The Impact of the Internet on
United States Courts and Civil Procedure
A paper prepared for the
International Association of Procedural Law
XI. World Congress on Procedural Law:
"Procedural Law on the Threshold of a New Millenium"
23rd –28th August 1999 in Vienna, Austria
The Challenge of the Information Society:
Application of Advanced Technologies in Civil Litigation and Other Procedures
By Bradley J. Hillis, M.A., J.D.
Member of the Bars of Washington State
and the United States Court of Appeals for the Ninth Circuit
TABLE OF CONTENTS
- Introduction
- Completely Digitized Procedures: Electronic Case Files
- Electronic Court Filing
- Other Private Vendors of E-Filing Software: West, Lexis and LawPlus
- The Portal Play: Lessons of the Internet
- Online Dockets
- Use of Advanced Technologies in Parts of Proceedings Following the Path of a Common
Litigation
- Initiating the Proceedings
- File Management and Case Management
- Delivering the Initiation Document (Service)
- Preparation of the Hearing
- Hearing and Evidence
- Legal Information (Information on Legal Authorities)
- Final Decision
- Complex Litigation Proceedings
- Appeal
- Other Judicial Proceedings (Non-contentious Matters)
- Electronic Record and Register
- The Registration Proceedings
- Conclusion
I. Introduction
Low cost of publishing legal information to the Internet, efforts to reform the civil
justice system to improve access to justice, and a lack of coordination among courts are
the hallmarks of high technolgy since 1995. The success of the Internet has surprisingly
depended on a lack of coordination among courts. It is the individual, creative project
that has advanced efficiency in civil procedure more than central planning and funding.
There are some notable exceptions, such as the electronic case filing project from the
United States Courts Administrative Office, but in general the ability of a talented
individual to publish information to the Internet has characterized the impact of
technology in law.
The primary motivation in development of plans for paperless courts, or completely
digitized proceedings, is the low cost in sharing information through the Internet.
Application of advanced technology to common litigation began as a way for lawyers to win
more cases. Understandably, the most common use of technology is in courtroom
presentations to juries and judges. But the cost savings possible in initiation of
proceedings, the internal case and file management, the research in norms and statutes,
and in publication of legal information are the most important potential effect on the
justice system. By drastically cutting costs with technology, courts can solve many of the
problems identified by Lord Woolf in his July 1996 report, entitled "Access to
Justice: Final Report to the Lord Chancellor on the civil justice system in England and
Wales," http://www.open.gov.uk/lcd/civil/interim/contents.htm.
II. Completely Digitized Procedures: Electronic Case Files
A remarkable transformation from 1996 to 1999 to paperless courts has occurred in
United States. There are today several courts with a large volume of cases that have
completely digitized case files. The ability to scan paper filed by lawyers has allowed
the courts to become digital even before the practice has become widespread of lawyers
submitting their pleadings in electronic format. The courts use different software to
create digital case files, including systems developed by the federal court administrator,
from private companies, and by individual courts.
1. Electronic Court Filing Created by the Courts
In the U.S. Bankruptcy Court for the District of Minnesota the court has created a
digital case file. All papers submitted by attorneys is scanned by the court and made
available to the public on the World Wide Web. Starting March 8, 1999, attorneys have
begun to submit their pleadings in electronic format over the Internet. The court’s
experience in handling a large database of digital images has better prepared them for
electronic filing. With courthouses in Duluth, Minneapolis and Saint Paul, the digital
case file has allowed a lower cost method of sharing information between the different
branches of the court.
Figure 1, U.S. Bankruptcy Court for the District of Minnesota, has a completely
digital case file and allows filing of electronic documents over the Internet.
Source: http://www.mnb.uscourts.gov/
The U.S. Bankruptcy Court for the Eastern District of Washington is another court that
has achieved a totally digital case file. Like the Minnesota court, the one in Spokane,
Washington makes the full text of the pleadings free on the Web, and has an archive
available of all documents since January 1, 1997. The court plans to record the procedural
hearings it conducts via telephone, and to place the streaming audio files on the Internet
using RealAudio software. By clicking on the link to RACER (Remote Access of Court
Electronic Records), the user is presented with a docket. Choosing an individual case then
enbables the user to click on any document filed in that case under the
"Attachment" column. The document is presented as a TIFF image. Documents filed
by attorneys in original electronic format are likely to use an Adobe Acrobat Portable
Document Format (PDF). Both types of images—TIFF and PDF—will appear in the same
docket database.
