International Association of Procedural Law
XI. World Congress on Procedural Law: "Procedural Law on the
Threshold of a New Millennium" 23rd - 28th of August 1999 in
Vienna
Prof. Helmut Rüßmann (Germany) / Prof. Wouter de Vos (South Africa)
The Challenge of Information Society:
Application of Advanced Technologies in Civil Litigation and other Procedures
A. Introduction and Issues
The topic in question concerns the application of advanced technologies in civil
litigation and other court proceedings. We will consider the current use of advanced
technologies as well as plans and ideas for future applications. Under advanced
technologies we understand digitised, electronic communication and information retrieval,
exchange and storage. We are concerned with the use of intranet and internet techniques
within judicial proceedings, however, facsimile communication does not lie within the
focus of our interest.
The scope is defined by civil litigation and other court procedures in which civil and
commercial matters arise. In Germany these other court procedures may be court procedures
on non-contentious matters for example. In the main we are interested in public registers
for real estate or company information and the respective shift from paper to electronic
format. Aside from such questions of technical realisation we have to deal with the legal
issues arising out of the application of advanced technologies before they are actually
introduced into civil litigation and other processes. Form requirements, requirements to
appear in court, and access to electronic files should be examined and the significance of
data protection issues (data privacy) should not to be underestimated.
B. Civil Litigation
Some time ago we developed a Scenario for civil
litigation applying advanced technologies:
The plaintiff operates an electronic databank at the company offices in
Saarbrucken. The defendant in Saarheim regularly makes use of the plaintiffs electronic
services. On 1 April 2001 the electronic data processing system informs the plaintiff that
the defendant has not paid his bill for January despite two reminders. Therefore the
plaintiff applies via a telecommunication over the public telephone network for a formal
demand to be made by the Regional Court in Saarbrucken. He signs this application with an
electronic signature.
The Regional Court's Administrative Office checks the electronic signature on its
computer, gives the application a reference, creates an electronic file and electronically
transmits a demand to the defendants email address. The defendant checks his online
banking system and discovers that payment for the services he made use of in January was
made on 17 February 2001. The defendant therefore sends an objection to the Regional
Court.
The Regional Court automatically sends out news of the defendant's objection to the
demand for payment to the plaintiff. After the plaintiff's application for judicial
proceedings has been processed by the Regional Court's computer, the case is handed over
to the County Court in Saarheim. The judge responsible in Saarheim creates a new
electronic file under a new reference on his computer and selects a standard form for the
plaintiffs grounds of complaint. The computer completes the form with the relevant
information and transmits it to the plaintiff.
The plaintiff then copies the information regarding his January accounts stored on
his computer onto the special ground for complaint form, on which the customer information
is available as evidence. The plaintiff then sends this completed form via modem to the
County Court. The judge copies the ground for complaint form into his electronic file and
telecommunicates the document to the defendant as well. In the same way the defendant
sends a retort to the complaint regarding his payment and submits an electronic copy of
his transferral order and bank statement from his online banking system as evidence. This
report and annexed evidence of payment is forwarded to the plaintiff.
The oral negotiations are conducted in a conference room by the County Court judge
with the plaintiff and defendant via a teleconferencing telephone system and monitor. The
parties reiterate their claims and the judge makes sure of the laws of performance and
evidence with a modern Legal CD Rom package and consults an online databank of previous
decisions and literature on the subject. The result is discussed with the parties who
place their claims again.
After the decision is announced it is transmitted to the parties electronically. If
requested, the plaintiff may receive a full justification for the judges decision. The
electronic file is transferred into an archive index and is also saved onto an external
databank with its own inventory.
This is what civil litigation could look like in the future, however Germany and South
Africa still have some way to go. Some steps have already been taken in Germany, for
example regarding automated summary proceedings for an order to pay debts or the
electronic land and real estate register. Furthermore, in the United States of America
very specific and detailed plans exist outlining how litigation in the federal courts
could be completely digitised.
For the purpose of a unified presentation of the national reports we suggest that
primarily the question should be raised as to whether or not there are plans for
completely digitising proceedings. Secondly the application of advanced technologies in
parts of a civil litigation following the path of a common litigation should be
considered. This would encompass the initiation of the proceedings, the internal case and
file management, the preparation of the hearing of the case by judges and attorneys, the
establishment of the factual basis, the trial and evidentiary procedures, the research in
norms, statutes, precedents, and other authorities, up to the final decision and its
effects.
I. Completely Digitised Procedures: Electronic Case Files
What completely digitised civil proceedings could look like may be seen in the
discussion draft submitted by the Administrative Office of the United States Courts
"ELECTRONIC CASE FILES IN THE FEDERAL COURTS: A Preliminary Examination of Goals,
Issues, and the Road Ahead". This document can be accessed and downloaded through the
internet (http://www.uscourts.gov/casefiles/toc.htm). On request, I can provide you with a
disk with all files in pdf-format or even send you a printout of the main document.
II. Use of Advanced Technologies in Parts of the Proceedings Following the Path of a
Common Litigation
If there are neither completely digitised proceedings nor plans for the introduction of
such proceedings then we will have to address the question whether advanced technologies
are at least applicable or thought to be applicable and relevant in the future in parts of
the civil proceedings. The possible areas where the technology could be applied within the
German system of civil litigation are outlined below.
