America's Courts - Technological Challenges Abound - Is a Revolution Required?

02
Jul
2012

As we celebrate Independence Day and our country's freedom, we must ask ourselves, how do we continue to sustain and support these liberties that our forefathers afforded us? Our justice system is of great and immediate concern to most of us in this regard.  As legal professionals, whether we are lawyers, para-lawyers, judges, court administrators, law clerks, law students, legal administrators, members of legal support staff or legal vendors, we rely on the mechanisms of the justice system to serve our constituents. The hope is that somehow, someway, justice can be served each day at our courthouses in a fair and equitable fashion.

Our nation's courts are grappling with a warp-speed technology cycle that not only has effects on the services they provide citizens but the enforcement of laws. One only has to read the daily headlines of leading newspapers to learn about the challenges of privacy issues associated with the use of technology and most especially eavesdropping laws - just one narrow issue that has a domino effect of law suits and court challenges. eDiscovery has grown into a multi-billion dollar industry over a very short period of time and all legal professionals are struggling to keep up with the ever-changing landscape.  Court documents and data, at one time, only accessible at the courthouse or through guarded and secure systems from LexisNexis and Thomson Reuters Westlaw, are now accessible to almost anyone with an Internet connection or smartphone. Redaction of private and incriminating data has become a critical demand of the courts.

Not only is the ability to keep up with technological trends a tremendous test for the courts, but also in almost every jurisdiction, funding has been significantly cut.  At the same time case loads are increasing and greater scrutiny is exercised with regard to private vendor contracts with the courts. And some vendors may shy away from court contracts due to the potential low profit margin and slow cycle of payment by government contracts.

Most state court administrative offices are ill-equipped to handle today’s sophisticated level of technology and tend to lean on the conservative side of decisions which can be more costly for the courts. What comes from most state AOCs are suggestions without mandates, so the adoption of technology practices, e.g. eFiling, are barely effective and adopted by few.  Elected court officials trend toward making technology decisions to get themselves re-elected, but these cost court staff twice the work because the legislature can't keep up with modifying statutes, and/or judges are insistent that paper courtesy copies be hand-delivered.

Standards have been recommended by groups like OASIS - Legal XML standards, and NIEM (National Information Exchange Model) – but are barely being adopted by the courts and court agencies.  Not only do private law firms grapple with case management discrepancies of data, but more importantly, government agencies that work in parallel with the courts are having very limited, if any, direct data connections to the courts. Often entry of the same data is duplicated, quadruplicated, etc. even though simple standards and the use of secure web services could eliminate hours of unnecessary work.

So how do we help the courts? How do we help government agencies that are tied to the courts? How do we help the private sector? How do we help the pro se litigants?

Just like in 1776, a full-out, drastic, technological revolution for the courts and its sister agencies is what is needed to save our courts from great peril.  Sounds dramatic and dashing, does it not?

How about establishing a Peace Corps-like army of IT college grads and post-grads, arming them with the knowledge they need to get our courts on track and deploying them to every state and federal court in the nation?

What about creating an open source repository for the courts to give them the code sets necessary to build the infrastructure and services to match the current and future technological demands?

Can't we mandate adoption of data standards in a realistic timeframe so court and interagency communication can take place - and also include the private lawyers and law firms so they can also take advantage of the data interchange?

How about funding this in a creative manner so it doesn't cost any one, particular entity - the public, the private sector or the courts themselves - a large chunk of money?

I don't think we can deny that groups like the National Center for the State Courts and the National Association for Court Management are good at supporting the courts, leading them to some very solid solutions, and providing best practices for court technology. They can continue to help guide the standards needed and technological architecture and provide the lessons learned from various courts when implementing technology.

Over the years, as I have watched court technology crawl along, it's obvious that only a revolution and a concerted, relentless effort can get us to a point where we can faithfully say under our flag, "I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all." Yes - swift justice for all!

Here are some additional resources:

Future Trends in State Courts - a series of articles from the National Center for the State Courts

eDiscovery resources:

Managing Discovery of Electronic Information: A Pocket Guide for Judges, Second Edition Barbara J. Rothstein; Ronald J. Hedges; Elizabeth C. Wiggins

Sedona Conference

Editor’s Note: Dave Glynn is not only a legal technologist, he’s also a songwriter and performer – click here to hear him perform his suitably patriotic original song, ‘Independence.’