Figure 2, U.S. Bankruptcy Court for the Eastern District of Washington, has a
completely digital case file and allows anybody to view the full text of all pleadings
filed since January 1, 1997, free over the Internet.
Source: http://204.227.177.194/wconnect/wc.dll?usbcn_racer~get_docket~97-00390~2~SMITH,+SHAW+E~SMITH,+BILLY+B~~~~~
The two courts discussed above, Minnesota and Spokane, are both United States
Bankruptcy Courts. Notably, the courts use different software to achieve a digital case
file. The Minnesota court created their own system while the Spokane court purchased its
software from a private company, Wade Systems of Oklahoma, http://www.wadesystems.com/. Neither court uses the
system developed by the federal courts. The ability of each court to choose its own method
is essential to having become a leader in applying high technology to civil procedure.
The U.S. Bankruptcy Court for the Southern District of California, located at San
Diego, combines elements of the Spokane court with the software from the U.S. Court
Administrative Office. The San Diego court uses Wade Systems software for its case
management and enables electronic court filing by attorneys with the Administrative Office
system.
The court issues a user name and password to participating attorneys, which allows them
to enter a secure part of the court’s Web site. The attorney completes a series of
data fields to create a docket entry and uploads a file in Adobe Acrobat PDF to the court
computer server. The court has mandatory electronic filing in all personal bankruptcy
cases, called Chapter 7, and has done complete imaging of all pleadings in Chapter 13
cases. When Chapter 13 cases become electronically filed starting in April 1999 the court
will have 40% of all its cases under the e-file system, according to Barry K. Lander,
clerk of the court.
Figure 3, U.S. Bankruptcy Court for the Southern District of California, at San
Diego, employs both electronic court filing and scanning of paper documents to achieve a
digital case file.
Source: http://www.casb.uscourts.gov
The decision to require efiling is based on the discovery that most attorneys have
sufficiently powerful computers and Internet access, so the only upgrade needed is to
purchase Adobe Acrobat Publisher for about $100. Approximately ninety percent of
California's 100,000 attorneys are on the Internet, which is a high number. In the United
States generally, the American Bar Association estimates there are sixty percent of
attorneys with Internet access.
2. Other Private Vendors of E-Filing Software: West, Lexis and LawPlus
There are about a dozen companies that offer electronic filing software to courts.
Three private companies--West Group, Lexis-Nexis and LawPlus--demonstrated efiling systems
at the Legal Technology Conference in San Francisco February 23, 1999, that have common
characteristics. All were originally DOS systems that dialed directly into a court or
company computer Bulletin Board System. All had by the mid-1990s migrated to Windows
software for its graphical user interface, and were now being upgraded to use the Web. The
hesitancy in 1996 many courts had toward security on the Internet had fallen away today in
favor of the ease of communicating on the Net.
Phil Ytterberg, national market development manager for WestFile, emphasized the need
for integration of efiling with the court's internal document management. For attorneys
using efile services, West plans to tie in practice forms and research materials.
Ytterberg also argued that a common interface for filing in many courts is important for
attorneys. West's efiling service is featured at http://www.westfile.com
David Vandagriff, director of vertical applications for Lexis-Nexis, focused on the
security and stability provided by his company's efiling system. http://www.lexis-nexis.com/clad/ Keeping the
computer server which receives the efiled documents in the Lexis data center guarantees
the system is always operational. The court still owns all the data on the server,
Vandagriff said.
A representative of LawPlus demonstrated the efiling software used in the San Francisco
Superior Court for a complex asbestos case. An advantage of LawPlus is it can handle a
single case without the need to tie it into the rest of the court docket, and attorneys
can file via fax. Their Web site is at http://www.lawplus.com.
The fee structure of efiling for each company varies, but the important commonality is
that all are paid models. The court implementing efiling does not pay anything and can
access the full text of the pleadings free. However, attorneys pay to file and again to
view the pleadings in the case file.
What West, Lexis and LawPlus showed was that any court desiring efiling can begin more
or less immediately at minimal internal cost. There is no need to wait until the next
budget cycle to implement the technology.
3. The Portal Play: Lessons of the Internet
The insight missing from efiling models is that the same Internet forces apply that
have already shaped other Web sites, such as search engines and portal sites. These forces
determine the fees and role of service providers. We do not need to discuss fees for
efiling: we already know that it has to be free to work. Where would Yahoo! be today if it
charged a fee to use the site? Efiling is a service that attracts visitors to a Web site
and encourages trading information in the form of pleadings for convenience, notably the
ability to skip legal messengers. Likewise, access to pleadings filed by others will be
free…unless you think Lycos erred by allowing free use of its search engine.
