Remaking the Courts and Law Firms of the Nation : Industrial Age to the Information Age
Texas Tech Law Review Vol. 31 # 4
Judge Arthur M. Monty Ahalt( Ret.)* (2)
Cyberspace, virtual community, infocosm, information superhighway, Internet, WAN, LAN, modem, memory, windows–what does it all mean to the lawyer, the judge and the court clerk?
Alvin & Heidi Toffler in their book, Creating a New Civilization, put it this way: “Humanity faces a quantum leap forward. It faces the deepest social upheaval and creative restructuring of all time. Without clearly recognizing it, we are engaged in building a remarkable new civilization from the ground up. This is the meaning of the Third Wave.” (3) According to the Tofflers, the Third Wave is bringing our world, including the legal profession, into a new way of life. (4)
The Third Wave brings with it a genuinely new way of life based on diversified, renewable energy sources; on methods of production that make most factory assembly lines obsolete. . . . The emergent civilization writes a new code of behavior for us and carries us beyond standardization, synchronization and centralization, beyond the concentration of energy, money and power. (5) ADVANCE \d13
Thus, the infocosm evolves. (6)
INFOCOSM, a word coined by Andersen Consulting, is defined as “a virtual world unconstrained by time, place or form; a world where computing, communicating and content converge.” (7) The infocosm is not a thing of the future, it is here today. (8) The infocosm enables the public and private working environments of today to be citizen-centered. (9) It is enabling public and private sectors to converge. (10) Recent studies have shown that up to 70% of the courts’ and lawyers’ business can be virtualized in an electronic context. (11) This virtualization of the legal world would lead to a decrease in court costs and an increase in legal efficiency.1 (12)
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.
The paper volume in just one court, the Circuit Court for Prince George’s County, Maryland, is an excellent example of this over-dependence on paper. There are 21 judges in this 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 in just this one court.
One of the great anomalies the advent of the personal computer has brought to the legal community 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.1 (13) Other businesses and institutions have successfully addressed their paper problems with electronic solutions, why can’t the litigation world?
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, traditional legal institutions, and the types of information needed are all variables that prevent the legal world from solving its problems by electronic means.1 (14) The participants in the legal process are the largest block to virtualization of the law.1 (15)
The litigants are a problem because of their geographical diversity, political diversity and institutional diversity. They have competing goals and they 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 their action.
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.
The Washington-Baltimore metropolitan area is just one example of the many metropolitan regions which have legal systems that are not currently conducive to virtualization. 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.1 (16) 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.1 (17) 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. These characteristics prevent the courts and the attorneys from unifying legal business by electronic means.1 (18)
For the last decade, the strategy for many court administrators 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 are, and will probably continue to be, many different ways of doing business. Nonetheless, the fact remains that a tremendous increase in productivity and budget savings would be the product of an electronic world, a virtual world. Federal systems, state systems and private litigators would reap great benefits from virtualizing their business and these rewards will occur earlier for those who concentrate on change and the elements of information that are unique to litigation.
The national electronic filing pilot project demonstrated that one component of electronic filing resulted in 30 percent gains in productivity in the clerk’s office.1 (19) 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.1 (20) Lawyers could also reduce overhead by more than $7,000 per lawyer per year.1 (21)
As a result of these changes, the bureaucratic need for hierarchical control and pyramid authoritarian methods could be set aside in favor of shared information and business process changes. As top-down authority disappears, the consumers of litigation information will become unhampered by federal, state and county lines.
Because litigation occurs in a very predictable and sequential manner, it should not be difficult to change the mechanisms that are currently employed by courts and attorneys to encompass electronic mediums.2 (22) It matters little whether the dispute is of a criminal, civil or family nature or whether the dispute is resolved in a federal, state, county or private ADR court. Moreover, the process is no different 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? Consequently, changing the mechanisms used in gathering and releasing that information should not be a difficult task.2 (23)
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 people have examined the elements of change over the last decade. While some businesses have taken a radical approach, others have taken a methodical approach. Both approaches are probably needed to effectuate efficient change.
