Category

Original VirtualCourthouse Articles

Issue 2.8 Litigation Integration III

By | blog, Original VirtualCourthouse Articles | No Comments

VirtualCourthouse: Issue 2.8
Litigation Integration III

Judge Arthur M. Monty Ahalt

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

 

Integration is defined by Webster’s New Intercollegiate Dictionary as “to form into one, whole; to make entire; to complete; to round out; to perfect.” According to Webster, the essence of integration is to unite so as to form a whole.

Justice integration — the concept from the ’70s — as opposed to Litigation Integration — the concept of the ’90s — differs in its approach to the problem of providing information to the participants in the litigation process. On the one hand, justice integration concentrates on specific items of factual detail which the participants in the process use. On the other hand, Litigation Integration concentrates on the process of moving information to a decision maker and the process of moving the information from the decision maker to the consumer — ‘information in–information out.’

Justice integration attempts to get all participants to wear the “same size shoe.” The driving concept of justice integration is standardization. Every detailed factual element necessary for a decision must be recorded the same way and in the same sequence. Thus, last name first name cannot be last name comma first name. Nor can it be first name/last name. Justice integration allows for no flexibility nor does it embrace diversity. The focus is on detail and the requirement of the “same size shoe.”

Part of the difficulty in achieving integration of litigation information has been the failure to recognize that dispute resolving is process driven before it is detail driven. For instance, when the time limit of dispute resolution is set, the collection of detail ends and the process begins. While detail is very important, the essence of resolving disputes remains a process — ‘information in–information out.’

An examination of the dispute resolution process reveals that it is composed of three elements: (i) communication; (ii) workflow; and (iii) a base of knowledge.

In examining the process, it is useful to identify the participants. The participants can be grouped into four categories: (i) litigants; (ii) lawyers; (iii) clerks; and (iv) court. The participants in each category have unique needs yet they have a common need — the process of ‘information in–information out.’

First, communication occurs with a diverse group of individuals. Litigants talk to lawyers. Lawyers talk to witnesses, clerks, judges and investigators. Assignment clerks talk to filing clerks and judges. State’s Attorneys talk to detectives and police officers. Judges talk to adult and juvenile probation officers. An integration system must allow for this diverse group of individuals to communicate with each other in a secure fashion.

Second, interaction between people occurs in workflow — the process of completing a task and passing it on to a fellow worker. The workflow is driven by the process of ‘information in–information out.’ The litigant collects the information (who, what, where, when and why) and passes it on to the lawyer who adds the same information to a pleading and passes it on to a clerk who adds a docket number and case management element and passes it on to a judge who takes the information and combines it with evidence, makes a decision and passes it back to the clerk who files the decision, dockets the decision and passes it back to the lawyer who passes it back to the litigant — ‘information in–information out.’ An integration system must provide a foundation for workflow — a reduction of the number of steps to complete a task.

Third, a base of knowledge is used to complete a task or make a decision. Each participant — the litigant, lawyer, clerk and judge — must use databases of knowledge that are different and unique yet they are also dependent on databases of knowledge that are the same — namely, the database of knowledge is the court file maintained by the clerk. An integration system must provide the decision maker with the availability of diverse databases of knowledge from which to draw on to make a decision.

These three requirements: communication, workflow and base of knowledge are embraced by Groupware. Groupware, as we discussed last month, is defined as any application that promotes communication, collaboration and coordination among a team of people.

Issue 2.7 Litigation Integration II

By | blog, Original VirtualCourthouse Articles | No Comments

VirtualCourthouse: Issue 2.7
Litigation Integration II

Judge Arthur M. Monty Ahalt

Litigation integration is a concept which has been around for several decades, about as long as mainframe computers. During the 1970s, with the advent of the mainframe computer in the court environment and its apparant ability to manage large information databases, litigation integration — then called justice integration — became a frequently discussed topic. The criminal court community, including the court, state’s attorney, public defender, sheriff, corrections department, juvenile probation and adult probation realized that they were using the same basic information. They were entering the same information into separate databases maintained on the mainframe computer. In most cases, they were precluded from sharing their databases because of the doctrine of separation of powers. Each office is created by the Constitution of the United States, a state or county. Thus each constitutional officer regards the information necessary to discharge the obligation of the offices mandated by law as the privileged obligation of that office.