Possible revenue sources from efiling include private docket resellers, such as
CourtLink of Seattle, and legal publishers, including West and Lexis. Widespread efiling
is the best way to improve access to U.S. District and Bankruptcy Court opinions and this
is a new market that could provide revenue. This Net-based economic model assumes that
data mining is more lucrative than fees to file, which would tend to discourage attorneys
from contributing material. Net services are free because aggregating people and
information is of overriding value and efiling is no exception.
The other lesson from the Net is one cannot control or limit service providers. The
current approach of a court contracting with one company to provide efiling is
unrealistic. The more sensible idea is for the court to announce data standards to receive
electronic documents. A variety of service providers could then use Web sites to feed
traffic to the court. The lesson of Internet portal sites is that services need to come to
where people will tend to find them.
Applied to efiling, this means attorneys should be able to file documents in any court
from the Findlaw Web site, http://www.findlaw.com,
which is the portal site for American lawyers. Open standards for documents, perhaps built
on XML markup, would allow the receiving court to interpret and process a pleading from
any source. Aggregating traffic at a portal site would increase the percentage of efiled
documents, which helps the court.
4. Online Dockets
The courts discussed above are notable for having achieved a totally digital case file.
Most courts in the United States are far behind this, but still offer significant services
on the Web. One example is court dockets.
The U.S. Supreme Court docket is available in three locations. The Legal Information
Institute at Cornell Law School posts the Supreme Court oral argument calendar as part of
its publication of opinions, at http://supct.law.cornell.edu/supct/calendar.html.
The Washington Post provides the Court's calendar, with helpful analysis of the issues,
but many lawyers find that Infosynthesis offers the an easy to use and especially complete
version, at http://www.usscplus.com/current/.
The U.S. Court Administrator's Office offers free access to the calendar through its
U.S. Supreme Court Electronic Bulletin Board System and via the telephone through the U.S.
Supreme Court Clerk's Automated Response Systems (CARS). The federal courts do not
currently place the Supreme Court docket information on the Web, leaving the task to
private or law school providers.
The biggest change in the federal courts is the movement of trial court dockets to the
Web. The Middle District of Florida was the first federal court to offer Web-based access
to a docket. Previously, this information was available only through PACER (Public Access
to Court Electronic Records), at a cost of sixty cents per minute. Now, the U.S. District
Court in South Dakota has its docket online and other federal courts plan to offer the
service.
Modem irregularity in PACER means better service would result from placing dockets on
the Web, explains by Carl Oppendahl, in "What's Wrong & What's Right with
PACER," an article published in Law Librarians Resource Exchange,
http://www.llrx.com. Oppendahl concluded: "What is desperately needed is for Pacer to
shift over from a modem-based system to an Internet-based system." The courts would
save money and improve service to attorneys by using the Web. The San Diego docket is a
example that the courts are making strides in this direction.
Similarly to the calendar from the U.S. Supreme Court, state appellate courts often
provide oral argument schedules at their Web site. The Mississippi Supreme Court, for
example, offers a searchable docket calendar at http://www.mssc.state.ms.us/DocketCalendar,
as the Alaska Court of Appeals at http://www.appellate.courts.state.ak.us/. The Oklahoma Supreme Court is maintaining a searchable
list of mandates and denials of petitions for certiorari since 1997, at http://www.oscn.net/.
State trial courts in California, Texas and Arizona are the leading examples what an
online docket should offer. These courts accept what other courts cannot: access to the
information is free, at least until we have a better method of transferring small sums say
through e-cash.
At the San Diego Superior Court there is a two week calendar for civil, domestic,
criminal and probate cases posted at http://www.sandiego.courts.ca.gov/superior/. The
information is continually updated and, though the court says the information is provided
without warranty, the direct source makes it as trustworthy as a commercial provider.
The Maricopa County Superior Court in Arizona provides perhaps the most advanced online
docket. The court says that: "This site provides real time access to more than 47
million Superior Court case records dating back to 1987. The Web site is experiencing a
heavy load of approximately 5,000 to 7,000 hits a day and the Court's system is handling
30,000 or more database inquiries daily from Internet users." A Java-enabled browser
is needed to access the site, at http://www.superiorcourt.maricopa.gov/.
