the art, study the art and practice the art. If you haven’t been to a trial practice week-long course, you need to put it at the top of your priority list. If your employer will not pay for it, you need to save the money and take a week’s annual leave. If it is essential, a true professional will make it their personal professional priority.
Third, you have to understand the elements of persuasion.
The elements of persuasion were first established 2000 years ago by Aristotle, the father of persuasion. Those elements are: (1) believability; (2) sympathy; and (3) logic. These three elements are controlled by the rule of first impressions. The judge’s and jury’s first impression of your case begins when your case first starts. Care must be taken to avoid poor first impressions. Impressions are primarily learned through sight and hearing, although at times the senses of feel and taste will come into play. Constant care must be taken to avoid words and actions which will create negative impressions. Considerable thought and effort must also be given to methods which will create positive impressions. The five primary rules of persuasion can therefore be state as: (i) first impressions; (ii) first impressions; (iii) first impressions; (iv) first impressions; and (v) first impressions.
Now with the rule of first impressions firmly in mind, let us examine with specifics how to apply Aristotle’s time proven three rules of persuasion.
Believability (ethos). The first task in presenting your case is to cause the judge or jury to believe that you are a credible person; a believable individual as opposed to one who exaggerates, overstates and uses half truths. A believable person is credible, trustworthy, plausible, authentic and dependable. A believable person is also fair. Fairness is demonstrated by treating your adversary’s case as important. What are the actions and words of a believable person?
Actions: (i) Dresses as if the event is the most important in life; (ii) stands when speaking; (iii) faces the person to whom speaking; (iv) engages judge’s or jury’s attention/eye contact.
Words: (i) Polite, respectful; (ii) truthful; (iii) direct and to the point; (iv) organized; (v) chronological; (vi) permissively repetitive.
Most of the Bar appears to be oblivious to the fact that their believability in their next case is established by their performance in their present case. If you misquote a case today, why would a judge believe you tomorrow. If you fail to tell a judge about an important case contrary to your position today, why would the judge believe you tomorrow.
Sympathy (pathos). The second goal in presenting your case is to appeal to the emotions of the judge or jury. Effort needs to be directed to causing the judge or jury to be sympathetic to you and your case. Sensitivity is the watchword. You must understand who the judge is, what the judge wants, where the judge has been, where the judge is going. Much like a salesman who finds out about his customer before the sales pitch is made.
Logic (logos). What are the logical reasons the case should prevail? Your case must have logical reasons to prevail. Your argument should be built line upon line, principal upon principal. Webster defines logic as follows: The science that deals with the canons and criteria of validity in thought and demonstration; the science of the normative formal principles of reasoning. Traditionally, logic comprises: (i)) the “doctrine of terms,” the principles of definition, classification, and the correct use of terms; (ii) the “doctrine of the judgment,” or principles of correct predication; (iii) the “doctrine of inference,” covering reasoning or demonstration proper. Logicians are divided in their conception of the content and significance of logic. The main tendencies and bodies of doctrine are as follows: (i) traditional or Aristotelian logic; (ii) modern or Epistemological logic; (iii) pragmatic, instrumental or experimental logic; (iv) psychological logic or psychologism; and (v) symbolic or mathematical logic.
You need to become a student of logic so that you can craft your arguments be it on the law or facts to have reasoned authority.

by Judge Arthur M. Monty Ahalt – June 1999

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