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Issue 6.6 Overcoming Barriers to Electroninc Filing

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VirtualCourthouse ; Issue 6.6
Overcoming Barriers to Electroninc Filing

Judge Arthur M. Monty Ahalt (Ret.) September 2001

Usually the initial reaction to electronic filing of court documents is positive – “of course we should start an electronic filing project – it is the Information Age after all”. But then enthusiasm turns to caution when the details are considered. The details often reveal so many potential barriers that the process seems overwhelming and often early momentum turns to an agonizingly slow process. However, as the pioneer’s venture into the unknown, barriers are overcome, lessons are learned, and progress occurs. As new courts are added to those that accept electronically filed pleadings over the Internet some patterns have developed which are demonstrating that the barriers to electronic filing can be successfully overcome. Here is how the common barriers have been overcome in some courts.
RESISTENCE TO CHANGE
The number one barrier is resistance to change. Changing the way we do things is at the very least an uncomfortable topic. It is uncomfortable and threatening largely due to the unknown. Change, however,is also the engine that allows for better performance for less money — it permits doing more with less. How important are the dynamics of change to a successful technology? Unless a court has the tools and equipment to successfully manage change, successful electronic filing will be difficult to obtain.
It is important to recognize that there is a dynamic known as change. Change enables the transition from paper to technology. This dynamic, the dynamic of change, accounts for change-related stress, resistance to change and performance response to change. Whenever new technology is introduced into the workplace, it should be expected that there would be an initial downturn in attitudes and productivity. The key is to minimize the downturns. This is accomplished through leadership, sponsorship and involving the stakeholders in the process of designing and implementing the change. It is essential to change the environment from resistance to commitment.

The number one ingredient for managing change is Judicial Leadership. If a Judge becomes a champion of change the rest of the courthouse community and the bar association will follow. Let’s examine some examples of Judicial Champions of Change who have motivated and led successful electronic filing projects.
Jefferson County, Texas. In 1995 Judge Jim Mehaffy, became one of the first state court trial judges to accept pleadings electronically – a bold act of leadership in 1995. Judge Mehaffy describes the experience “ like the fellow who swallowed the first oyster”.
Montgomery County, Texas. Judge Fred Edwards became the first judge to mandate electronic filing for the court’s entire docket. This was an act, which met with much resistance from the bar, but has proved to be efficient not only for the bar but also the court. Judge Edwards became a leader by being willing to take risk to solve problems and by being proactive with the bar. Now other judges in Montgomery County are following the example.
Fulton County (Atlanta), Georgia. Judge Henry Newkirk, of the State Court, was faced with an insurmountable asbestos docket and enlisted the input of the bar, which agreed to an electronic filing project. He received complete support from Chief Judge Albert Thompson and technology committee Chair, Judge Gino Brogdon. Because of the success of the project Superior Court Judge Philip Etheredge soon joined him
San Diego, California. Judge Ronald Prager changed the way the voluminous paper in tobacco cases was overwhelming the bar and clerk by mandating electronic filing.
San Francisco, California. Judge Stuart Pollack sought a better way to deal with the overwhelming paper from complex litigation and became an advocate of electronic filing by adopting a project in 1999.
Colorado. The Colorado Supreme Court saw electronic filing as a leadership issue and Chief Justice Mary Mullarkey and Justice Alex Martinez established the first statewide electronic filing project. The Judicial conference supported the Supreme Court through its strong technology committee, led by Judge William West.
Washington, D.C. Judge Herbert Dixon, Superior Court, led the way aided by Chief Judge Rufus King and Judge Brooke Hedge, who chairs the Technology Committee. Judge Dixon in particular eased the nervousness of clerks and lawyers by assuring them that they would have input in the project. Judge Dixon said, “We believe e-filing will become a normal, typical and regular part of litigation in the near future. I firmly believe there will be e-filing on a substantial basis in future years.”
Duval County (Jacksonville), Florida. Chief Judge Donald Moran became the first Judge to order electronic filing in Florida. Being the first required a willingness to take risk, but the acting on the conviction that there had to be a better way.
Baltimore, Maryland, Chief Administrative Judge Ellen Heller led the way and was aided by Judge William Quarles and Judge Richard Rombro. Judge Heller said, “Now, we will be able to put order in the voluminous paper associated with the filings. There is too much paper associated with the law, and this is the first step in bringing that under control.” The manual filing of cases is “antiquated, absurd and an anachronism”, according to Judge Heller.

RESOLVE is the one common characteristic of these champions of change. Each Judge knew there would be obstacles to overcome yet they faced a broken way of doing business in their court, which needed to be dramatically improved for the publics benefit.

SIGNATURES

“How will the court authenticate a pleading?”, the clerks, court administrators and lawyers cried. While it is impossible to design a paper filing system or an electronic filing system that will be 100% effective in preventing fraud, both the paper process and the electronic process of filing court pleadings provide reasonable assurance of accuracy and authenticity. Well-identified methodology of ascertaining fraud exists. The many courts that have conducted electronic filing provide substantial evidence that the authenticity of the identity of the creator and signer of an electronically filed document exceed those in the paper process.