In Dallas, Texas, the Fifth Circuit Court of Appeals, at http://courtstuff.com/5th/, has an automated system
to notify attorneys via email of any case filing. The attorney subscribes to receive
updates on a case he or she is involved with, which is tracked by State Bar Association
number, which is a unique number issued to every attorney in the United States when he or
she first qualifies to practice law.
A full historical search of court records for free is possible at the Denton County,
Texas, Web site. The party name or cause number is required to narrow the search, and
additional fields allow the user to specify date filed, party type (defendant or
plaintiff) and case status. Thus, a lawyer can check all civil and criminal cases
involving an individual, which would have previously required a trip to the courthouse or
accessing a paid subscription service.
Figure 4, Denton County, Texas, state trial court offers extensive search
capabilities of the docket. Sex offender information is also available. Complete
conviction data is available for a fee from the State of Texas Department of Corrections.
Source: http://justice.co.denton.tx.us/
In other jurisdictions, the bar association or prosecutor are posting case schedules.
The Chatanooga Bar in Tennessee publishes case schedules for both state and federal courts
in the city as a service to its members, and makes the data freely available. In Jefferson
City, Missouri, the Cole County Prosecuting Attorney posts criminal docket schedules for
the court.
The growing availability of free court dockets does not do away with lawyers’
desire to access commercial services. Sometimes a lawyer will need a more robust search.
The services of KnowX, a West Group product, allow searches across jurisdictions to locate
a broad array of information. There are a host of smaller companies that offer regional
coverage for dockets, such as Verifacts, which provides information from Washington,
Oregon, Idaho, Utah, Texas and Arizona. There are also state-specific companies, including
Legal Services of Georgia, providing paid docket searches.
The essential features of the services discussed above are the diversity of sources for
the technology. There is not a single, best approach to electronic filing or placing court
dockets online. Courts are choosing how to proceed with making their services more widely
available to the public and attorneys. Some of the services are free while others are a
fee-based, paid model. But the force that is driving the movement of court services and
information to the Internet is the remarkably lower cost of publishing and sharing
information. In discussing the application of technology to other phases of civil
litigation below, the same forces apply: there is a diversity of ways to solve problems
and the cost of doing business is lower on the Internet than anything previously available
to the courts.
III. Use of Advanced Technologies in Parts of Proceedings Following the Path of a
Common Litigation
Legal publishing of court opinions was the first element of civil procedure to find an
application on the Internet, and remains the most advanced, but there are notable
opportunities in other areas.
1. Initiating the Proceedings
The most difficult part of electronic case filing has proved the initiation of the
proceedings. In some systems, the attorney must begin the case with a traditional paper
pleading, called a "Complaint." This is for reasons of having an authentic
signature and for payment of court fees. Digital signatures and electronic payment systems
on the Internet hold the promise of solving these challenges but are not widely
distributed today.
An example of initiating a case on the Internet is at the Pima County state court in
Tuscon, Arizona. The system developed by John Messing of LawOnline uses credit card
processing to pay a filing fee for a small claims case. The original document is then
filed with the court via the Internet, http://lawonline.jp.co.pima.az.us/
There are examples of courts using Internet credit card payments in areas other than
initial filings. For example, the Alameda County Superior Court in Oakland, California,
processes credit card payments for copying legal articles for lawyers. In Indianapolis,
Indiana, the county accepts online payments for traffic tickets so the public does not
need to mail in a check to the municipal court.
A problem in initiating a case online is in giving notice to the defendant who is being
sued by the plaintiff. There is the possibility of improvements to email software, such as
Microsoft Outlook, that would permit receipt of acknowledgement that the defendant had
opened the pleading. Until such software improvements are made, however, the court could
receive a pleading but personal, hand service of process will remain a requirement for
giving notice to the defendant.
The problem of authenticating documents served over the Internet is solved by use of
digital signatures. There are numerous sorts of digital signatures, from a simple graphic
image of a handwritten signature to a stronger, more secure system based on asymetric
cryptography with a Public Key Infrastructure. However, the technology is probably five
years away from widespread distribution. Attorney Thomas Smedinghoff of the Chicago,
Illinois law firm McBride, Baker & Coles summarizes digital signature laws at http://www.mbc.com/ds_sum.html. Sample digital
signature forms are available at ftp://www.wolfenet.com/pub/dhillis/digsig/
and sample certification practice statements are at: http://dsgr1.wa.gov/ca_lic.htm and http://www.commerce.state.ut.us/web/commerce/digsig/dsmain.htm.