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.”2 (24) 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.2 (25) He maintains that the heart of re-engineering is the notion of discontinuous thinking or recognizing and breaking away from outdated rules and fundamental assumptions.2 (26)
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.2 (27)
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 1997 book Banishing Bureaucracy.2 (28) Their thesis is that organizations and, therefore, processes, change when a few fundamental levers of activity are changed.2 (29) This results in cascading change throughout the organization.2 (30) Osborne and Plastrik maintain that “[t]here is no recipe you can follow to reinvent government, no step-by-step progressions you must adhere to.”2 (31)
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.3 (32)
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. In other words, integrate the litigation process.
The word “integrate” is defined by Webster’s New World Dictionary as “to bring together into a whole; to unite or unify.”3 (33) According to Webster, the essence of integration is to unite so as to form a whole.3 (34)
Justice integration, the concept from the ’70s, differs from Litigation Integration, the concept of the ’90s, 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. The process moves information in and out in an efficient manner.
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 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 of this process 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 resolution is process driven before it is detail driven. For instance, when the time limit of dispute resolution is set, the collection of details ends and the process begins. While detail is very important, the essence of resolving disputes remains a process that gets information in and 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) the court. The participants in each category have unique needs yet they have a common need, which is the processing of information in and information out.
The first element of dispute resolution is communication between the participants. Communication occurs within 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 integrated litigation system must allow for this diverse group of individuals to communicate with each other in a secure fashion.
The second element is the interaction of people through workflow, which is the process of completing a task and passing it on to a fellow worker. The workflow is driven by the processing of information in and 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. The clerk adds a docket number and case management element and passes it on to a judge. The judge then takes the information and combines it with evidence, makes a decision and passes it back to the clerk. Finally, the clerk files the decision, dockets the decision and passes it back to the lawyer who passes it back to the litigant. This is the processing of information in and information out. An integrated litigation system must provide a foundation for workflow and a reduction in the number of steps to complete a task.
The final element in dispute resolution is the use of a base of knowledge 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. However, the participants are also dependent on databases of knowledge that are the same. The court file maintained by the clerk is one example. An integrated litigation system must provide the decision maker with the availability of diverse databases of knowledge which may be drawn upon to make a decision. When communication, workflow and base of knowledge are provided a virtual courthouse and virtual law office segues from vision to reality.
The centerpiece of the virtual courthouse and the virtual law office is the electronic case file (ECF).3 (35) An ECF is the compilation, in electronic format, of all relevant materials needed for a judge to decide a dispute or a lawyer to represent a client.3 (36) In order for a judge and a lawyer to achieve time and space efficiencies, they must both create an electronic case file. Common sense would instruct that the judge and the lawyer should jointly participate in the development of the ECF because of the interdependent nature of their work. Many of the elements of the lawyer’s ECF and the judge’s ECF are similar if not the same.
Before we examine those elements, a building process must be structured. That process is composed of: 1) Creating a foundation for change; 2) Understanding the workflow of a judge and a lawyer; 3) Defining the elements; and 4) Selecting the technology. The process is sequential with each step building upon the prior step.
Step 1: Creating a Foundation for Change: Embrace Change as a Friend Not an Enemy
Change is an inevitable product of the technology offered by the information age infocosm.3 (37) Ordinarily, people resist, fight or ignore change.3 (38) When those dynamics of resistance occur, change in people’s work patterns occur very slowly and productivity decreases.3 (39) On the other hand, when change is embraced with an attitude of acceptance, people’s work patterns change very fast and productivity dramatically increases.3 (40)
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 alone, however, does not guarantee improvement and success.
Step 2: Understanding the Workflow of a Judge and a Lawyer
The nature of the workflow of a judge and a lawyer is similar in many respects. In its simplest form, it is the process of information coming in, a decision being made based upon that information, and then that information going out. For the judge, that process can be broken into four separate stages: (i) from the public to the clerk; (ii) the clerk to the judge (information in); (iii) the judge back to the clerk; and (iv) the clerk back to the public (information out). For the lawyer, the phases are similar: (i) the client to the lawyer; (ii) the public to the lawyer (information in); (iii) the lawyer to the court; (iv) the lawyer to the public; and (v) the lawyer back to the client (information out).
Step 3: Defining the Elements
The elements of a judge’s ECF are: (i) the docket of court filings; (ii) the electronic court filings or electronic images of court filings; (iii) the law in electronic format; (iv) the evidence–an electronic recording or transcript of the testimony, the exhibits as electronic images; and (v) the court’s decision. The elements of a lawyer’s ECF are: (i) the docket of information received; (ii) the images of each document received; (iii) legal research; (iv) legal memoranda; and (v) court filings.