CARE, CUSTODY AND CONTROL OF RECORDS

Does the Clerk lose care custody and control of electronic records? Meeting Constitutional and legal requirements is a legitimate issue when court managers and clerks consider an electronic filing project. Many courts are successfully meeting record keeping requirements by maintaining multiple and redundant electronic copies of the pleadings. One file is kept on the premises of the court as an archival file while another copy is maintained in a commercially superior fashion to allow the court, the parties and the public have fast, efficient and secure access to a “use” copy. Colorado has demonstrated to the legal community that technology was an asset in addressing the issue of record keeping.

MANDATORY V. PERMISSIVE

If all filings are not electronic how does the clerk keep a complete file? Does the clerk have to maintain a paper file and an electronic file? These issues can seem overwhelming at first, however, there are several approaches evolving. The obvious solution is for the court to mandate electronic filing- the public being accommodated at public access terminal in the courthouse. This solution seems to have acceptable application to large complex cases as studies are demonstrating that it is less expensive to file electronically then in paper. Another solution is to integrate an imaging system with the electronic filing system. While this is an expensive approach it holds out the promise of the best path to an electronic case file. Early experiments, such as the one to begin shortly in Chelean County, Washington are being watched closely.

COST

Technology is expensive and courts traditionally do not have the ability to persuade budget authorities to increase technology expenditures. In order to undertake the development and maintence of an electronic filing project a court needs to purchase software, hardware and pay for project administration and change management. One method, which has helped overcome this obstacle, is the public-private partnership. By employing a public-private partnership the court, has the opportunity to obtain leading edge technology, without the expense of developing and maintaining the technology-typically areas, which are beyond a courts core competency.

CONCLUSION

As more courts experiment with electronic filing the evidence is accumulating that barriers are successfully overcome. The lesson learned is clear-do not wait until all the solutions are known, but start with small projects, which allow for the demonstration of small “chunks of success” Success breeds success.

This article first appeared in e-File Report, Glasser Legal Works, August , 2001

Issue 6.5 Electroninc Filing in Baltimore, Maryland and Washington, D.C

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VirtualCourthouse ; Issue 6.5
Electroninc Filing in Baltimore, Maryland and Washington, D.C