In the states of Washington, Utah, Minnesota and Missouri, the law provides that a
digital signature is equivalent of a traditional, pen and ink signature provided two
requirements are met. First, the digital signature must be issued only after personally
meeting the applicant and examining identification, such as a driver’s license or
passport. It is not possible to initially create a reliable digital signature by entering
data at a Web site because the applicant could lie about his or her identity. Applied to
the legal profession, the state bar that admits an attorney after law school could issue a
digital signature for use in all courts. Many law schools are examining the application of
digital signatures to create paperless student records in order to save operating costs at
the university.
The second requirement under the state laws is that upon receiving a digitally signed
document, the relying party must be able to check a public repository to confirm the
signature is valid. This is the cornerstone of a Public Key Infrastructure. Whereas
asymetric cryptography allows two individuals to swap public keys, and then trade signed
messages, there remains a missing step: that is the ability know if the key of the sender
has been stolen. The best way to keep track of canceled signatures is to have a repository
run by a trusted third party, called a Certification Authority.
A problem with digital signatures is the high cost compared to unsecure systems. The
Utah state courts planned to use digital signatures for an electronic filing project but
decided against them at the last minute. The initial cost of purchasing a digital
signature was around $100 to $200 and that was acceptable. The problem arose in the cost
of verifying the signature upon receipt, which is about 25 to 50 cents. While the
confirmation fee is a much smaller cost than the initial fee, the confirmation cost would
be borne by the court. The Arapahoe County state court in Denver, Colorado likewise used a
form of digital signature for an electronic filing project but will drop the requirement
when expanding the service across the state in Summer 1999.
In practical applications, the convenience of filing documents on the Internet without
security has proven more important than the added security from digital signatures. Again,
in perhaps five years digital signature technology will be incorporated into desktop
computer software and will become a standard feature in civil procedure, providing
authentication, encryption and non-repudiation. Today, however, the cost savings of
sharing information across the Internet is sufficiently attractive to outweigh security
concerns.
2. File Management and Case Management
The handling of electronic documents by the courts as a matter of internal file and
case management is an area of great opportunity. Most of the 17,000 or so courts in the
United States lack even rudimentary computerized case management systems. The advantages
of an electronic system is the ability to share files in several locations at once, search
documents by keyword and summarize case load statistics. A leading authority in the
importance of internal document management is Judge Monty Ahalt of the Prince Georges
County Superior Court in Maryland. This county adopted electronic filing several years
ago, but dropped it in favor on concentrating on document management. Judge Ahalt is a
proponent of Lotus Notes as a software solution. He particularly likes the security
features of Notes. Judge Ahalt’s articles appear at http://www.mdlaw.net/ahalt/
Another security solution for document management is for the court to digitally sign
documents upon receipt, as the U.S. District Court for New Mexico does. While most digital
signature experiments have looked at the attorney who files a document, the New Mexico
court decided that the more important security feature is to make sure a document, once
received, remains unchanged. By having the court use digital signatures, but not the
attorneys, administration of the program is greatly simplified.
3. Delivering the Initiation Document (Service)
As discussed above, significant problems remain in service of an initial document via
the Internet. There are notification approaches that could be tailored to special
situations. For example, corporations are required to register with the state prior to
conducting business with the citizens of that state. The corporation must designate an
individual to receive service of process, which is usually a registered agent, either an
attorney or a special provider of that service. For example, in Delaware, which is the
most popular state for incorporation due to its predictable body of case law on corporate
matters, there are services to act as registered agents. Delaware could require registered
agents to agree to accept electronic service of process as a condition of incorporation in
the state.
Another wrinkle in service of documents via the Internet is in notice by publication.
Under state and federal court rules, when a defendant cannot be physically located the
plaintiff filing a civil lawsuit may proceed by publishing notice in a newspaper for
several weeks. Arguably, there would be equally effective notice by placing the
advertisement or notice on the Internet. If the defendant was located in another country
the Internet would probably prove more effective at providing notice of impending
litigation. The notice might appear both at a newspaper Web site and the court bulletin
board to increase the likelihood of providing real notice to the defendant.
