My colleague in the Courtroom 21 project, Professor Frederic Lederer of the Marshall-Wythe Law School at the College of William and Mary has provided an excellent view of the technology and issues which face us in the near future in the courtroom.  In this paper, I will discuss the technologies which are becoming available in the future to assist courts and judges in the administrative and decision making process.

Electronic Legal Documents

        I am convinced that the most significant technology which will impact the operation and decision making process is the acceptance of electronic documents by courts.  In the United States we call this entire subject area JEDDI, an acronym for Judicial Electronic Document and Data Interchange.  This JEDDI technology is not new.  We, in the legal field, are simply building upon the extensive work that has been done in commerce and banking to exchange electronic information. 

        Some people ask why the legal profession has been "behind" other professions in the adoption of technology.  One explanation for the delay is that the majority of court information contains symbols and words, not numbers.  Recall that the development of word processing software came almost twenty years after the first banking and financial software was created.

        Of course over the past fifteen years with the advent of personal computers and networks, the ability of computers to do more tasks at lower costs have made more things possible.  With good word processing software, now universally available, a great many of our legal documents are originated on a computer.  I would argue that when one refers to the "original document", which has some legal significance, one should refer to the file on your computer disk drive not the last printed copy.  In addition, we now have graphical user interfaces, such as Microsoft Windows, which let us easily manipulate and view information in ways not previously possible.  Therefore, judges now have the necessary automation tools to easily use the information presented.  So, in some ways, while the legal profession is lagging behind in the adoption of electronic communication, the courts are actually equal to commerce; given government budgetary constraints.

        As mentioned above, I believe that electronic documents will have the greatest impact upon courts in the processing of information in the future.  This is for several reasons.  First, it is easy to store and retrieve this information.  Many technology experts have recognized the limitation that only humans can interact well with imaged information, whether it appears on the screen or on a piece of paper.  In contrast, an electronic document can be read and searched by a computer.  We use this capability every day in electronic legal research databases such as Westlaw and Lexis in the United States.  A judge can search through millions of pages of data in seconds for the key phrase which relates to a particular statute or legal concept.  Therefore the question must be asked, why are we limiting this capability to only published statutes and case law?  Why not bring this simple capability to the trial matters?

        If simple searches for information were the only reason to argue for electronic legal documents then, the adoption of this technology will come very slowly since finding information in a case file is not necessarily always difficult.  But electronic documents give us additional tools.  We are currently exploring the possibilities of a computer document standard known as Standardized General Markup Language (SGML).  This is a terrible acronym that came from the publication industry which designed the standard.  However, SGML has one particularly interesting capability for courts.  One can "tag" information within the mass of data that is presented in a document.  This means that courts can program the computer to search through the document and extract information.  For example, software can be programmed to “read” through an electronic document, extract the “marked” information and, automatically enter it into a computer case management system.  This is important since the courts and legal profession spend large amounts of time and budget for staff to track case information.  If these tasks were automated, then this staff could assist with disposing cases rather than these bookkeeping functions.

        More importantly, electronic legal documents with SGML type capabilities can allow courts to tag key information within the document.  The computer can help us organize and retrieve important information (data which we can act upon) within the electronic document.  However, the computer cannot glean all the information or associate all references which will be important to a judge in their decision making process.  I believe that over time, tasks performed by court staff will shift from a data entry and maintenance function to one of organizing data for the judges.  Today, we have law clerks doing similar work with our current paper system.  Tomorrow, the court staff will be divided into subject organization specialists who manipulate the data into useful information.

        I would also argue that the computer with electronic documents gives us much better tools to work with.  For example, we can "link" information together.  Mr. Alan Asay of the Utah Administrative Office of the Courts presently demonstrates the ability for the computer to automatically link references to statutes and case precedent in the legal document using their CD-ROM legal research library.  The Internet World Wide Web system also demonstrates the power of data links.  A document at one site can easily be linked to any other document, even one located on the other side of the globe.  Electronic document information links will span the globe.  This is perhaps the most significant reason to standardize citations for case statutes and precedent.  But that is beyond the scope of this report.

        Author, Kevin Kelly asserts in his book Out of Control (Addison-Wesley, 1994) that the world is becoming more complex.  He calls the whole trend “moreness”.  If one views case files from earlier years, say prior to 1970, one can see that the amount of information being presented to the court today is much more than in the past.  There is no doubt that the tools which attorneys have at their disposal, including automated legal research and document assembly systems, makes their task both easier and more comprehensive.  I would venture to guess that the time taken to prepare a ten page legal brief in 1970 may be no more than it takes to compile a 50 page brief today.  Thus, the third reason for courts to embrace electronic documents is to deal with this avalanche of data.

