Electronic Filing of Court Documents – a Help or Hinderance for the Court Reporter
Judge Arthur M. Monty Ahalt (Ret.)*
Electronic filing of court documents is a concept that means different things to different people. The diversity of the use of the words “electronic filing” when applied to the Courts of this Country is remarkable. Most all of the language disparity has occurred over the last three years. As recently as 1994, there barely existed a court which used the words “electronic filing.” Faxed pleadings were about the only subject being discussed. Over the past six years, there has been an explosion of the use of the words “electronic filing.” To some, especially the JEDDI organization, the words are associated with the concept of standardized exchange of electronic data and electronic documents. Others, such as JusticeLink, use the words to communicate the concept of the electronic transmission of a document as an ingredient of the work process or paper flow of court pleadings from the preparation to the filing in court. Others, such as CLAD, use the words to identify a closed non-internet electronic environment for specialized high-volume cases such as asbestos or bankruptcy. Some use the words to describe the electronic posting of opinions and orders of court. Yet others use the words to identify the transmission of briefs by floppy disks or even CD-ROM. Others find the words descriptive of the use of E-mail for the filing of specialized pleadings.
Underlying the diversity of the words “electronic filing” is a debate over whether electronic filing can or should be accomplished by the government or whether it can be better accomplished by private industry. Those who maintain that it is a government function find support in the notion that government has the responsibility to maintain the integrity of public information. Those who side with private industry maintain that it has the ability to stay flexible in a fast-changing technological world. They further maintain that government cannot meet regional needs of the litigating public because of the diversity of the many governmental units represented by the different federal, state and county courts. On the government side of the argument, some advocates subscribe to the enervating notion that the filing system equates to control. My thirty-two years of experience, 15 years as a trial lawyer and 17 years as a trial judge, lead me to the inescapable conclusion that both sides are partially right and need to come up with creative methods to get the “best of both worlds.”
The Court’s primary mission is to resolve disputes. Members of the public who find themselves in the middle of a dispute are primarily concerned with cost and time. Cost and time are only increased by jurisdictional diversity. The public is demanding new and creative solutions to old problems.
Currently there are eight primary electronic filing organizations actively involved in the development of electronic projects, JusticeLink, www.justicelink.com, Law-on-Line, www.lawonline.jp.pima.gov, Microsoft/Choice/PCDocs, www.microsoft.com/industry/legal, Image-X, www.e-filing.com, Verilaw, www.verilaw.com , Wade Systems, www.wadesystems.com , and West File, www.westgroup.com , Federal Administrative Office of Courts www.uscourts.gov
What is Electronic Filing?
Electronic filing is the transmission by computer of a court pleading to the Clerk of the Court. The filing should contain all necessary case management and financial information in electronic format. It should facilitate electronic document management for the litigant, the lawyer, the Clerk and the Court.
The ELEMENTS of an electronic file are:
Case management integration
Financial information integration
Work process integration
Jurisdictional and regional diversity
Supports dispute resolution
Litigation community input.
Electronic Transmission. This element has been the subject matter of 90% of the effort. However, this element is perhaps the easiest to solve. The original focus on the transmission has been by telephone access to a wide-area network or by fax. However with the advent of the Internet the other methods of transmission have all but disappeared.
Case Management Integration. Early efforts at electronic filing have focused on strategies that provide for an automated updating of case management databases. This has proven to be a major frustration because of the diversity of the data elements in the existing as well as the evolving databases. The focus on “standards discussion” has been on this element. Often the focus has been on the Court’s case management. Often forgotten in the discussion are the case management elements of the lawyer’s case management system.
Financial Information Integration. Many court filings require the payment of a filing fee. The initiation of this process begins in the lawyer’s office and ends in the Clerk’s Office. The correct amount of the fee should be calculated by the filing system. The system should transmit or authorize the transmission of money, update the lawyer’s accounting system and update the Court’s accounting system.