Step 4: Selecting the Technology
The technology necessary to support an ECF consists of hardware and software. The hardware infrastructure consists of personal computers (PCS), servers and modems. Office suite software (word processing, spreadsheet database, presentation), GroupWare, communication and imaging/file management software form the software infrastructure. The most critical software, however, is GroupWare. GroupWare is defined as any application that promotes communication, collaboration and coordination among teams of people.3 (41) There are presently four main organizations that provide a GroupWare solution: (i) IBM-Lotus Notes 4.5 powered by Domino 4.5; (ii) Microsoft-Exchange; (iii) Novell-Groupwise; and (iv) Netscape-Suitespot.4 (42) The Internet itself is taking on many of the attributes of groupware. Given these technological advances, rebuilding legal mechanisms using an electronic format is entirely plausible. However, the legal world has simply failed to make these changes.
Remaking the Courts and Law Firms of America
As we find ourselves confronted with the information age and the potential for growth, the public is demanding that lawyers and judges change. Change is being thrust onto almost every facet of life. It is like a whirlwind, which will not let up and move on. Simultaneously, judicial and bar leaders are coming to grips with the genuine and real perception that citizens do not have trust or confidence in courts or the legal profession. These two dynamics, the information age and public trust and confidence, will compel the reshaping and indeed the remaking of the law offices and courts of America.
As dusk settles on the Twentieth Century, the judicial system gropes to embrace the information age. As the sunset turns to the dawn of the Twenty-First Century, judges, lawyers and administrators struggle to cope with the many changes forced on a system rooted in tradition and principles that are not conducive to change. The law’s supreme foundation is stability and certainty. Change thrusts itself from all directions, the far left, the far right, and the muddled middle. Not only are there changes brought on by legislators, governors and presidents, but the very fabric of our communities is being challenged by the lightening speed of change occasioned by new and evolving information technology.
Critics say that the system of resolving disputes is too slow, too cumbersome, too expensive and too mysterious. It is as if the line of people waiting to have their disputes resolved has not changed from the days of Moses almost 5,000 years ago. In that day, as it is recorded in the book of Exodus, Moses’ father-in-law, Jethro, came to visit him.4 (43) After observing Moses for several days, Jethro told Moses “what you are doing is not good. You and these people who come to you [with their disputes] will only wear yourselves out. The work is heavy for you; you cannot handle it alone.”4 (44) Indeed, Representative J. C. Watts recently pointed out during the impeachment debate: “[T]here is no joy sometimes in upholding the law. It is so unpleasant sometimes that we hire other people to do it for us. Ask the police or judges, it is tiring and thankless, but we know it must be done.”4 (45)
The dynamics of the information age and public trust and confidence are not just focusing on courts and the legal profession. Rather these dynamics are also focusing on the business community and government. In the March edition of The Futurist Magazine, Bennett Davis identified the Five Forces Redefining Business, Profits from Principles.4 (46)
These [f]ive forces are converging to shape business’ new social imperative: consumer conscience, socially-conscious investing, the global media, special-interest activism and expectations of corporate leadership. First, today’s consumers have learned by experience that societies and economies–like nature–are closed systems. [Second,] [c]onsumers’ new conscience have complemented and cultivated the second factor–the rise of socially conscious investing. Those potential problems are exacerbated by the third factor: a competitive, unsparing and technologically-endowed media– especially television–that makes once abstract concepts like global warming or sweatshop labor personal to consumers. Fourth, zealous special-interest groups have become deft at using the media to link corporate practices with social and environmental problems and solutions. Fifth, the public is transferring its expectations of leadership in solving social problems from government to business.4 (47) ADVANCE \d13
The similarities in the issues confronting business and the Courts are remarkable. When the concept of e-commerce is added to this mix, the disturbing winds of change become even more daunting and challenging.
