VirtualCourthouse: Issue 2.6
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:
Clarity of Purpose
Clarity of Role
Clarity of Direction
Customer Choice of Service
Customer Quality Assurance
Empowerment v. Hierarchy
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.