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Issue 5.5 ELECTRONIC SIGNATURES FOR COURT DOCUMENTS

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VirtualCourthouse Issue 5.5  ELECTRONIC SIGNATURES FOR COURT DOCUMENTS

By

Judge Arthur M. Monty Ahalt (Ret.)

With the advent of electronic filing of court documents in the early 1990s many issues were originally thought to be significant impediments. Chief among those issues was the requirement that court documents contain signatures and that there were very few methods of securing a document much less a signature. Many who were resisting change made an argument against electronic filing based upon electronic systems’ inability to make a signature secure.

EARLY EXPERIMENTS

The first electronic filing projects addressed this problem by being closed dial-up (non- Internet) systems, which were managed through proprietary structures. CLAD the electronic filing system first used by Lexis-Nexis in Wilmington, Delaware and JusticeLINK, in Prince George’s County, Maryland both addressed the issue through the use of a password authentication protocol. The protocol required a subscriber to sign a subscription agreement, which triggered the issuance of a password to the subscriber. Both the court and the private company kept a log of each password and subscriber. Since the systems were closed proprietary (non-Internet), security issues concerning the identity of an individual making a filing and the authenticity of the document itself were minimized and managed successfully. For a more complete listing of articles concerning digital signatures see DIGITAL SIGNATURES.

As the legal community started to explore the types of technology that would be the greatest help to overcoming security issues presented by open Internet systems, it became obvious that many of the solutions were extremely expensive. Additionally, many required a certificate authority to maintain a secure list of electronic signatures. It became apparent that there would be competition among stakeholders to become the certificate authority. Would it be the bar association, the court of appeals, the secretary of state, and who would mediate the process to get one national or international certificate authority which would prevent having to deal with multiple certificate authorities?

As this debate continued many clerks, judges and court administrators started to examine more closely the actual paper process in order to better design a secure electronic process that could be used by attorneys from international firms as well as pro se filers. What they discovered was that there does not exist a standard means for authenticating documents or signatures in the paper process. No clerk or judge checks or authenticates a signature in the paper world. See Electronic Court Documents

It is important to recognize at the outset that there are several different security and authenticity issues associated with filing and storing documents. First is the issue of the authenticity of the signature: how is it that the creator of the document and the one who vouches for its truthfulness and accuracy can be accurately identified? Second, is the issue of the authenticity of the document itself: how can there be an assurance that the document cannot be changed or tampered? This article will analyze the first issue. The second issue has been fairly well answered by the use of SSL Internet technology and PDF formatting, both of which have been relatively well accepted and are not very expensive. Secure socket layer (SSL) technology serves as a means of encrypting data sent from the user’s site to the browser. If the message sent is tampered, when it reaches the browser, it will not be readable . Portable document format (PDF), a standard adopted and marketed by Adobe, allows for a document, once converted to the format to be incapable of alteration. The document can be accessed by using free PDF reader software.

 

PAPER PROCESS AUTHENTICATION

 

For well over 100 years the courts and clerks of this nation have received paper pleadings that have been signed by parties and their attorneys. Almost every court has rules concerning the signature and oath requirements of particular types of pleadings. See for instance Rule 11 of the Justices’ Courts’ Rules of Civil Procedure adopted by the Supreme Court of Nevada. Neither the clerk nor the court verifies or otherwise authenticates a pleading. Neither the party nor an attorney is required to show any corroborating identification. Indeed many of the pleadings are filed by regular U.S Mail, Federal Express or other delivery services. During my 35 years of experience as a trial lawyer and a Judge, I do not recall many times when a pleading was under serious challenge for the authenticity of a signature of a party or a lawyer. The absence of questions of authenticity in the paper process is attributable to a variety of factors which serve as deterrents to making fraudulent misrepresentations:

  1. A signature is capable of being identified as authentic by experts in handwriting analysis, as well as being challenged by the person whose name has been signed.
  2. The rules of court require other identifying information, such as a party’s address. The content of the pleading also reveals details about the party and his relationship to others individuals involved in the case or controversy.
  3. The opposing party acts as a rigorous check against inaccuracies in the information provided by the filing party.
  4. A party submitting a document to the court can be held in contempt for making intentional misrepresentations.
  5. The court may sanction the party by dismissing the case, not allowing documents or other evidence to be admitted, or taking other actions to dissipate the impact of the party’s fraudulent representations.
  6. Criminal laws punishing forgery and fraud deter fraudulent activity.
  7. Civil law remedies such as suits for committing fraud, or for otherwise engaging in a misuse of the judicial process, also act as deterrents.