Judge Arthur M. Monty Ahalt (Ret.) July 2001
On May 1, 2001–National Law Day–Washington, D.C.’s Superior Court launched an electronic filing pilot project. The project culminated a six-year effort by the Superior Court, which has one of the highest per capita caseloads in the country, to introduce an e-filing service for its “Civil One Division” cases, aiming to streamline the complex civil litigation that fills that division’s docket. The pilot, which will run for one year, requires that the attorneys in the six hundred or so cases assigned to that court file only electronically. If the pilot is successful, e-filing will be extended to other civil matters.
On June 14, 2001 The Circuit Court for Baltimore City launched an electronic filing project for 20,000+ asbestos cases. This effort also culminated 5 years of planning by the court and the asbestos bar. The pilot will run for 2 years in accordance with an Order signed by Chief Judge Robert M. Bell approving the project pursuant to Maryland Rule 16-307.
Baltimore-Washington Regional Filing
Thus, the Baltimore ¬ Washington region became the first state court regional approach to electronic filing of court documents. Significantly, 75% of the lawyers who file in the Washington, D.C. Superior Court electronic filing cases also file in the Baltimore City Circuit Court electronic filing cases. The same percentage is true for the lawyers who file in the Baltimore City Circuit Court. This means that a lawyer will be filing and accessing the case file the same way in two independent courts in different states ¬ a national first.
The Washington, D.C. Superior Court’s e-filing efforts began in 1995, when the Technology Committee for the Superior Court, headed by Judge Rufus King, who is now chief judge, visited neighboring Prince George’s County, Maryland. The Circuit Court there had initiated the first national electronic filing pilot project in partnership with the National Center for State Courts and Andersen Consulting (now Accenture). The pilot, known as JusticeLink, was the first effort to test the concept of electronic filing. The final report on that pilot is posted online at http://www.ncsc.dni.us/NCSC/TIS/TIS99/electr99/JusticeLink/JUSTCOVER.HTM .
At about the same time, Judge Herbert Dixon, chair of the sub-committee for e-filing for D.C.’s Superior Court, attended a national court technology conference, where he participated in an electronic filing educational program.
The members of the committee began to explore a variety of implementation strategies. The committee decided early on that it required the expertise of an Internet-orientated technology company and that entering into a public ¬ private partnership would enhance the court’s success. The court selected CourtLink, the successor to JusticeLink.see http://www.courtlink.com.
The Baltimore City Circuit Court began discussing the necessity for electronic filing to solve the overwhelming paper problems in asbestos litigation in 1996 under the leadership of Administrative Judge Joseph Kaplan and Judge Edward Angeletti. Current Administrative Judge Ellen Heller and Judge William Quarles followed their efforts. Like Washington, the Baltimore bench saw the Prince George’s court electronic filing pilot as a way to better manage a paper intensive docket and ultimately selected CourtLink, the successor to JusticeLink.
A CourtLink team consisting of Marsha Edwards, Michael Dunn, Jehanne Edwards and Kendall Smith managed both the D.C. Superior Court and Baltimore Circuit Court implementations. The implementation team employed a five-step process:
Rallying the Leadership-Judges Must Lead the Way. Managing change is the most critical element for a successful electronic filing project, and judicial leadership is key to that success. The Superior Court project was led by Chief Judge Rufus King, aided by the dogged persistence of both Judge Herbert Dixon and Judge Brooke Hedge, who chairs the Technology Committee. Judge Dixon in particular eased the nervousness of clerks and lawyers by assuring them that they would have input in the project. Judge Dixon said, “We believe e-filing will become a normal, typical and regular part of litigation in the near future. I firmly believe there will be e-filing on a substantial basis in future years.”
In Baltimore it was Judges Kaplan, Angeletti, Heller and Quarles who led the charge. Judge Heller said, “Now, we will be able to put order in the voluminous paper associated with the filings. There is too much paper associated with the law, and this is the first step in bringing that under control.” The manual filing of cases is “antiquated, absurd and an anachronism”, according to Judge Heller.
Judge Quarles said, “We are happy to see e-filing becoming a reality at Baltimore City Circuit Court, it marks the culmination of a lot of hard work on the part of attorneys, clerk’s office personnel, the vendor and judges. We look forward to the time in the near future when we can demonstrate the benefits of e-filing for a variety of types of litigation. The future is now.”
But, leadership from the bar is equally important. Maryland lawyer John Nagle not only led the way by coordinating the lawyers, but also became an agent of change. John spent countless hours as he eased the skepticism and nervousness of his colleagues and presented the persuasive case for the benefits of change at countless bar association meetings.
Assessing Requirements. The CourtLink team worked with the court to identify potential e-filing cases; evaluate available hardware; identify necessary court personnel and procedures; establish the applicability of local court rules; and to determine the availability of case management data. The team also began a survey of potential e-filing law firms, and assessed the status of the law firm’s hardware and Internet connectivity capacity. The CourtLink team also gathered necessary case data and required product features.
Preparing an Implementation Plan: The court and CourtLink developed a project schedule, which contained a detailed case management order the court proposed using to implement e-filing in selected cases.
Verifying Participation and Training. After identifying all lawyers in the selected cases, CourtLink mailed to each lawyer and firm the Court case management order and detailed instructions outlining the sign-up procedure and training schedule. Finally, CourtLink conducted in-person as well as Web-based, interactive training sessions for the lawyers and firm staff, as well as for judges and court personnel.
Marketing. As public opinion is key to ensure the success of the e-filing pilot, publicizing the project was critical. Before the May 1st Washington launch date, the CourtLink marketing team sent to all participating lawyers three separate communications. Judge Dixon and Craig Husa, senior vice president for Court Services at CourtLink Corp., participated in an eFile panel discussion at the annual District of Columbia Bar Association meeting. Media outreach was conducted to educate the community. In addition, “Ask me about eFile” buttons were created and distributed to the courthouse community. Finally, on May 1st, a roundtable breakfast discussion was held. Roundtable panelists included Chief Judge Rufus King, Judge Herbert Dixon, Judge Brooke Hedge, CourtLink CEO Henry Givray and Technology Consultant James I. Keane.
Before the June 14th Baltimore launch the marketing effort was repeated. Judge Heller participated in an e-file panel discussion at the Maryland Bar Association Annual Meeting in Ocean City, Maryland.
Mandatory v. Permissive Filing
Key to the project is the commitment and determination of the D.C. Superior Court to make electronic filing mandatory across a breadth of cases. If everyone participated in the process, greater experience would be gained, which would lead to the establishment of the best future practices for e-filing litigants.
The issue of mandatory versus permissive use is ever-present in modeling a successful e-filing project. And there are arguments on both sides. However, a compelling factor is getting enough initial activity to make reasonable decisions about the future, and to overcome resistance to change. In fact, almost all pleading rules are mandatory. Quite a few years ago, the rules committees of most courts passed mandatory rules requiring the size of the paper to be reduced from legal to letter size–a major economic impact on lawyers, but a considerable cost saving to courts. The savings which electronic filing can bring to the courts are far greater than the savings brought about by a reduction in the size of paper.
While some may view the cost of electronic filing as an added cost, it is difficult to make a persuasive argument that e filing costs more than paper, ink, postage and delivery service. CourtLink charges 10 cents per page – a minimum of $2 per filing and the same for service. A party can, alternatively, be given a courtesy notification for 50 cents. There are no sign up fees, no monthly minimums or fixed fees. Fees are based on the number and size of transactions. (A transaction is simply defined as filing or serving a package of electronic documents to one or more parties.) The cost of a single 15-page document, served on 20 parties (300 pages, total) would be $32.00
Fee Calculation:
10¢ x 15 pages to court = $ 2.00 min [$1.50] 10¢ x 300 pages to parties = 30.00
Total = $32.00
A wise man once said, “Leadership is getting people to do what they do not want to do. Great Leadership is making people excited about doing what they do not want to do”. The Judicial Leadership of the D.C. Superior Court and the Baltimore City Circuit Court are clearly demonstrating Great Leadership.
Judge Herbert B. Dixon, Jr., Presiding Judge, Civil and Multi Door Divisions, said, “The six hundred initial cases in this electronic filing pilot project will give us tremendous e-filing experience with cases in nearly every stage of litigation ¬ from initial discovery, to final motions, pretrial and trial. We are looking at this opportunity in much the same way that colonial frontiersmen saw their exploratory travels to the West. We know there will be mountains to climb and uncharted territory to conquer ¬ but we know also that e filing is the future, merely awaiting our first steps in that direction. The experience gained during this project will test our initial polices and protocols, cause revisions, and will go a long ways towards our effort to establish the best future practices for e-filing litigants.”
CONSENT COURT
While lawyers may have the opportunity to file pleadings electronically in Baltimore and Washington, what does the bar do while waiting for electronic filing to be adopted in the other courts in Baltimore-Washington region? Recently, CourtLink surveyed its e-filing statistics and some of its national users and discovered that less that 25% of electronic transactions were as a result of electronic filing with the court ¬ the other 75% were created by service and notifications. What has become apparent-surprising some- is that the important value (to the lawyer) of electronic filing is the access to all of the pleadings in a case 24 hours a day 7 days a week-a complete electronic case file. A lawyer no longer needs to spend precious time chasing a paper file. Chasing the paper is an event of the past.