4. Preparation of the Hearing
The most common use of the Internet in civil litigation is for communication between
attorney and client, or between attorneys in a case, and to possible witnesses, especially
expert witnesses. Though there was some concern in 1996 and 1997 over the confidentiality
of attorney-client communication, today the accepted rule is that email is considered
confidential. Some attorneys attach notices to each email message that the communication
is confidential and solely for the intended recipient. Other lawyers use encryption
software, such as PGP or Invisimail, to guarantee confidentiality.
Clients in foreign countries, especially China, insist that attorneys use encryption
for fear that the government or other corporations will spy on the communications. With
domestic communications within the United States, the general feeling among attorneys is
that the enormous volume of email travelling on the Internet provides sufficient anonymity
that hackers will not capture a confidential message.
Many judges have email and allow some communication with attorneys. There is concern
that ex parte communications could occur, however, but these rules are the same
that govern telephone or face to face communications so there is really nothing unique
about the Internet in this regard. Greater communication between the court and parties is
likely to occur in the years ahead in such areas as scheduling of motions or trial dates.
Figure 5, Email Directory of the Missouri Supreme Court published on the Web http://www.oa.state.mo.us/cgi-bin/email/cgi/email.cgi
Another obvious opportunity for communication is in the use of multimedia or real time
chat features, such as those found in Microsoft NetMeeting. Email is an effective method
of leaving messages for others, but is not effective when there is a need to respond
immediately. Desktop video cameras will enable parties to engage in low cost video
conferencing, provided there is sufficient bandwidth to carry the data intensive
communication.
The judges in American legal proceedings are always permitted to conduct research
outside of the pleadings submitted by the parties. Thus, a judge would properly conduct
research on the Internet about a point of law, or on a factual assertion made by a lawyer.
In many cases, judicial clerks will do this research. In contrast, members of a jury are
not allowed to conduct additional investigation into a case. If a judge found relevant
information on the Internet, the lawyers would have an opportunity to address the new
material.
5. Hearing and Evidence
In civil litigation, the most common use of technology is for video taped depositions
of witnesses. In the recent antitrust trial brought by the U.S. Department of Justice
against the Microsoft Corporation, the presiding judge ordered that witness testimony be
presented on videotape. Only cross-examination took place live in the courtroom.
In criminal cases, American courts have increasingly adopted live video presentment of
a defendant at the arraignment. The defendant enters a plea of "guilty" or
"not guilty" and the judge will set financial conditions of release, called
bail, pending a trial. The defendant is at the jail and appears in the court on a
television screen. The judge, prosecutor and defense attorney are in the court room. The
video arraignment is done to save money, since there is a high cost to transport the
defendant. Many civil rights lawyers object to the procedure as violating the guarantees
of the U.S. Constitution to due process, which is the right of the defendant to know the
charges made against him by the government. Nevertheless, courts have upheld the validity
of video arraignment.
In civil procedure, video participation is likely to increase for the growing number of
child support proceedings. With high rates of marital divorce in the United States,
millions of citizens now have regular involvement with the courts. A majority of cases do
not involve lawyers. Each year or two after the initial divorce, until the children of the
marriage turn 18 or graduate from college, the court will adjust the amount of child
support. Since the decision turns on the amount of income, rather than the persuasive
ability of a litigant, the procedures are especially appropriate for video participation.
Under this scenario, income tax returns and payroll information are presented to the court
and the litigants do not need to leave work to come to the courthouse.
Administrative hearings are commonly conducted with telephone conference calls. For
example, in Montana all unemployment benefits appeals can be conducted by telephone, http://jsd.dli.state.mt.us/ui/95uirule/03/318.txt
Rules of evidence require proof of authenticity for electronic documents, just as for
their paper counterparts. Lawyers have approached the problem in two ways. First, when an
electronic record in the possession of a company is introduced into evidence, the lawyer
will have a custodian of records authenticate it with a written affidavit certifying the
chain of possession. The affidavit would contain words to the effect of: "In the
normal course of business employees of the company enter data into the billing software.
This is stored on a computer kept securely at company headquarters. The monthly bills are
sent to the customers, who regularly pay them based on the invoices generated from the
system. The bill attached to this affidavit is a true and correct copy of the print out of
the data for the ABC Corporation." Compare, Erik Muthow, "The Impact of EDI on
Bills of Lading--A Global Perspective on the Dynamics Involved," (M.A. Thesis,
University of Cape Town Law School, South Africa), http://www.uct.ac.za/depts/shiplaw/muthow2.htm;
see also, U.S. Office of Technology Assessment, Information Security and Privacy in
Network Environments, OTA-TCT-606 (Washington, DC: U.S. Government Printing Office,
September 1994), Chapter 3, Legal Issues and Information Security, http://cpsr.org/cpsr/privacy/crypto/ota_report_1994/ch3.txt.