 

 

TECHNOLOGY PROCESS AUTHENTICATION

 

The questions of whether and how technological means should be used in lieu of the paper process have forced a re-evaluation of the systems currently in place. While it is easy to discount the similarities present in the two processes, their likenesses need to be acknowledged in order to develop a more efficient legal system. In certain cases, the procedural checks present in the paper process also secure the validity of the electronic process. This is true with regards to filing pleadings electronically. Requiring an electronic signature, and identifying information decrease the likelihood that the filing party will be successful in misrepresenting a true identity. The adversarial check and the threat of being held in contempt of court or being sanctioned by the court persist as deterrents to fraud. The risk of facing criminal or civil charges for making misrepresentations or tampering with electronic documents is similarly substantial when engaging in electronic filing. Actually, when the electronic process is scrutinized the elements that are available to authenticate the creator and signer of a document are noticeably greater than in the paper process:

  1. An individual’s identity is captured when he becomes a subscriber to an electronic system. His name, address, telephone number, credit card information, financial references, e-mail address, and other identifying information become available to the proprietor of the system.
  2. Systems record and log the identity of the source of electronic access.
  3. IP (Internet protocol) addresses can be traced to points of origin.
  4. Electronic systems assign all transactions a system tracking number, which allow for the identification of specific users. Payment is verified through credit card agencies that maintain records of transactions.
  5. Credit card companies maintain internal fraud investigation units that               constantly monitor use patterns to detect the occurrence of fraudulent activity.
  6. “ Click” contract technology allows the identification of the PC from which authorization to contract has been given.
  7. The rules of court require other identifying information, such as a party’s address. The content of the pleading also reveals details about the party and his relationship to others individuals involved in the case or controversy.
  8. The opposing party acts as a rigorous check against inaccuracies in the information provided by the filing party.
  9. A party submitting a document to the court can be held in contempt for making intentional misrepresentations.
  10. The court may sanction the party by dismissing the case, not allowing documents or other evidence to be admitted, or taking other actions to dissipate the impact of the party’s fraudulent representations.
  11. Criminal laws punishing forgery, fraud, and computer tampering deter fraudulent activity.
  12. Civil law remedies such as suits for committing fraud, or for otherwise engaging in a misuse of the judicial process also act as deterrents.

CONCLUSION

 

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. Additionally, a well-identified methodology of ascertaining fraud exists. In the final analysis, there exists substantial evidence that the authenticity of the identity of the creator and signer of an electronically filed document exceed those in the paper process. In future articles, current legislation, court rules and new, evolving technology will be reviewed.

 

This article first appeared on pro2net.com- http://www.pro2net.com

 

 

Issue 5.4 VirtualCourthouse – Past, Present and Future

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VirtualCourthouse – Issue 5.4
Past, Present and Future

 