Issue 6.3 A Vision Supporting Multiple Providers of Electronic Filing to Multiple Courts

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VirtualCourthouse: Issue 6.3
A Vision Supporting Multiple Providers of Electronic Filing to Multiple Courts

 Judge Arthur M. Monty Ahalt (Ret.) – March 2001


As electronic filing of court documents moves from the pioneers to large-scale adoption, it has become clear the task is much larger than first imagined. The pioneers have experimented with the technology and the market over the last 8 years, and to date less than 1% of court documents are electronically filed. As the pioneers have experimented, several models have evolved:
• Closed systems – the individual filing must comply with the requirements of one provider, regardless if the provider is public or private. Such systems typically require specialized software.
• Internet systems – the individual filing does not require specialized software rather an Internet connected computer equipped with a Web browser.
Further delineation may also be made with respect to who is managing and supporting the process:
• Public systems – those designed, managed, supported and maintained by a governmental agency.
• Private systems – those designed, managed, supported and maintained by a private non-governmental agency. Such systems must ultimately interface with the public systems of the courts
While each approach has its advantages none of these models have proven effective in creating the volume of electronic filing necessary to create the productivity savings, which dramatically improve the administration of justice. Underlying the debate of the most appropriate method to create a significant critical mass is the issue of how a court will be best able to manage and control the workflow of electronically filed documents. Those on the private side argue the Court controls the electronic documents by contract, not possession. Those on the public side argue the Court cannot adequately discharge its governmental function unless the Court has physical control of the electronic documents.
MULTIPLE PROVIDERS-MULTIPLE COURTS
What is needed is an approach, which encourages a variety of models – both public and private – for the electronic filing of court documents. This in part has been the motivation behind Legal XML discussions and projects. To proponents of XML, the use of this technology will deliver open systems to the Justice Community. This notion however ignores three real compelling factors. First; XML is an approach using the Internet for easier data integration between applications and organizations – a common language that helps to define and resolve differences among dissimilar data structures. That said, XML is not an application that can help courts receive, process, interact with, manage and ultimately transfer and integrate the incoming data to its backend systems. Rather XML is simply a methodology to describe data in a standard, non-application specific manner. Second; XML does not deal with the issues of marketing, education and support in order to drive adoption and motivate the legal community to integrate electronic filing into their existing work and business processes. Third; XML does not answer the question of who pays for and supports the administration of systems that will monitor the electronic transactions from multiple and diverse public and private providers.
Defining a standard for the data contained in a document is an essential first step in formulating an open electronic filing process. However, since there are hundreds (if not thousands) of specialized court systems that house this data, there is a real requirement that each of these systems be modified (or new systems created) to receive the data. The process will only move as quickly as money and programming resources allow for each court system to make the necessary changes. If an entity were to take on the daunting task of creating the necessary specialized software interface required by each court system, then any individual filer, e-filing software vendor or public agency could simply submit the filing in a clearly defined format. Software of this type is known as “middleware”. E-filing middleware presents a standardized input methodology and contains the necessary specialized code to prepare and submit incoming data in a form required by each specialized court case management system.
THE VISION
It is this expertise, which CourtLink Corp. (1) has introduced into the market via its JusticeLink middleware product named eFM. eFM offers the following functionality:
§ Front-end XML transaction connectivity.
The software(Application Interface-API) is written to read and write XML transactions to generic front-end systems. The format is open, (XML Filing Protocol, a.k.a. “XFP”), and is very similar to the LegalXML Court Filing Standard 1.0 (CFS 1.0) (2).
CourtLink is committed to adding support for the CFS 1.0 as soon as practical after its formal approval as a recommended standard. CourtLink’s middleware approach anticipates the need to support multiple versions of multiple standards simultaneously in the future.
§ CMS Back-end XML transaction connectivity.
The transactions required for use in the CMS are supported by XML transactions between eFM and the CMS. CourtLink refers to this as a “CMS Adapter”. The only released adapter as of 10/31/2000 is for SCT Courts version 3.1. (3)
§ DMS/IMS Back-end XML transaction connectivity.
eFM supports an integrated DMS interface to FileNET and OTG image management systems, allowing for the documents transmitted to eFM to be written to the DMS.
§ Court Clerk functionality.
In order to file at any specific eFM-enabled court, a user must be ‘registered’ with the court. This is accomplished via a ‘registration’ XML transaction that can be generated by the eFILE provider. EFM supports multiple eFILE providers simultaneously, and a filer (attorney) may use more than one eFILE provider with the same court, if desired. Additionally all ‘submissions’ are available to the clerks for review, (and appropriate changes), before docketing and commitment to the DMS. eFM provides a robust set of capabilities to assist the clerk with processing filings in a fast, accurate fashion.
§ Automated Electronic Receipt/Face sheet
An electronic face sheet is automatically prepared by eFM and pre-pended to the filing. A copy is also returned as part of the XML receipt to the electronic filing system. All filings (original and subsequent) are manipulated by the clerk in eFM. All acceptance, rejection, changing of data, adding parties, fee control, document hierarchy manipulation, etc., is accomplished through the eFM provided web interface.
CourtLink’s eFM solution accepts filings from multiple e-filing providers and contains the necessary procedures to integrate with any court case management system, once the appropriate adapter has been created (4)
. A court using this approach will be able to accept e-filings in accordance with it’s own local protocol, from multiple private providers, such as CourtLink, Westfile, and any other provider. This approach allows the Court to attract the greatest number of electronic documents. The court is free to elect to physically control and manage its electronic documents or to contract with a service provider to perform this function for the court. Thus providing for the greatest possible number of users – allows for the application of the highest common denominator rather than the lowest common denominator.
THE WISDOM OF OPEN SYSTEMS
Instruction for the wisdom of a policy such as this can be drawn for the experience of opening up the Internet and the consequential explosion in its use. The Internet began as a private government-only network, which served the scientific and educational community under the auspices of the National Science Foundation. At the urging of the business community the National Science Foundation began to open up its network to commercial users and then in 1992 Rep. Rick Boucher (D- VA) introduced legislation declaring the Internet open to public competition. The NSF backbone was retired as a not-for-profit entity and was replaced by system of commercial network access points connected to one another. As the government no longer needed to spend scarce resources supporting the Internet, use of the Internet and subsequently the World Wide Web, has grown exponentially. This should be a valuable and instructive lesson for courts desiring to dramatically increase public access and create vast productivity and efficiency gains in the administration of justice.