Workprocess Integration. As a lawyer prepares a document or pleading for filing, a decision making process moves the document from initiation to final form. After a document is filed with the Clerk of the Court, a decision making process moves the document to a judge to resolve the dispute and then back to the Clerk. An electronic filing system should automate the lawyer’s work processes and the Clerk’s work processes. It is unreasonable to assume that all documents will be electronic. Thus, electronic filing must include a component of document management, storage and access. The workflow must be understood and re-engineered.
Jurisdictional and Regional Diversity. Many different and diverse courts exist for the resolution of the public’s disputes. These courts represent different governments: Federal, State and Local. These courts also represent multiple states. The public wants to have a single electronic interface with all courts.
Supports Dispute Resolution. The documents of a case, the case management elements and the financial elements are only a part of the information that a judge needs to decide a dispute. The judge also needs the facts and the law to decide a dispute. All of the information necessary to decide the dispute needs to be available to the judge in electronic format.
Litigation Community Input. Many groups and individuals have a stake in the design and implementation of an electronic filing system. Some of those stakeholders are: lawyers, judges, clerks, court administrators, litigants, rules committees, policy makers, law schools, librarians and yes court reporters.
Now how is it that the court reporter fits into this picture? The court reporters traditional role in the dispute resolution process has been to maintain an accurate record of the proceedings in the courtroom. Every Judge and trial lawyer is painfully aware of the problems created by an incomplete or in accurate record. It is often the professional skill of the court reporter that saves the day by their keen skills of observation.
Over the course of the last decade the court reporter has been under attack by court administrators who have been motivated by the persistent pressure from the budget analyst and legislative and executive budget policy makers. In Montgomery County, Maryland the budget pressure succeeded, over 10 years ago, when court reporters were replaced by audio recording devices. This and other similar events have spurred the debate over the accuracy of the record and principly whether man or machine is better. The debate, however, is not unique to court reporters as many disciplines are undergoing the challenge of change brought on by the information age. Indeed the whole Judicial and legal community is being asked to change traditional work processes that have worked seemingly satisfactorily for decades.
Yet the apparent threat of change is also an opportunity for improvement. In the business world a whole transformation has occurred where former work process technicians have become knowledge managers. The question must be ask – does this same opportunity exist for the court reporter? Can the court reporter be transformed form a compiler of transcripts to a knowledge manager? The transition begins to occur when the focus moves from the paper world to the electronic world. In the paper world the focus for the court reporter has been on the transcript and its value. In the electronic world the focus is on core competencies.
What are the core competencies of the court reporter? We can exclude some areas of consideration immediately, such as typist, and document compiler. Areas of competencies to include would be attention to the details of an accurate record, language clarification, preventing the omission of critical information such as correct spelling of names, places and technical words. O f course there are many more, but the point is how are the core competencies enabled in the electronic world and how does this fit into the concept of Electronic Filing of court documents.
Electronic filing is only the beginning of the electronic courtroom. Some may argue that it is the foundation, but most agree that it is a critical element. But the end result will be the ability to provide a decision maker all of the information necessary to decide the dispute in electronic format in the most efficient and productive fashion. So the court reporters core competitencies should focus on providing the facts of a dispute to the decision maker in a fashion that is fast, productive and cost effective, both to the parties and the court .The court reporters value then will shift from the ownership of the transcript to the management of the knowledge through the interrelation of diverse electronic systems. As we move into the information age value will be in the management of the information not an hourly wage or propriety rights. The public is demanding that the judicial and legal community be able, at the end of the day, to demonstrate that it can reduce the enormous cost of dispute resolution. Although this change is being thrust on the legal community, including the court reporter, at a sometimes alarming rate those who resist and fight the change as an enemy will lose while those who embrace the change as a friend will win – both economically and professionally.
* Judge Ahalt recently retired from the Circuit Court for Prince Georges’ County, Maryland after 17 years. He currently serves as Chief Industry Advisor for JusticeLink – www.justicelink.com . He also publishes a monthly technology column Virtualcourthouse.com –www.montyahalt.com
First Reported in the Journal of Court Reporting, July 2000 – www.ncraonline.org