The second sort of electronic authentication issue arises in the forensics area. There,
the attorney seeks to prove a document contained on a person’s computer was generated
by the named person. Often the document was erased but is recreated by an expert in
computer forensics. This can arise when an employee leaves to go to work for a competitor
and a suit is brought alleging the employee is taking trade secrets to the competitor. The
attorney will have the forensics expert describe in an affidavit the methods used to
retrieve the document. The network administrator may describe in a separate affidavit how
the company issued passwords to employees known only to that individual, so that
presumably that person had sole access to the computer. The opposing lawyer will attack
the security of the system to prove that many people could have had access to that
computer. These issues are arising frequently in cases of sexual harassment where the
accused claims to have never sent the objectionable email.
6. Legal Information (Information on Legal Authorities)
In the United States there is a great deal of legal information available free on the
Internet. The federal and all state constitutions are on the Internet. Statutes are
available for the federal government and roughly 45 states. Administrative regulations are
the least available body of law. Only 25 states have the full text of their administrative
rules free on the Web.
The case law is online from the U.S. Supreme Court dating to 1893, with important cases
available from the founding of the nation. The U.S. Courts of Appeal have a limited amount
of case law. The federal government possesses an electronic copy of the complete case law
for the U.S. Court of Appeals and may release it in the future. All current decisions of
the Courts of Appeal are posted but the database goes back only to about 1990.
Forty-five states have case law on the Internet, but only Oklahoma has a deep
collection of cases that date back several decades. Oklahoma is the best example of a
court publishing its case law on the Internet. Many states have case law available
inexpensively on CD-ROM. The best collections of case law, offered by about 10 states,
dates from 1986 to the present, or 1992 to the present. Another group of about 20 states
have cases since they began Web pages, so about 1995 to the present. Lastly, there are
about 15 states with only advance sheets or recent case law online. These states post
cases for a month or two, then delete them. Several states have more than one source for
case law. The five states with no opinions online are Connecticut, Georgia, Kentucky,
Nebraska, and Nevada. Court rules are commonly published in all states.
7. Final Decision
Courts are provided computers, software and access to the Internet either by their own
initiative or through the jurisdiction in which they sit. About an equal number of courts
use Microsoft Word and Corel WordPerfect word-processing software. These programs are
typically sold with a suite of software that includes spreadsheets that enable financial
calculations, or databases, such as Microsoft Access. In California, the State Court
Administrator provides Internet access to judges and staff on the Supreme Court and
intermediate Courts of Appeal. The trial courts in California receive Internet access
through the county or city in which they are located. In some states, such as North
Dakota, both the appellate and trial courts are run by the state and receive Internet
access from the state.
Judges are sometimes provided access to private law enforcement data that is not
available to attorneys. In Iowa, judges in some counties have on their computers on the
bench access to the arrest information maintained by the state police. However, judges in
other counties in Iowa do not yet have this data available electronically.
Legal research to case law, statutes and administrative rules is possible for those
judges with Internet access to the same extent as to attorneys. There are examples of
judges who have free access to the West legal database, which costs private lawyers up to
$160 per hour to use. West gives the access to the court to encourage adoption of
West’s proprietary standards in case opinions and to ensure access to the case law
for its database.
There are no figures available on the number of judges with computers for access to
data, though it is an accepted part of expected equipment. Judges will use computers to
type case decisions as well as conduct research. Many judges have secretarial assistance
for typing but the growing practice is for the judge to at least revise opinions on a
desktop computer. We can assume that the same percentage of judges have Internet access as
attorneys, that is roughly 60%. This is the figure in Washington state.
8. Complex Litigation Proceedings
The earliest adoption of electronic court filing occurred in complex litigation. In
claims arising from health problems due to asbestos, where thousands of workers were
exposed, the courts turned to electronic filing to streamline the claims process, such as
in the U.S. District Court for the Northern District of Ohio which began its efiling in
1996.