1 See http://www.courtlink.com

2 LegalXML donated significant parts of the XFP protocol to the public domain for use. These pre-date the LegalXML v1.0 proposed standard.

3 EFM Adapter for SCT Courts 4.0 is scheduled to be released in mid-2001. Other adapters are in development, and the adapter “API” will also be published in approximately the same timeframe.
4 CourtLink can also implement eFile with courts that are not ready for integration, and/or where an adapter is not available. The company has a multi-tier service offering that the court can use to “phase in” deep integration.

Issue 6.2 Five Commandments of a Trial Lawyer

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VirtualCourthouse; Issue 6.2
Five Commandments of a Trial Lawyer

Judge Arthur M. Monty Ahalt (Ret.) – February 2001

Last fall (October 2000) the District of Columbia Trial Lawyers Association invited me to speak at their regular monthly meeting as a retired Judge, I was ask to be open and frank in commenting on how trial lawyers could improve their performance in front of a judge and a jury. The theory was that I as a retired Judge would have a greater liberty in speaking the truth undeterred by the notion that a lawyer in the audience might be appearing in front of me the next day. In reflecting on my 17 plus years on the bench — some 750 jury trials and countless motions hearings and court trials — it became obvious that most of the dos and don’ts of persuasion could be summarized in five points which I have titled the Five Commandments of a Trial Lawyer.

Rather then allowing a negative impression to control the thought process, I put the commandments in not only in the negative -Thou Shall Not, but also the affirmative – Thou Shall.
Overriding these five commandments is the principle, rule and law of First Impressions. Most every thing we do in life is affected by this principle. The principle recognizes the importance of our ability to record and remember prior occurrences. This historical memory has an impact on our future actions – for better or worse. For the trial lawyer as for any sales person this can be critical. A Judge or a jury will be affected by their first impressions of a lawyer. It is important to recognize that first impressions do no just begin in the courtroom. They start with the first interaction whether that be, a letter, a pleading, a telephone call, a social event, a parking lot occurrence, an interaction with court staff, or the opening statement. Now, most Judges and for that matter jurors desire to be fair so they naturally try to protect against first impressions being controlling. However when a pattern starts to show itself there is no turning back the powerful implications of this law of human nature.
I. THOU SHALL NOT BE A PRESENTER . . .
. . . THOU SHALL BE A 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 weeklong 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. For a more complete treatment of this commandment see VirtualCourthouse Issue 4:6, June 1999 .
II. THOU SHALL NOT VERBALLY FIGHT . . .
. . . THOU SHALL TREAT EVERONE FAIRLY

