The ABA Technology Sessions
by Charles Christian
Virtual reality in the courtroom, actual problems in the courthouse.
WHILE THE American Bar Association's annual meeting may only hit U.K. shores every 15 years or so, when they do show, they bring enthusiastic contributors and a wealth of new ideas and alternative perspectives.
This summer's London technology agenda began with a panel on e-filing and access to court records, held July 17 at the Law Society headquarters. The panel offered a full and frank discussion of XML as a tool for creating a system of "smart" court documents. It also raised the issue of whether XML would take off -- or just follow the example of previous platform- independent efforts (such as plain text and PDF) that also started amid much hype, but subsequently waned in popularity. (XML -- eXtensible Markup Language -- is derived from the HTML language used by Web pages and allows documents to automatically share data. It has also recently been adopted by Microsoft as part of its "Dot Net" next generation Windows operating system initiative.)
However this session also revealed that electronic court records systems generate some important issues -- including costs, privacy and access to justice. For example, e-filing (electronically submitting court documents in a digital format over the Internet rather than on paper) may appear to save costs over the use of paper (if only in terms of the court space physically required to store conventional files). But if the justice system is to be fair and equal, special provision must be made so as not exclude the so-called "digital underclass."
At the very least this could involve installing good quality document scanners, scanner operators plus security (to protect the scanners from theft and vandalism) in every court in the country -- a daunting task in the U.K. and probably unthinkable in the U.S.A.
Studies in the United States have found that about 60 percent of documents filed in court cases were originally created on a word processor and are eight or less pages in length -- thus presenting little technical challenge when it comes to converting them into an e-filing compatible format. However, the cost of converting the approximately 20 percent of exhibits that are in a graphical format into electronic files actually outweighs the benefit of the savings accruing on all the other documents.
Similarly, while most court documents in the U.S.A. may already be in the public domain, for practical purposes "functional obscurity" means they are buried from sight -- often literally -- in the bowels of a courthouse basement. Once we go all digital however, with court files displayed on the Internet for public inspection, every aspect of litigants' "dirty washing" relating to their business dealings, credit card records, marital break-ups and tax affairs would be far more accessible than at present.
Leaving aside the desirability of this from a personal privacy point of view, James Keane, of the American e-filing company CourtLink/ JusticeLink, also warned that in the U.S.A. this could provide raw material for the growing number of "identity thieves" who steal personal information so they can fraudulently apply for credit cards and finance.
Wiring the Profession
The second major technology session was the plenary program on the topic of "Wiring the Legal Profession for the 21st Century," held July 20. The undoubted highlight of this session was a demonstration by the English Appeal Court judge, Lord Mark Saville of Newdigate, of the virtual reality system being used by his team as part of the ongoing Bloody Sunday Inquiry in Northern Ireland. (See July issue of Law Technology News for a full report.)
Created by the Belfast-based Northern Ireland Centre for Learning Resources (lead by Derek Kinnen), it is one of the first litigation support systems in use anywhere in the world that -- through its use of video quality 3D graphics -- provides an impartial aid to witnesses (as distinct from being just a partisan reconstruction of the events by one of the parties.)
Other speakers hammered home the message that while the use of legal technology is making some great leaps forward, there is still a long way to go between vision of what could be achieved. As one put it: "The PC was the yellow pad of the future" -- and what is actually being achieved in most Main Street U.S.A. law firms.
For example Steven Daitch, of West Group, produced new research statistics revealing that while 83 percent of solo practitioners in the United States now have Internet access, (100 percent in larger firms with 41 or more lawyers), small firms are still not gaining the true benefits of computerization.
Thus it is common to find that the same piece of data has to be entered at least three times into separate client management, time billing and document management systems. Daitch estimates this duplication of effort alone costs (wastes would be a better term) each firm am average £10,000 a year in staff time.
The most optimistic speaker at this session was Lord Justice Henry Brooke, one of the English judiciary's staunchest advocates of the use of legal technology. He said he was feeling particularly happy because the ABA conference coincided with the announcement by the British Treasury of increased spending budgets that will provide the Lord Chancellor's Department (the U.K. equivalent of the U.S. Justice Department) with some of the cash it urgently needs to carry out long overdue improvements to both the civil and criminal courts systems in England, Wales and Northern Ireland.
Stripping out the funding earmarked for Legal Aid, over the next three years until 2003/04, the LCD will have an extra $775 million at its disposal. Compared with its spending limits for the current year, over the three years this amounts to almost a 17 percent increase in its total budget.
Brooke said the Court Service had been pinning its hopes on a big increase because the lack of IT to support the recent civil justice procedural reforms is currently threatening to swamp the Royal Courts of Justice (the headquarters of the courts system in London) with paper.
Ironically, under the old rules the courts operated an almost paperless regime because until a case came to trial just about the only documents they handled were the formal pleadings. Today, by comparison, they also have to contend with all the Civil Procedure Rules files that, in the absence of any supporting computerized case management systems, must be stored in hard copy format.
According to Brooke: "With a single jurisdiction and a single set of procedural rules, English courts have the opportunity to lead the way in the use of technology in the justice system" and he predicted that within less than ten years e-filing would be commonplace in the U.K. as well as in the U.S.A.
Charles Christian is a member of the LTN Editorial Advisory Board, and the publisher and editor of the U.K.-based Legal Technology Insider newsletter