For instance in the State of Maryland the office of the State’s Attorney is created by the Constitution of the State of Maryland. The State’s Attorney’s Office is funded through the county budget. Each State’s Attorney for each county elected by the voters of that county views their obligation as a unique obligation to the voters who voted them into office. Hence, they view the information necessary as “their” information. The State’s Attorney’s uniqueness is further complicated by the requirements of attorney/client privilege and the adversarial nature of their business, i.e., presenting evidence in court against an opponent who is trying to defeat their view of the case. Because of this adversarial/privileged nature of their business, State’s Attorneys, rightfully so, will not permit other interested governmental or private agencies access to their mainframe computer information databases.

The Public Defender who sits on the other side of the adversarial table is created by a special act of the legislature. The Public Defender’s operations are funded in the State budget which is proposed by the Governor and adopted by the legislature. The Code of Professional Responsibility adopted by the Court of Appeals requires the Public Defender, a lawyer licensed by the Court of Appeals, to keep any information acquired from or on behalf of the client confidential. Thus, the Public Defender’s computer databases cannot be shared with any other court-related organization.

The Sheriff, Police Department, both County and State, the Probation Departments and Juvenile agencies share similar requirements, although not as compelling. The process of sharing information is further complicated by a budgetary process provided by the various constitutions and law which requires the county budget to fund some agencies, the state budget to fund some agencies and both the county and state budgets to share in the funding of some agencies. This funding dilemma is further complicated by the doctrine of separation of powers which prohibit the executive or legislative branch of the government from controlling the functions of the judicial branch of the government through the budgetary process and thus making judicial decisions.

It was in this environment that many “thought” leaders in the court community of the late 1970s and early 1980s began promoting justice integration of mainframe computer databases. Many were forward-thinking enough to promote re-engineering of the business processes through partnering ventures with Federal, State and local elected officials. Many saw promise in the EDI (Electronic Data Interchange) solution being successfully implemented in the commercial world. This process, which most first observed as the barcode on the grocery item at the checkout counter, requires the identification of data elements of information which all users agree to maintain in the same form. Moreover, agreement is reached as to the number of essential elements of information.

However, the EDI concept has been unsuccessful in the Court community largely because of the structural and constitutional diversity of the many participants. This diversity precludes “one world” hierarchial structuring.

As computer systems have matured from total dependence on the mainframe to the introduction of local area networks and personal computers, the court community is beginning to take advantage of the “groupware” application being developed in the software industry. These systems provide for the sharing of information without the “one world” hierarchical element.

GROUPWARE

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

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

The commonware elements are provided by all four groupware providers. However, the workflow element is provided only by IBM-LotusNotes 4.5 for Domino.

Issue 2.6 Litigation Integration

By | blog, Original VirtualCourthouse Articles | No Comments

VirtualCourthouse: Issue 2.6
Litigation Integration

Judge Arthur M. Monty Ahalt

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

The cost of litigation has exploded in the last ten years. Much of the cost of litigation is the product of inefficient and antiquated business processes. A major contributing factor to the cost is litigation’s dependence on paper. The dependence on paper starts with the litigants, is perpetuated by their lawyers and is required by the courts.

Let’s look at the paper volume in just one court — the Circuit Court for Prince George’s County. There are 21 judges in the Circuit Court. In 1994, there were 42,700 cases filed representing 1.7 million pieces of paper. Demographic experts predict that in the year 2000 there will be 65,000 cases filed representing 2.6 million pieces of paper.

One of the great anomalies the advent of the personal computer has brought is the creation of more paper without a change in the business processes which create the paper. The costs and inefficiencies of the overwhelming paper volume is requiring decision makers to examine the alternatives offered by the electronic world. Other businesses and institutions have successfully addressed their paper problems with electronic solutions — why can’t the litigation world? — so the reasoning goes.

There are, however, many factors which inhibit and deter a true coordination of all of the variables such as people, institutions and types of information. The primary deterrent is the nature of the participants, particularly their independence.

First, the litigants. They represent geographical diversity, political diversity and institutional diversity. They have competing visions and missions and they are usually participating in an adversarial capacity. They do business and have disputes in different cities, different counties, different states, different regions and even different nations. No one court, legislator or executive has authority to compel their action.