Key to being a persuasive individual is to be viewed by the decision maker as a fair individual. There is nothing more detracting from the logical thought process as a verbal fistfight. A lawyer who gets in verbal fistfights on frequent occasions simply is not believable to a Judge or Jury. This dynamic may not apply to the occasional battles usually attributed to the frustrations of trial work. It is the frequent pattern that exists with some advocates, which cause a judge to ignore the persuasiveness of the lawyer. Picture yourself being the judge assigned discovery motions. You see this one particular lawyer have a verbal fight every week. Why would you put any weight in what that lawyer had to say about any given point? I must say that it is a constant battle for a Judge to divorce the annoying and distracting tendencies of lawyers from the clients right to have a fair trial, but in the final analysis it is the client who chose the lawyer and is therefore going to be affected by the good traits as well as the bad traits of the individual lawyer.
III. THOU SHALL NOT CITE AN UNREAD CASE . . .
. . . THOU SHALL BE A STUDENT OF THE LAW
The sloppiness with regard to legal research and citations is unbelievably frequent. It is a rare that a lawyer’s word on the law can be trusted, not because of purposeful misleading statements, but simply sloppiness. This is perhaps the most single important attribute of a trial lawyer—believability on the law. Sadly, very few lawyers possess this attribute. Lead a judge astray on the law-on purpose or by neglect – results in never being able to win an important point of law in a real important case. It is as if lawyers have not read the rules of professional conduct.
Rule 3.3. Candor toward the tribunal.

(a) A lawyer shall not knowingly:.

(1) make a false statement of material fact or law to a tribunal;. …..

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
And the comments to the rule state:
Misleading legal argument. — Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a) (3), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.
See Maryland Rules of Professional Conduct, Rule 3.3.
To make sure you do not fall into this category you need to become a student of the law.
IV. THOU SHALL NOT BE SLOPPY . . .
. . . THOU SHALL ALWAYS DRESS PROFESSIONALLY
Ah- the age of the Internet. Casual is better and besides that it is more comfortable. But casual versus formal is only half of the question. A sloppy lawyer is not a persuasive lawyer whether it is the dress, the organization of the pleadings, and the use of the counsel table in the courtroom or the car, which jurors see in the parking lot. Of course part of the problem is generational. I remember my parents complaining about my dress. How could I wear blue jeans on a Saturday night – they wanted to know. I also remember that the top-notch winners always looked like a million dollars and usually were paid a million dollars. My father -in law Blair Smith, a former States Attorney, and a superior trial lawyer, was known for his superior dress and his winning way in the courtroom. He would walk into a room with the Governor and people would want to know who was with Blair. The point is -your dress does make a big difference as well as your general organization. The better you dress the better you perform and the more persuasive you are with jury, judge and client. The more cases you will also win.
V. THOU SHALT NOT TRY TO SELL AN UN-SELLABLE POINT . . .
. . . THOU SHALL PICK ISSUES STRATEGALLY
This last commandment could be the sleeper and the most important. Oh – the agile mind of the lawyer. Give a lawyer enough time and how many issues can he come up with. Sometimes it seems endless. Put three partners in a room and more than the power of three compounds the problem. And then there is the shot-gun approach. Rarely does this approach help achieve a win. In fact the approach usually results in the judge or jury not taking any one issue seriously. A top 20% lawyer will pick the two or three most important issues and keep hammering them home. Even though unpersuasive in the present case the lawyer’s credibility is preserved for the next case.There is an art to making points for the purpose of preserving the rights of your client.The point is that you do not have to spend any time talking about them once they are preserved.
CONCLUSION
I am confident that if you follow these five commandments that you will start achieving greater results in the courtroom and then more clients will be knocking at your door.

Issue 6.1 Open Access to Court Records

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VirtualCourthouse: Issue 6.1
Open Access to Court Records