Judge Arthur M. Monty Ahalt ( Ret.) – October 2000

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

Over the past 5 years remarkable steps have been taken by the legal community to join the INFORMATION AGE. The struggle has not been easy at times mainly because of the professional necessity for stability – as the principle of stare decisis demands. Change is also difficult because so much of today’s work is dependent on yesterday’s work, which is almost always in paper form. The past keeps reminding everyone of the difficulty and the significance of the need to convert paper processes to electronic processes. During the last 12 months I have been traveling the country as Chief Industry Advisor for CourtLink and JusticeLink in an effort to help bring the INFORMATION AGE to the legal community. I have traveled over 100,000 miles, talked to lawyers, judges, clerks, administrators, law librarians and technologists in California, Washington, Oregon, Iowa, Colorado, Arizona, New Mexico, Texas, Missouri, Illinois, Indiana, Michigan, Louisiana, Pennsylvania, New Jersey, Delaware, Connecticut, New York, West Virginia, Virginia, North Carolina, Georgia, Florida, and Ohio. The amount of interest in the legal community about learning how to use technology to further each person’s mission is truly astounding. Just one small example. The National Center for State Court’s Institute for Court Management presents an annual Electronic Filing Seminar – attendance in past years was usually under 30 people. Last year they had to turn away over 100 applicants and are planning an Electronic Filing super session later this year. See. www.ncsc.dni.us/ef2000.htm . This article will address the questions: Where have we been? Where are we now? and Where are we going? PAST Where have we been? An antiquated, slow and inefficient paper process has encumbered the past. There are, however, many factors that inhibit and deter a true coordination of all of the elements necessary to allow for the virtualization of the legal profession. The people involved in the legal process and traditional legal institutions, and the types of information needed are all variables that prevent the legal world from solving its problems by electronic means. The participants (the people) in the legal process are the largest barriers to virtualization of legal institutions. The litigants and their lawyers are a barrier because of their geographical diversity, political diversity and institutional diversity. They have competing goals and are usually participating in an adversarial capacity. The litigants do business and have disputes in different cities, different counties, different states, different regions and even different nations. No individual court, legislator or executive has authority to compel his or her methods of work in all venues. The courts where disputes are resolved are also geographically, politically and institutionally diverse. There are federal courts, state courts and county courts. Each court is created by a separate constitution and separate legislation. Each court is also funded by a different executive/legislative budget process. County courts in some states are funded entirely by the state budget, while others are financed only by the county budget. Some courts even receive funding by a combination of state and county budgets. It is said by some that ” if you know one court, you know one court” and the same can be said about a law office, ” if you know one law office, you know one law office” Although they all do the same thing -they do the same thing differently.The past has been dominated by the notions: 1. That legal institutions believe they are paper driven when in fact they are process driven; 2.Limited electronic public access; 3. Fragmented vision and stakeholders fights; 4. Fewer resources-greater needs; 5. Few change sponsors; 6. Resistance to change; 7. A plea for standards; and 8. Y2K distraction of time and money. PRESENT Where are we now? Currently the legal community is slowly beginning to realize that their insistence on doing it “my way” is not only costing them in the court of public opinion, but also in the pocket book. The quickly evolving methods of doing eBusiness and eCommerce in other endeavors are also obviously having a favorable impact. Litigants and government policy makers are starting to insist that new solutions be used instead of the old costly paper process. There has also been a dramatic change in the state of readiness of both the courts and law firms of the nation. The remarkable acceleration of the state of readiness is attributable to several factors. According to Ronald W. Staudt, Professor of Law at Chicago-Kent College of Law who participated in the London ABA Annual Meeting session – Wiring the Legal Profession for the 21st Century -networked, e-mail ready computers on legal professionals desks has jumped from 7% in 1985 to 90% in2000. Likewise Internet use on legal professionals desktops has increased from 7% in 1995 to 90% in 2000. Concurrently, with the increase of computer availability is the release of money, emotion and time, which were encumbered by the Y2K problem and solutions. Along with the dramatic improvement and availability of technological infrastructure there has also evolved the beginnings of shared information through the World Wide Web-the Internet. Clients, lawyers and courts are also beginning to share information through web based technologies such as intranets and extranets The current age is occupied by: 1.Experimentation by pioneers; 2.Expanded public access; 3.Fragmented courthouse and law office technologies; 4. Technology evolutionary explosion; 5.Privacy hand wringing; 6.Public private partnership success; 7. Industry standards progress and consensus; and 8. Increasing number of change sponsors. FUTURE Where we are going? The progression of the legal community into the INFORMATION AGE has followed the path of: i. building a technological infrastructure (the past); ii.sharing information (the present); and iii.managing knowledge (the future). Professor Richard Susskind, the author of The Future of Law http://www.amazon.com/exec/obidos/ASIN/0198764960/ < qid=969395848/sr=1-1/002-2454498-3905649> and a noted authority on the future of legal institutions puts it this way, ” In all, then, I expect that traditional legal service will continue to play a major role in society but it will come to be delivered more quickly, at a lower cost, with greater consistency of approach and to a higher quality. Professor Susskind goes on to say that there will be a “disintermediation of legal advisers, whether in-house when firms recognize they need less legal staff for the delivery of service that can be systematized or, worse still, when entire legal tasks are pre-packaged, productised and available on the World Wide Web without the direct involvement of any lawyer or firm.” The Future of Legal Practice, Wiring the Legal Profession in the 21st Century, American Bar Association – 2000 Annual Meeting, London, England. The immediate future will demonstrate: 1. Public private partnership acceptance; 2.Standards adoption by the industry or the market; 3.Courthouse and law office technology integration; 4.Creation of the electronic case file; 5.Open integrated digital pathway to and from the courthouse; 6. The business of dispute resolution and the law office will become a part of e-commerce. This article first appeared on pro2net.com Previous articles are available at www.montyahalt.com/articles/vc/vc.htm .

Issue 5.3 The VirtualCourthouse

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VirtualCourthouse; Issue 5.3
The VirtualCourthouse

Judge Arthur M. Monty Ahalt – June 2000

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

VIRTUALcourthouse.com will soon become a reality. It is anticipated that a pilot will be underway the summer of 2000.

The Vision: A place, unconstrained by time, space, media or location, which enables individuals to resolve their disputes with competent neutrals through diverse methods of alternative and traditional dispute resolution fairly, justly, impartially and expeditiously.