Second, the courts, where the dispute is resolved. They likewise represent geographical diversity, political diversity and institutional diversity. There are national courts (U.S. Federal courts), state courts and county courts. Each is created by a separate constitution and separate legislation. Each is funded by a different executive/legislative budget process. For instance, there are over 3,000 counties in the United States. County courts in some states are funded entirely by the state budget and in others, entirely by the county budget and yet others by a combination of state and county budgets.

The Washington-Baltimore metropolitan area is not unlike many metropolitan regions. Metropolitan regions, of course, account for a substantial majority of all litigation. The Washington-Baltimore region is composed of two states — Maryland and Virginia — and the District of Columbia. Within this region, the Federal court system is composed of four separate courts: (i) the U.S. District Court for Maryland-Baltimore; (ii) the U.S. District Court for Maryland-Southern Division-Greenbelt; (iii) the U.S. District Court for the District of Columbia; and (iv) the U.S. District Court for Northern Virginia. There are nine state trial courts: (i) Fairfax; (ii) Arlington; (iii) DC Superior Court; (iv) Prince George’s County; (v) Montgomery County; (vi) Howard County; (vii) Anne Arundel County; (viii) Baltimore City; and (ix) Baltimore County. These fifteen separate trial courts have separate computer systems and separate databases and separate ways of doing business. Moreover, no one jurisdiction has the capacity to compel another to subscribe to their way of doing business.

For the last decade, the strategy has been to use the electronic world to compel these many diverse and independent litigants and courts to subscribe to a single way of doing business. Federal court administrators and state court administrators spend enormous amounts of time and resources seeking to create a national or statewide system. The reality, however, is that there will be many different ways of doing business which in all likelihood will continue. Nonetheless, the fact remains that tremendous productivity gains and budget savings will be the product of the electronic world — the virtual world. Federal systems, state systems and private litigators will reap great rewards. It will occur sooner for those who concentrate on the elements of information unique to litigation and the elements of change.

The national electronic filing pilot project, JusticeLINK, demonstrated that one component of electronic filing resulted in 30 percent gains in productivity in the clerk’s office. When productivity gains of this level are applied over a 10-year period of time, the additional staffing needs necessitated by the filing increases could likewise be reduced by 30 percent. Lawyers, JusticeLINK demonstrated, could also reduce overhead by more than $7,000 per lawyer per year.

The bureaucratic need for hierarchical control and pyramid authoritarian methods must be cast aside in favor of shared information and business process change. As top-down authority disappears, the consumers of litigation information will be unhampered by federal lines, state lines and county lines.

Litigation — dispute resolution — occurs in a very predictable and sequential manner. It matters little whether the dispute is of criminal, civil or family nature or for that matter whether the dispute is resolved in a federal, state, county or private ADR court. Moreover, there is no difference if the litigants are public institutions, private institutions or individuals. The sequence of events is the same for a public institution such as a state’s attorney or prosecutor’s office; a private institution like an insurance company; individual plaintiffs and defendants; or their lawyers. The sequential elements of litigation are:

1. Dispute Occurs

2. Dispute Reported/Recorded

3. Dispute Adjusted/Compromised/Settled

4. Dispute Filed in Court/ADR

5. Dispute at Pretrial/ADR

6. Dispute at Trial/ADR

7. Dispute Post-Trial/ADR

8. Dispute Archived

The elements of the information composing each of the sequential elements are almost always determined by the answer to the questions posed by the five w’s: Who? What? Where? When? and Why?

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

Re-engineering guru Michael Hammer represented the radical approach in the early 1990s when he said: “It is time to stop paving the cow paths. Instead of embedding outdated processes in silicon and software, we should obliterate them and start over.”

Hammer advocated a “re-engineering” of our businesses using the power of information technology to radically redesign our business processes in order to achieve dramatic improvements in their performance. He maintains that the heart of re-engineering is the notion of discontinuous thinking — recognizing and breaking away from outdated rules and fundamental assumptions.

Hammer’s principles of change are: (1) Organize around outcome not tasks. (2) Have those who use the output of the process perform the process. (3) Subsume information-processing work into real work that produces information. (4) Treat geographically-dispersed resources as though they were centralized. (5) Link parallel activities instead of integrating their results. (6) Put the decision point where the work is performed and build control into the process. (7) Capture information once at the source. Finally, Hammer says to THINK BIG.