Judge Arthur M. Monty Ahalt (Ret.) – January 2001

As we enter the second or first year-depending on who is counting- of a new Millennium the promise of the Information Age some times runs into a whirlwind of fear. Such is the case with electronic access to court records. Privacy advocates across this nation are turning up the volume of rhetoric and causing policy makers to take a closer look at determining the best public policy for electronic access to court records. In Maryland an Ad Hoc Committee on Court Records of the Administrative Office of Courts has issued a draft policy on dissemination of court records, which dramatically curtails the public’s current electronic access to court records. Some would maintain, however, that the Information Age provides the courts with a historic opportunity to provide the public with more information rather than less information. It seems obvious that openness increases confidence while secretiveness decreases confidence. At the heart of establishing policy for public access to court records is the delicate balance between the public’s right to know of public adjudications and the rights of the involved individuals to keep the public resolution of the dispute private. Currently, in Maryland state courts, there exist three methods by which the public may electronically access court records. The Judicial Information Systems (JIS) allows the public to access, by virtue of a subscription agreement, court records in the Maryland District Courts, the Circuit Courts for Baltimore City, Anne Arundel County, Carroll County, and courts which use the Uniform Court System case management system. A subscriber is permitted to query the courts database by name and case number. The Circuit Court for Montgomery County also maintains a service for access to its database. In both cases governmental units of either the Judicial Branch of Government or the County Government administer the services. In Prince George’s County the public is provided electronic access to the civil and criminal court records of the Circuit Court for Prince George’s County through a subscription service administered by CourtLink by virtue of an agreement with the Prince George’s County Government. Additionally the Federal Courts provide electronic public access to criminal and civil court records. With relatively few exceptions these programs have provided thousands of members of the community with electronic access to criminal and civil court records in an effective, inexpensive and efficient fashion. In addition the public has been saved thousands of dollars as the necessary travel to a court has been eliminated. THE LAW Generally the law and sound public policy favor a long-standing tradition of open trials. (1) This right is especially true when it is applied to criminal trials. The Supreme Court has stated, “A trial is a public event. What transpires in a courtroom is public property” (2). It is difficult to logically construct an argument that would make the court records of that “public trial” unavailable to the public unless there was a significant and compelling public policy need to do so. The public’s right to court records is therefore derivative of the “public trial” element of dispute resolution as opposed to state or federal public information statues. As the public deals with substantial issues concerning the public trust and confidence of the courts, it would be a step backwards to curtail rather than advance the public’s access to information concerning an otherwise open public proceeding. Moreover, if the records are available only upon a personal visit to the courthouse, the records are expensive and the public’s access to courts is frustrated. Open access to courts and information contained in court records should be distinguished from “freedom of information” requests and government compilations of data such as criminal “rap sheets”. The Supreme Court’s decision in the Reporters Committee (3) case does not create a privacy interest in the underlying court records of a criminal case. It only protects a privacy interest in a “rap sheet” of an individual when the government is in control of a compilation of information from many underlying sources some of which may have been otherwise public criminal prosecutions. This distinguishing element is evidenced by the fact that the Federal Courts make criminal case records available by electronic access through PACER and private information providers such as CourtLink. As was pointed out in the Reporters Committee case, most states place substantial restrictions on the availability of criminal history summaries (4) ; nonetheless, 85% of the court systems accessible through CourtLink make information available about criminal cases. (5) CLASSES OF COURT RECORDS It is important to focus on what information is electronically available today as opposed to what might be available in future years. A court file contains various levels of information. First the file contains a docket of information. This docket is basically an index of the file, which identifies the parties, type of case and a summary statement of each document. The docket is commonly referred to as the court “record”. Within each file there are also pleadings, which are documents, required to be filed by rule of court delineating a parties written case. Within pleadings there are exhibits, which support a parties case or sometimes provide information to the court from third parties. Currently, the only information kept by the court electronically are the court “records”. Pleadings and exhibits do not exist in electronic format and are therefore unavailable to the public electronically. PUBLIC’S LEGITIMATE NEED FOR COURT RECORDS The public has many legitimate needs for court information, including attorneys, law enforcement agents, private investigators, insurance companies, title insurers, the media, financial institutions, securities firms, tenant screening and employment screening companies which use the service to find information critically important for their work. In a recent survey of Public Attitudes Toward Uses of Criminal History Information (6) it was concluded that, ” there is substantial public support for making certain types of justice records available outside of the criminal justice system when there is a perceived rationale of public benefit and/or safety.” In today’s mobile society, it is common for citizens to move freely across state and county lines to conduct their business and personal affairs. The regional, and often national, nature of such activity highlights the need of individuals and businesses to have the ability to search the court records throughout the country. One illustrative case is that of Shawn C. Lowrance, an adopted 10 year-old child who drowned in October 1999. One of several articles published about this case in The News Tribune of Tacoma, Washington, described the facts concerning the adoptive parents: “As reported in The News Tribune, the couple had a troubled financial past, including two bankruptcy filings and the loss of their Lacey home to forestall a foreclosure. Criminal investigators became suspicious about [Shawn Lowrance]’s death when they learned the couple tried to collect a $650,000 in life insurance they took out on Shawn within a year of his death. An online search would have also turned another equally disturbing “red flag” – the 1993 arrest of the adoptive mother on suspicion of assault against her husband, Shawn’s adoptive father. The couple didn’t mention the incident while undergoing the adoption process. A Washington State Patrol background check turned up nothing because, unlike the online service [CourtLink], the State Patrol doesn’t disseminate arrest records.” (7) Had the adoption agency made an electronic search of court records prior to Shawn’s adoption, it might have made all the difference for him. In fact, in the thirteen-page report of an independent investigation into the adoption, the six-member panel recommended that the Washington Department of Social and Health Services consider using CourtLink. It is common for law enforcement agencies to have criminal record information about witnesses while defense investigators and attorneys cannot obtain the same information unless they physically search each court record. The same is true for parties in civil litigation who desire to determine if a witness has a prior criminal record that would affect their credibility. The inability to find relevant information frustrates the “search for truth” and, ultimately, a just result. EFFICIENCY OF ACCESS Underlying much of the discussion concerning the public’s trust and confidence in courts are the inefficiencies of the courts, which are directly related to a dependency on paper based work processes. It is also impossible for the many courts of the Baltimore-Washington region to make records available in one central location. A member of the public is therefore required to make a physical trip to the courthouse for information that is needed and available at the clerk’s counter. Thus, there is a public need for commercial enterprises to provide information from courts in multiple states or regions through one system. Clerks’ offices, Judges’ chambers, and other judicial offices are not adequately staffed to handle the numerous requests for information; consequently the staff is frustrated from accomplishing its mission of dispute resolution, and the public is frustrated by having to spend more time and money to get the information needed to make legitimate business and personal decisions. Often citizens make decisions ” in the dark” because they do not have the time or resources to search numerous court records. Facilitating and allowing responsible commercial enterprises to electronically access court records enhances the ability of the court to concentrate on its mission of dispute resolution and allows the public to access needed information at a lower cost. One such commercial enterprise is CourtLink the nation’s leading provider of electronic public access to court records – an Internet pathway to and from the our country’s courts. CourtLink has been providing electronic public access to court records since 1991. It currently provides access to over 1100 courts nationwide, including over 90% of the federal courts, and state courts in Washington, Oregon, New York, New Jersey, North Carolina, California, Texas and Maryland, among others. (8) Between January 1999 and October 2000, CourtLink’s customers, who include law firms, corporations, financial institutions, government agencies and investigative firms, electronically accessed court records over 1.2 million times. CourtLink’s over 30,000 customers include 90% of the top 250 law firms in the United States. In the Baltimore-Washington region, CourtLink provides electronic access to the U.S. District and Bankruptcy Courts in Delaware, Pennsylvania, Maryland, Washington, Virginia and West Virginia, and state courts in Delaware, Pennsylvania, Maryland and Virginia. Currently CourtLink has electronic access agreements in place for state courts that serve nearly 50% of the U.S. population. CourtLink’s mission is to provide the public with better access to the nation’s courts, while complying with legitimate determinations as to what information is public. OTHER APPROACHES Recently the National Center for State Courts conducted the Electronic Filing- Privacy & Public Access Conference 2000 in Las Vegas, Nevada. Over 300 judges and court managers were in attendance. (9) It is clear that the National Center for State Courts recommends that ” all records and court data should be open for public review and access” absent a ” clear showing of countervailing public policy or public individual harm.” Of particular note is Vermont’s recently concluded study of public access to court documents and adopted rules for public access to court records. Justice John A. Dooley of the Vermont Supreme Court addressed the conference to provide the benefit of that state court’s recent experience. His advice was that policy decisions concerning access to court records should be an inclusive process. The Vermont study committee, for instance, had more non-lawyers and judges, including representatives from the media (print, radio, television), business and the other branches of government. Justice Dooley also made the following points:

  • Electronic access is a trap – the issue is public access.
  • Technology is more of help than a problem.
  • The job is never done- there needs to be a continual assessment of evolving technology.
  • The clear evolving national consensus is that Internet technology is providing the public with greater access to courts inexpensively and with virtually no harm. Thus, More Access is better than restricted access.
  • The public has legitimate need for court records.
  •  Technology can provide the pubic with court records more efficiently and at a lower cost.
  • Restricting public access to court information is not necessary to protect the public from misuse, as other effective alternative methods exist. ALTERNATIVE METHODS OF PROTECTING PUBLIC POLICY INTERESTS .

There are many significant public policy interests, which need to be considered and protected. Some are already protected by statute and appropriate legislative bodies will consider more. Indeed, there are some in our society who would misuse information contained in court records. The remedy to protect the public, however, should not be to reduce access to public information when effective alternative methods exist. For instance, laws that prohibit harmful activity, such as criminal record profiling, and by punishing harmful conduct, can protect the public. Such was the approach of Congress when it enacted the Fair Credit Reporting Act. In addition a subscription agreement to access the records can be required to contain a provision against use of the information for prohibited purposes.

This article first appeared on pro2net.com- www.pro2net.com

1 Privacy and Public Access to Court Records by Susan M. Jennen, National Center for State Courts Research Division, 1995 (an updated publication is scheduled for release in December 2000).

2 Richmond Newspapers, Inc v. Virginia, 448 U.S. 555,573 (1980)

3 United States Department of Justice et al. v. Reporters Committee For Freedom of the Press et al. 489 U.S. 749; 109 S. Ct. 1468 (1989)

4 Id at 753

5 See complete list at www.courtlink.com

6 Public Attitudes Toward Uses of Criminal History Information, Bureau of Justice Statistics, U.S. Department of Justice and SEARCH, The National Consortium for Justice Information and Statistics, May, 2000

7 “DSHS must make adoptions safer”, The News Tribune, Tacoma, WA, June 28, 2000

8 See complete list at www.courtlink.com .

9 http://ctl.ncsc.dni.us/PublicAccess/E-FilingConf.htm . The national Center also maintains a Public Access to Records Web Site athttp://ctl.ncsc.dni.us/PublicAccess/