What is e-commerce? How will it impact dispute resolution and the business of dispute resolution? According to MIT professors Chris Westland and Ted Clark, “Electronic commerce, or e-commerce, is the automation of commercial transactions using computer and communication technologies.”4 (48) E-commerce is in essence the computerization of markets whereby buyers and sellers are matched, a price determined and payment and delivery arranged.4 (49) E-commerce is providing increasing opportunities because: (i) technology is user friendly; (ii) networks exist in stable forms; and (iii) business is reorganizing and re-engineering production and managerial processes.4 (50)
What are the implications of the dynamics of e-commerce on the dispute resolution process? On the courts? The implications will manifest themselves on the substance and the process of litigation. The substance of litigation is the subject matter of the dispute. The process of litigation is the manner and method of filing and pursuing a claim in court. Over the next several months, it will be necessary for society to examine e-commerce and its impact in greater depth.
Over the past several years we have witnessed an unrelenting marching evolution from purchasing EDI, to ATM dispensed cash, to pay at the pump ATM gasoline stations, to point of sale cash register computers, to Internet renewal of drivers’ licenses, to the purchase of books on the Internet. Simultaneously, it is becoming clear that the world is becoming borderless in the sense that time and space are no longer significant barriers to a business transaction.
So how do the courts and law firms fit into this electronic commerce picture? According to MIT e-commerce professors Westland and Clark in their textbook Global Electronic Commerce, there are three major types of electronic commerce: Business to Consumer, Business to Business, and Closed Group Networks.4 (51)
Industrial age goods and services are made available to the consumer through marketing channels. The information age has taken these channels out of the paper world into the electronic world. For the most part, courts and law firms fit the model of business to business (B2B) electronic commerce.5 (52) The fit is not 100 percent because there are definite elements of business to customer involved in the businesses of both courts and lawyers. However, to the extent that courts and lawyers transact the business of dispute resolution, a clear case can be made for the B2B e-commerce model.5 (53)
What is the dispute resolution channel of commerce? The channel begins with the facts of the dispute. That may be a simple automobile accident or a broken promise. Those underlying facts become the basis of a claim. Usually the claim takes a written form such as a letter, but many times the claim is made orally by an individual to an organization. If the claim is not finally resolved, then a lawyer is usually consulted. The lawyer then makes contact with the individual or organization and attempts to resolve the dispute. If the dispute is not resolved at this point then the lawyer typically will file a lawsuit in a court.5 (54) Ultimately the court renders a judgment and the suit is finally resolved.
How does e-commerce and the information age affect this channel of commerce? Generally speaking, e-commerce changes a service-related channel of commerce to a transactional-related channel. In the transactional world, time, space and location become less significant. Therefore, a channel’s hierarchy is reduced and sometimes flattened as many steps in a process are removed or combined. The result is that lawyers, judges and clerks can concentrate on their core competencies becoming less distracted by exterior matters. Thus, the availability of networked information and high-speed computers allows for smaller, more nimble competitors to operate more profitably by focusing on their core competencies. In the industrial age, location was a driving consideration. For example, the three rules of the value of real property, location, location and location, make it clear how important the geography of a business was during the industrial age. In the information age, however, location is becoming insignificant as networked individuals and organizations compete from any place in the world.
If we can apply what is happening in other industries to lawyers and the courts in the dispute resolution channel of commerce, we can expect the following changes to occur:
1. Time delays will be reduced. Post office delays will be eliminated.
2. Time uncertainty can be reduced in financial transactions as a migration to electronic billing and purchasing occurs.
3. Immediate acknowledgment of receipt of information will allow for a better and more trusting relationship between lawyer and client and lawyer and Judge.
4. Communication of service completion to clients will allow clients to plan other business transactions in a more timely manner.
5. The one time entering of information will allow for greater efficiencies, reduced costs and increased profits.
6. Paper and mail costs can be reduced or eliminated.
7. Financial transactions can be automatically placed into proper accounting categories.
8. The danger of lost or destroyed paper can be eliminated.
E-commerce makes location insignificant. So if a law firm in Hawaii can do a better, cheaper job, then they will compete for business in Georgia. E-commerce also changes distribution channels and creates new distribution channels. Peter Drucker, the management expert for the information age, points out that new distribution channels change the identities of customers. These distribution channels change how and what customers purchase. They change consumer interaction, patterns of financing and business structures. In essence, these channels change the entire economy.