Figure 6, U.S. District Court for the Northern District of Ohio, complex
asbestos case
Source: http://www.ohnd.uscourts.gov/ohnd/welcome.nsf/main/page
A new use of the Internet for class action or complex cases is in administering
communication with the potential class. A law firm may set up a Web site about the case,
or a private service may handle administration of several cases. For example, at the
Analytics, Incorporated Settlement Administration Services Web site, shown in the figure
below, the company offers class action information, described as follows: "You may
access information and documents regarding the class action litigations that we currently
administer, including answers to your frequently-asked questions; case documents, Class
Notices, and Claim Forms; status reports on the litigations; and tracking the status of
your claim."
Figure 7, Analytics, Incorporated Settlement Administration Services
Source: http://www.classadmin.com/
9. Appeal
Appellate courts have used electronic documents far less frequently then trial courts.
In the federal courts, the Administrative Office plans to include an appellate court in
efiling for the first time in 1999. Similarly in state courts, the appellate courts are
slower to adopt procedures for handling electronic documents than their trial court
counterparts. The irony is that appellate courts were earlier adopters of legal publishing
on the Web than the trial courts and should by logic have had more experience with
technology.
In Washington State the Office of the Administrator for the Courts plans to introduce
electronic filing first in the appellate courts and then move to the trial courts. The
Washington Supreme Court and Court of Appeals for Division One in Seattle permit small
procedural motions to be submitted by email. See email protocol for Supreme Court at http://www.wa.gov/courts/clerks/fax.htm.
An advantage of appellate courts’ use of an electronic case record is that the judges
can carry the complete materials needed for a case on a CD-ROM or lap top computer hard
drive, and thus can work from home or while traveling away from the office.
IV. Other Judicial Proceedings (Non-contentious Matters)
The posting of land records and business data, such as security filings under the
Uniform Commercial Code, are available in some jurisdictions through paid services.
Information America is a large private reseller of electronic register information. It
offers "50-state online UCC searching, Online Corporate Record searches in 45 states
and DC, Certified or plain UCC copies from any jursidiction nationwide." http://www.infoam.com/
Register databases are not typically free on the Internet. In other words, land title
and loan or purchase money security information is largely in digital format today but
access is limited to within the government network or through limited, paid means. There
is great potential to facilitate information sharing through these databases and more is
likely to occur in the next three years as desktop software makes it easier to connect
databases to the Web.
1. Electronic Record and Register
In Orange County, California, the government has allowed a private company to provide
online access to birth, marriage and death certificates, as well as a search of fictitious
business names. The service charges $4 plus the usual fee paid if the citizen came to the
county government building to request the service. The rationale of the county is the
convenience of ordering information on the Internet is worth the extra cost. The
countervailing notion is that the government could provide the service cheaper online than
in person, so it should offer the information for a lower cost than if the citizen ordered
it in the traditional method.
2. The Registration Proceedings
Registration of judgments with the court is still done in the traditional method of
presenting a certified copy to the clerk of the court. Courts are beginning to place their
dockets on the Internet so the public can view the information. For example, the
Connecticut Supreme Court has online the state’s civil docket that contains all
registered judgments. Additional examples of online court dockets are discussed above.
Figure 8, Connecticut Supreme Court Party Name Search for Civil and Family Cases,
results for search for the name "Smith"
Source: http://www.jud2.state.ct.us/Civil_Inquiry/DspParty.asp
There is no provision for electronic deletion or modification of register entries.
However, a common feature at Web sites for clerk or land recorders is to include an email
address. It is possible, then, to submit questions through email about procedures in a
jurisdiction that is unfamiliar to the attorney.
V. Conclusion
What changes in court rules and statutes are necessary for the expanded growth of the
Internet in legal proceedings? Digital signatures will provide the ability to conduct
legally binding transactions even in the areas of the statute of frauds, including real
estate purchases and execution of a will, that today require a physical, handwritten
signature. Though the software and laws for digital signatures exist in many jurisdictions
today, the cost remains prohibitive. Thus, the economics of technology remains important
in the impact of the Internet on legal norms. Electronic transactions will increase due to
the cost savings possible. The law will have to find a balance between convenience and due
process, that is, providing meaningful knowledge to the participants in litigation.
Better access to justice is possible with the Internet, for example in enabling
citizens to participate in child support hearings without leaving work, but the opposite
could occur if poor policies prevail. Technology has a dark side, which is shown when
citizens are less able to understand what is occurring in civil procedure. The challenge
is to improve legal education and cut the cost of storage and processing of paper. If
civil litigation can become accessible to more people, then Internet technology will have
found its proper place in the best traditions of participatory democracy.