Over the last ten years, the radical-obliteration approach has moderated into the more methodical approach. This approach is represented by David Osborne and Peter Plastrik’s recent book Banishing Bureaucracy. Their thesis is that organizations and, therefore, processes change when a few fundamental levers of activity are changed which results in cascading change throughout the organization. They maintain that “there is no recipe you can follow to reinvent government, no step-by-step progressions you must adhere to.”

In order to impact the levers in each organization, they must be approached with a clear strategy. Osborne & Plastrik identify the five Cs of change as:

PURPOSE

Core Strategy

Clarity of Purpose

Clarity of Role

Clarity of Direction

INCENTIVES

Consequences Strategy

Managed Competition

Enterprise Management

Performance Management

ACCOUNTABILITY

Customer Strategy

Customer Choice of Service

Competitive Choice

Customer Quality Assurance

POWER

Control Strategy

Organizational

Empowerment v. Hierarchy

Employee Empowerment

Community Empowerment

CULTURE

Culture Strategy

Breaking Habits

Touching Hearts

Winning Minds

The challenge is to apply these principles to the process of litigating disputes so that the repetitive, costly paper-dependent process can be replaced by electronic processes which allow the sharing of information without the necessity of redundantly repeating the input of the information.

Issue 2.5 Public Private Partnership

By | blog, Original VirtualCourthouse Articles | No Comments

VirtualCourthouse; Issue 2.5
Public Private Partnership
Judge Arthur M. Monty Ahalt

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

Money, money everywhere and not a penny for me! Such has been the fate of the Judicial Branch of the Government when it comes to dividing tax revenues among the three equal branches of the government — the Executive, Legislative and Judicial. In Prince George’s County, Maryland, a suburban county of Washington, DC with 700,000 plus residents, the law requires a balanced budget. Tax revenues are $1.2 billion. The Judicial Branch’s share is $7.2 million. This financial distortion has required a resort to creative methods to provide needed resources. Historically this has been especially true when it comes to obtaining funds for technology. Although much technological advance requires a capital investment, budget decision makers continue to require the courts to obtain technology through operational budgets.

The public/private partnership has recently received attention as one of several new creative methods for acquiring necessary resources to capitalize technological needs. The public/private partnership is a concept which originated in the early 1980’s largely through the efforts of Public Technology, Inc., an association whose goal it is to bring technological advances to government particularly local governments. A search of the literature, however, does not reveal a lot of information or definition to the subject. Most references are to public education partnerships with the notable exception of the public/private partnership between the Securities & Exchange Commission and its electronic data gathering and retrieval system EDGAR. In 1993, the SEC entered into a public/private partnership with Mead Data Central, Inc. To sell data to commercial computer services. Mead’s rates were subject to SEC’s approval according to the partnership agreement. The legitimate question then might be asked: What is the definition and purpose of a public/private partnership?

A public/private partnership is an agreement between a public agency and a private group which is not prohibited by law, benefits both the public and private groups and furthers a public purpose. The public agency may take the form of a local governmental entity, a regional group or a national agency. In its simplest form a public agency is a governmental entity created by law. In its more complex form it can be an agency created by a governmental agreement such as a treaty. A private group is a non-governmental entity. Most all public agencies are created by a constitutional or legislative act. Those acts spell out the powers of the agency as well as its prohibited actions. Usually a reading of the enabling law will reveal whether a public/private partnership is prohibited. The partnership will perform a public purpose if it is within the scope of the powers and does not otherwise violate sound concepts of public policy.

A public/private partnership can serve many purposes and functions — from the universal to the specific. Among the purposes which the public/private partnership can serve are the following: (I) provide a service which otherwise is unaffordable; (ii) create a continuing revenue source; (iii) dedicate a continuing revenue source to a specific purpose; and (iv) overcome cumbersome purchasing requirements.

One of the more recent applications of a public/private partnership has been in the area of public electronic access to court records. Because members of the public have a need for the court’s information, technological entrepreneurs (technologists) are seeking contractual relationships with courts. The technologists are willing to pay the courts for electronic access to its records usually in relationship to the volume of use. In Prince George’s County, this arrangement was entered with Andersen Consulting, LLP as JusticeLINK, a national electronic filing pilot project.