The end of a Century and the beginning of a Millennium is not the pleasure of every generation. As we wind down the Twentieth Century it is a time for reflection. Reflection of the good and of the bad. Over the course of the last month of the 1900s, we saw countless documentaries recounting the memorable events and people of the Twentieth Century. It was as if history was flashing by in the blink of an eye. For sure there have been many memorable events over the last 100 years in the courtrooms of the nation. In fact, the acceleration of the number of significant trials occurs at almost a dizzying and sometimes disturbing rate. Likewise, the contribution which the organized bar has made to the improvement of the administration of justice and the legislative and executive branches of government is impressive. No other profession is called upon to make greater sacrifices for the common good then the legal profession. Lawyers are truly the technicians of democracy. Day in and day out, it is the lawyer who makes a difference in the order of our communities. Volunteer lawyers can be found in virtually every significant community organization–from the PTA to the civic association to local charitable organizations to education. And the legal profession is expected to, and does, provide free legal services to the poor. Now the profession is called upon by its ethical rules to provide pro bono services to the poor.5 (55) Yet there continues to be general dissatisfaction with lawyers and courts. The pollsters point to persuasive evidence that public trust and confidence of courts, and the legal profession is at an all time low.
Shortly after the turn of the 19th Century, a 36-year-old lawyer and Dean of the Nebraska Law School traveled to the State Capitol in St. Paul, Minnesota. It was there that Dr. Roscoe Pound delivered his famous essay, The Causes Of Popular Dissatisfaction With The Administration Of Justice, in 1906.5 (56) It might seem unusual that a young lawyer could evidence such wisdom, but Roscoe Pound was an unusual man. The Doctor was learned not only in the science of jurisprudence but in the science of botany. He earned his PhD while conducting a ten year botanical survey of Nebraska. Thus, Dean Pound brought to the science of law a keen ability to observe phenomena along with the ability to diagnose cause and effect.
You see his scientific mind allowed him to analyze the current legal system against its historical background dating to the first courts instituted by Moses. He said in his essay:
“Our system of courts are archaic.”
“Our procedure is behind the times.”
“Our judicial power is wasted”
“Putting courts into politics has almost destroyed the traditional respect for the Bench.”
Dean Pound began his analysis by grouping the causes for dissatisfaction with the administration of justice under four main headings.
- Causes with dissatisfaction with any legal system.
- Causes lying in the peculiarities of our Anglo-American legal system.
- Causes lying in our American judicial organization and procedure.
- Causes lying in the environment of our judicial administration
He pointed out initially that any study of legal systems revealed a certain level of dissatisfaction. He identified four main causes of dissatisfaction with any legal system as being attributed to:
- The necessarily mechanical operation of rules, and hence of laws;
- The inevitable difference in rate of progress between law and public opinion;
- The general popular assumption that the administration of justice is an easy task, to which anyone is competent;
- Popular impatience of restraint
The Deans message that August day in Minnesota motivated the formation of the American Judicature Society. Three years later a special committee of the ABA reported “ The whole judicial power of each state, at least for civil cases should be vested in one great court, of which all tribunals should be branches, departments, or divisions. The business as well as the judicial administration of this court should be thoroughly organized so as to prevent not merely waste of judicial power but all needless clerical work, duplication of papers and records, and the like, thus obviating expense to the litigants and cost to the public.
Dean Pound made another astute observation. He said: “ The law seeks to harmonize these activities and to adjust the relations of every man with his fellow so as to accord with the moral sense of the community. When the community is at one in its ideas of justice, this is possible. When the community is divided and diversified, and groups and classes and interests, understanding each other none to well, have conflicting ideas of justice, the task is extremely difficult. It is impossible that legal and ethical ideas should be in entire accord in such a society. The individual looks at cases one by one and measures them by his individual sense of right and wrong. “
It is with these two points –wasteful administration and the inability to harmonize diversity –where the information age will have the greatest impact on courts and the legal profession. The information age promises to create great efficiencies –to allow for central organization in spite of jurisdictional and regional diversity. The promise of the information age with electronic filing, document management and the creation of the electronic case file is to rid the courts of the inefficiencies of paper. No longer will it be necessary to create one great central court in order to become effeicient. Yet at the same time the information age poses a threat by exacerbating conflicting ideas of justice and accelerating conflicts and disagreement. While the efficientcies of the information age are desparately needed care must be taken to preserve the rule of law in an environment of increasing and conflicting ideas of justice brought on by a diverse community.