The Mission: To become the world’s largest and most efficient private or public independent dispute resolution organization.

Arbitrators: Arbitrators will be provided an internet based place to advertise their services, administer their business, conduct an arbitration, post their decisions and have the quality of their services rated by the parties and their lawyers.

Methods of Arbitration: Full arbitration. Evidence is presented to an arbitrator, the parties argue the case and the arbitrator renders a decision.

Mediation. A neutral talks to the parties separately or together, pointing out strengths and weaknesses of each party’s case in an effort to affect a consensual compromise solution.

Neutral case evaluation. The parties submit their facts and arguments in summary fashion to a neutral who gives an opinion about the likely outcome if the case were tried by a Judge or jury.

Shadow Jury. The parties present their facts and arguments in summary fashion to a jury of independents to ascertain the value of the case.

Panel of subject matter experts. The parties select a panel of arbitrators who have industry experience in the subject matter area of the dispute. The panel hears the evidence and arguments and renders a decision.

Bid Offer confidential. The plaintiff makes a money demand (confidential) and the defendant makes an offer (confidential); the parties define the rule-arithmetic which settles the case. For instance the parties can agree that if they are within 20 percent, 15 percent, or 10 percent then the case is settled for the average of the two numbers. The parties can agree to make 1, 2 or 3 tries.

Baseball. The parties present their case in summary fashion to a neutral and make a confidential final offer. The neutral renders a decision and the case is settled for the party’s number which is closest to the arbitrator’s number; the losing party pays for the cost of arbitration

Posting claim. A party may post a claim and an offer to arbitrate. VirtualCourthouse will notify the other party of the offer to arbitrate and the parties can negotiate an agreement to arbitrate.

Media for Arbitration: Arbitrators, the parties and their lawyers will be able to select the appropriate Internet on-line media to facilitate the method of arbitration selected.

Face to face. The parties will be able to schedule, on the Internet, a traditional arbitration hearing and file arbitration papers online.

Paper only. The parties will be able to file arbitration claims, arguments and exhibits online. The arbitrator will file a written decision online.

Interactive Word. The parties will be able to interactively present their case in a chat room setting where the arbitrator can ask written question and receive answers from the parties.

Interactive Voice. The parties will be able to present their case to an arbitrator through oral persuasion on the Internet.

Interactive Video. The parties will be able to present the case to an arbitrator using full real time video broadcast quality on the Internet.

Pilot Arbitrators Needed. Any arbitrators or lawyers wishing to participate in the pilot should contact Arthur M. Ahalt at amahalt@virtualcourthouse.com.

JusticeLink-CourtLink: A Vision for the Future: As JusticeLink and CourtLink announced their merger a new vision has evolved for the information age and the legal industry. (See www.justicelink.com and www.courtlink.com ).

JusticeLink is an Internet provider of electronic filing of court documents for the legal community and provides the pathway for information going into the courts. CourtLink, on the other hand, is a provider of electronic public access to court records. The new combined company will thus provide a pathway of information into the courts and a pathway of information out of the courts.

Information in–Information out. This new combined service will reduce time, costs and the resources required to retrieve information from and file documents in the nation’s 16,000 courts. The new company will transform the current methodology of the transfer of information from customer to supplier by providing an online Internet based exchange. Thus all the participants in the dispute resolution process and all of the individuals and institutions who need the information related to the process of dispute resolution will be able to access that information any time any where.

The new company will be headquartered in Bellevue (Seattle), Washington, with regional offices in Dallas, Texas; San Francisco, California; Washington, D.C.; and Denver, Colorado. JusticeLink currently has electronic filing projects in Jefferson County, Texas; Montgomery County, Texas; El Paso, Texas; San Francisco, California; San Diego, California; and Fulton County, Georgia. Projects will soon commence in Baltimore Circuit Court, the Washington D.C., Superior Court; Wilmington, Delaware; and Cleveland, Ohio.

CourtLink currently provides electronic public access to almost all of the Federal District Courts and the Federal Bankruptcy Courts; Oregon; Washington; New York (selected counties); North Carolina (selected counties); Texas (selected counties); Prince Georges County, Maryland; and Riverside, California.

Issue 5.2 Ten Tips for the New Millenium

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VirtualCourthouse ; Issue 5.2
Ten Tips for the New Millenium
Judge Arthur M. Monty Ahalt (Ret.)