Examples of other public/private partnerships are: CourtLINK, CourtCALL and QuickCOURT.

The public needs timely information regarding judicial records. It is a wise public policy to provide that information timely and at an affordable cost.

Issue 2.4 Four Steps to Paper Freedom

By | blog, Original VirtualCourthouse Articles | No Comments

VirtualCourthouse: Issue 2.4
Four Steps to Paper Freedom

Judge Arthur M. Monty Ahalt

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

FOUR STEPS TO PAPER FREEDOM

The infocosim, a place where computing, communication and content converge, a world unconstrained by time, place or form, depends on an environment where paper is not used as a carrier of communications. The first step then to a virtual courthouse or a virtual law office is to develop a place or a strategy to convert the paper processes of the judicial and legal business of this country to an electronic process. Key to an organized approach is an understanding that the paperflow in a court house or, for that matter, a law office is that information flows into the court house and then information flows out of the courthouse.

INFORMATION IN

INFORMATION OUT

I. PUBLIC TO CLERK.

The first and most important step is to convert as much paper at the beginning of the process into an electronic document. An electronic document is one which is composed of simple text documents much like a word processing document or ASCII character text. It is important to remember that the priority should always be to motivate the creation of an electronic document as opposed to a scanned document, because of space and ease of use. A scanned document takes up to 25 times the space in the computer memory and hard drive as a character-based document. However, it would be unrealistic to develop a plan which did not have a component providing for the conversion of a paper document to a scanned document (Image) because paper is not going to suddenly disappear. When it is time to file a pleading, the documents which have been created and scanned must be combined as one electronic entity much like a paper complaint and accompanying exhibits. This electronic pleading is transmitted to the Clerk for filing in an electronic package — the equivalent of mailing a paper complaint and accompanying exhibits for filing. The final part of this step is for the Clerk to electronically receive the document and docket the pleading which includes updating the Court’s case management system.

II. CLERK TO JUDGE

In this step, the development process becomes more difficult. It is at this step where the old paper world and the new electronic world converge and are merged together into an electronic case file (ECF). An electronic complaint and exhibits are expanded to an ECF.

Existing paper pleadings and new paper pleadings are scanned and their images are combined with electronic documents into the ECF. When the case is ready for a ruling from a judge or a trial, it is electronically transmitted to the Judge. In the meantime, the file is still available for use or review by other members of the public, the court or other government agencies.

III. JUDGE TO CLERK

This step records the Judge’s ruling electronically. This occurs in several different ways depending on the action of the Court. The Judge’s ruling is placed in an electronic Order which becomes a part of the electronic case file. The electronic Order can also be printed and converted into a paper Order where paper Orders are needed by the non-electronic world. Where Orders are not necessary to communicate a Court’s ruling, such as a trial verdict, the ruling is docketed electronically. In all cases, the Court’s ruling will electronically update the Court’s case management system. Finally, the electronic case file is electronically transmitted to the Clerk’s Office.

IV. CLERK TO PUBLIC.

When the electronic case file is transmitted to the Clerk’s Office, it can be published to the public, government agencies and within the Court as an electronic file. The public who still depends on paper can print any document they wish to have in paper form. For the public who depends on the electronic world, access to Court documents will be viewed on-line on a computer screen.

Once completed, the four steps to an electronic case file will lead the Court, the Bar and litigants to tremendous efficiencies. For the Clerk, the ECF will reduce clerical steps, reduce the movement of the file and give the Clerk’s Office an opportunity to reorganize. For the Court, the ECF will reduce the need for paper to decide, make the Court file always available, reduce the number of steps to record the Court’s judgment and speed the availability of the Court’s judgment to the public. For the Bar, the ECF will reduce the paper costs of filing, reduce the delivery costs of filing, provide organized access to case dockets and provide the foundation for the beginnings of an electronic law office file.

JusticeLINK, the nationally-recognized electronic filing pilot project quantified the savings for the Clerk’s Office and for the law office. Results of this case study showed that the Clerk would realize a 35% savings in Clerk time spent docketing pleadings. On the law office side, electronic filing demonstrated saving a lawyer $7,000 a year in overhead. These cost savings are first the beginning and more will come. However, many clerks, judges and lawyers still are nay-sayers, doubters and fearful of change. For them, the time for change is NOW!!