1. Initiating the Proceedings
In Germany the document which initiates the civil litigation process is a complaint or
a motion for summary proceedings for an order to pay debts. The question is whether, and
if so under which conditions and provisions, the filing of the complaint or motion can be
done using electronic media be it telecommunication or the handing over of a disk to be
copied into the file to be handled by the court. German legal practice allows the filing
via telecopier. There is no provision for electronic filing via email, ftp, or disk. Such
filing has not yet taken place due to the lack of suitable equipment in our courts.
How does one consider and go about filing the initiating document in your country
electronically? Has this method been adopted and set up already? Are there plans for such
a system in the future? How is the issue of authenticity of the document dealt with, i.e.
how can you tell whether the document genuinely stems from the person it says it is from
and has not been altered on the way to the court? Are there any legal obstacles to the
admittance of electronic filing? What kind of legal issues have to be solved before the
implementation of such an electronic system of initiation?
2. File Management and Case Management
Does the file and case management rely on (only) written material or on electronic
material as well? In which manner is the internal organisation (handling of hearings and
rooms, dockets, communication with parties, attorneys and witnesses) constructed and
documented: in written files and books or in electronic files and timetables as well?
If the file management is done electronically in which way is the authenticity of the
electronic case file assured? How can it be guaranteed that the written and electronic
files contain exactly the same information? Who is granted access to the electronic files
(judges, attorneys, parties, the public?)?
3. Delivering the Initiation Document (Service)
Can the initiating document (and other documents) only be delivered by handing over or
putting down a written document or is it possible that the same can be achieved by email
or electronic file transfer? How is it assured that in the case of electronic serving the
document is delivered without alteration?
Could the public service provided by the internet (World Wide Web) be utilised in order
to improve the process of giving notice compared to the traditional public service on the
courts bulletin board?
4. Preparation of the Hearing
By preparation of the hearing we mean the communication between the court and the
parties, their attorneys and possible witnesses. To what extent does one think about
applying advanced technologies (email) to handle the communicative needs? Are there legal
obstacles to the use of modern telecommunication? Which legal issues have to be solved
before introducing and allowing modern telecommunication between judges, parties,
attorneys and witnesses? May the judge use information from the internet to supplement the
facts of the case at hand?
5. Hearing and Evidence
Do you allow or think about hearings and testimony without physical presence of the
persons involved using video conferencing techniques? What kind of legal obstacles have to
be faced before introducing such proceedings? Which legal issues have to be solved?
How does your law of evidence treat electronic documents?
6. Legal Information (Information on Legal Authorities)
Do your courts and judges have access to legal authorities as norms, statutes,
precedents, and other authorities contained in electronic media (online or offline)? Do
the parties and their attorneys have a chance to participate in the use of such
information media?
7. Final Decision
Do you provide for electronic help in drafting and reviewing the final decision? Do
judges use word processing programs and do they have access to the electronic files of
their opinions? Or is a judge forced to make arrangements with the court administration or
the typing personnel if he wants to make changes to a decision not yet rendered?
Some decisions require immense calculations. Do you provide for standard (spreadsheet)
or specialised programs to manage these calculations? If so, may parties and their
attorneys participate in using the calculation tools?
In which way are the parties notified of the final decision? May the decision be handed
down serviced by electronic means?
Is the publication of the final decision in a generally accessible media (like the
internet) possible, usual, or provided for? Which legal obstacles are to be taken into
account before publishing the decision electronically? Which issues have to be solved for
future use of electronic publishing?
8. Complex Litigation Proceedings
Are there special rules in your country governing complex litigation, i.e. litigation
with complex relations and many participants?
9. Appeal
In appeal proceedings we are confronted with the same issues as in proceedings of first
instance. In addition we will have to ask whether and to what extent the court of appeals
may use the electronic files of the court of first instance.
10. Execution
Execution is a proceeding on its own as far as executing force against a debtor is
concerned. To keep our reports manageable, we should not deal with execution of
judgements.
C. Other Judicial Proceedings (Non-contentious Matters)
As regards other judicial proceedings we should concentrate, for instance, on public
registers handled by courts as in Germany with respect to the real estate register
(Grundbuch) and the commercial register (Handelsregister). The practical importance of
electronic registration entries, whose existence or non existence is furnished with public
and good faith notions, increases in an environment that can be accessed anywhere and at
any time. Positive side effects of the maintenance of public records and registers in
electronic form also include the ability to handle data efficiently and effectively and
the huge reduction of space needed to store records. These positive effects are possibly
met by new dimensions of data protection issues. Effectuating information retrieval poses
the question as to who may be granted access to the information. Finally, we will be
confronted with the same issues of digitising the entire proceedings from the motion to
make an entry, the decision making process to finally having the entry performed.
I. Electronic Record and Register
Does your country provide for public records and registers, whose contents are
furnished with public and good faith, to be held and managed in electronic instead of
printed or written format?
Is there an electronic form of the register even if the official register is still kept
in writing?
Who is granted access to the registered information?
II. The Registration Proceedings
Is it provided for that the registration proceedings are performed electronically?
Is it possible to apply for an entry into the register or the deletion of an existing
entry by electronic filing?
Does the registering court manage its files and communication with the participants
electronically?
Which legal obstacles have to be considered before applying advanced technologies?
Which legal issues have to be solved?