TIP 1: BE A LEADER

Webster defines leadership as the capacity to lead and leading as the act of being at the front. However, leadership really is more than being at the front or having the power because you are placed at the front. A leader causes people to undertake activities that they do not want to do. A great leader causes people to be excited and enthusiastic about doing what they did not want to do. Judges, Bar Leaders and law firm partners have the position of leadership. However, in order to lead there must be something in addition to the position. A leader must desire to take people where they do not want to go. No special skill or ability is required to enable people to do want they otherwise would be inclined to do.

Judges across the nation are stepping up to the plate and leading the way to electronic public access to court records and electronic filing. JusticeLink, www.justicelink.com the leading electronic filing company in the country has electronic filing projects in Texas, California, Georgia, and soon will have projects in Colorado, Delaware, New Jersey, Ohio and Maryland. In each of those jurisdictions, it took the leadership of a Judge to get the momentum started. In Texas, it was Judge Mehaffy. In San Francisco, it was Judge Pollak. In San Diego, it was Judge Prager. In Colorado, it was Judge Sturat. In Georgia, it was Judge Newkirk. In Delaware, it was Judge Del Pesco. In New Jersey, it was Judge Longhi. In Maryland, it started with Judge Angeletti and now Judge Quarles. In Ohio, it was Judge Hannah.

Each one of those Judges took a problem and became leaders by providing a solution, which required enormous change. Now to be sure they were not in each instance alone at the front and other leaders stepped forward. They received support from administrative judges such as Judge Kaplan and now Judge Heller in Baltimore. Or they received support from the highest court such as Justice Martinez in Colorado. Support also emerged from Court Administrators. In California, it was Alan Carlson. In Colorado it was Bob Roper. In Delaware, it was Tom Ralston and in Maryland, it was George Riggin and now Frank Brocolino

TIP 2: BE 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.

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 3: DEVELOP A STRATEGY

Solomon the wisest man of all time said ,”without a vision my people will perish.” In obtaining a vision, it will be helpful to write down the mission of your office.

How will you accomplish your vision? It is the strategy that enables the “rubber to meet the road.” How will you introduce change into your office? How will you get the decision-makers to decide in favor of your vision? How will you get the money people to make your vision a priority? It is your strategy, which counts.

History has shown that if you do not have a plan you will do nothing. You know “shoot at nothing and you are sure to hit it” Of course, a plan must be written and not just in your mind. A plan which is just in your mind is not really a goal. It is nothing more than a dream. On the other hand there is power in putting the plan down on paper. When you commit something to writing, commitment to achievement follows naturally. It is like New York Yankee great Yogi Berra said, “If you don=t know where you are going, when you get there you will be lost.”Ten Tips for the New Millenium

TIP 4: 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 lose.

TIP 5: USE THE INTERNET

Everyday more content appears on the Internet. More and more useful information is becoming available. However, you need to become a student. Set aside some hours of the week, which will be devoted to examining legal resource web sites. Learn how to organize your bookmarks. Talk to your favorite law librarian (mine is Pam Gregory) about what is new and what is helpful.

TIP 6: READ, READ, READ

Read a book on the Internet; Pick up a periodical at the newsstand on the Internet. Better yet subscripe to a periodical. 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 of the newsstand and just read the advertisements and articles of interest

TIP 7: TALK TO LAWYERS AND JUDGES

Experience we know is a great teacher. If you make the use of computers the topic of conversation as you talk to other 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 does not work? What developments are helpful? What developments are duds?

TIP 8: ATTEND A TECHNOLOGY CONFERENCE

Hardly a month goes by when there is not 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 18 & 19, 2000, at the BWI Marriott. Contact Pat Yevics at MSBA headquarters for details at pyevics@msba.org . Or check at the Bar Association’s website at www.msba.org . Also, consider the American Bar Association’s Techshow 2000 in March in Chicago, Illinois. Check the ABA’s website at www.abanet.org for further details.

TIP 9: USE YOUR BAR ASSOCIATION WEB SITE

Your bar association is devoting more and more resources to its web site. As it becomes apparent that the Internet is a valuable tool for providing a continuous stream of information, more information is made available on the Internet.Have you checked out the new content and format of the Prince George’s Bar Association web site www.pgcba.com developed by Don Patterson of Koolstuf Internet Consultants, Inc. www.koolstuf.com . Better yet let Don publish your web page and teach you how to be your own web master.

TIP 10: USE E-MAIL

Make everyone you communicate with on paper aware that you would rather communicate by e-mail. Put your e-mail address on your stationary and your professional cards. Encourage your bar association to publish member lists of e-mail addresses. Make it clear to everyone that you communicate with that you would rather communicate by e-mail. I recently called Judge Ford in Oakland, California and her voicemail had a message, which said that she would rather communicate by e-mail and the message gave her e-mail address.

February 2000