        I try (usually without success) to separate the term “data” from “information”.  Data is the raw product that we work with, in this case legal documents.  Information is data which causes action.  We must use the automated tools to extract information from the data.  I recently consulted with a state Supreme Court.  I asked several justices about the legal briefs they read daily.  Every justice agreed that a legal brief contains a great deal of "boiler plate" language which is required either by rule or case precedent.  The justices agreed that this boiler plate could be handled either by reference or, in the case of an electronic document, by automated data linkage.  If a justice wished to refresh his or her memory regarding a standard point, it would be a keystroke or mouse click away.

        All of my discussion regarding linked documents points to the fact that we have greater flexibility with electronic information.  Paper legal documents are structured in a hierarchical top to bottom design.  The structure of the document either builds the argument in a sequential manner (just like this paper) or, presents an outline structure to discuss several different issues.  In either case the physical limitations of paper gets in the way of effectively presenting the argument.  I find it interesting to read case decisions which contain long footnotes or multiple cross footnote references.  The difficulty of navigating through information presented in this format (whether or not the footnotes are embedded or placed at the end of the document) is formidable.  Hence I would guess that most persons, myself included, make a half-hearted attempt to follow the entire document including the footnotes.  More often, I believe that most people dispense with this information.  Whether or not this is critical depends, I suppose, upon the document.  Regardless, information presented in an electronic document is more easily understood that struggling through a sea of paper.

        Please do not construe my argument for electronic legal documents as all encompassing.  I have not dispensed with all paper publications, and I still enjoy the feel of a good book in my hands.  With electronic documents and good output printing and binding systems we have the best of both worlds.  Many companies have machines which combine copiers, laser printers, and binding equipment.   Therefore, if a judge wishes to receive a case file on paper, it would be a simple matter to request a bound copy from the computer system.  The "original" case file would be secure and backed up by automation and the judge could work with a bound paper copy.  Blank note pages could also be inserted by the output system at intervals to facilitate preparation for trial or opinion creation.

        Despite these advantages there will be many implementation difficulties, some valid and many invalid in bringing electronic documents to the legal system in the future.  The greatest of these difficulties will be to coordinate international cooperation on developing standards for electronic tags, data formats, and security.  These are not technical problems, but require long-range vision and an understanding of the various implications.  Many different solutions currently exist.  However, establishment of a global standard will take time and funding.  As the global economy and hence, the global nature of law expands, the courts ability to deal with this information will also grow.  If we do not develop the tools to deal with this data, then I believe both bad decisions and bad law will result due to time constraints.

Court Workload Metrics

        We have made great progress in the study of court administration during the past twenty-five years.  The implementation of court administration and it's principles of case management have been adopted worldwide.  However, there is one area I believe deserves additional attention, court workload metrics.  By metrics I mean the measurement of the activities and results of the courts.  I believe that the time has come to revisit this subject in light of the capabilities of our automated case management systems.

        Recently, I have written a series of articles about case management systems for the Court Technology Bulletin.  In one article, Case Management - The Case (Vol. 7, No. 3, May/June, 1995), I describe the case history portion of a case management system.  Basically these systems track events which have been defined by the court as being significant and important to record.  Examples of these significant events include recording when a document was received, when a court held a hearing, or when a case terminating action occurred.  Recognize however that many cases are never completely terminated.  The court may retain jurisdiction of a case in the matter of a minor child, an estate, or for criminal probation for many years.  Currently, our basic method of statistical reporting does not reflect this work.

        Today, most courts only collect the most basic of statistics.  Typically these are the number of cases filed, pending, and terminated during a particular period.  Some courts may also track the number of trials and hearings held.  These statistics reflect only a shell of the workload in the courts.  As noted above, cases are becoming more complex.  And with more complexity comes additional work for the courts.  This work is not being accurately reflected in our statistics. 

        Being unable to record this information and share it with the other government entities (those that provide court funding) has hurt the courts when arguing for increased resources.  In the past decade, business has focused on a similar problem.  Of course, W. Edwards Deming recognized this need to track, evaluate and share information over forty years ago.  The works of Peter Drucker have also highlighted this need.  But courts have been slow to recognize the possibilities that automation presents.  I believe this is because we concentrate on the end product, which we hope is justice.  Justice, a very difficult product to quantify, has stood as a mental barrier in the way courts view the quantifying of the process.  With this in mind, I believe that we must separate the quantifying of the process from the qualifying of the result.  If we attack each with different tools then we will be able to present and argue the court's needs more effectively.

        I propose that the current system of court statistics either be enhanced or replaced with a method of counting events.  In automated case history systems we usually define a code for each type of court event.  These codes are often used as a "short cut" for data entry since most court events are defined by rule or law, and are repetitious from one case to the next.  In modern systems this event code can be "rolled up" for statistical purposes and associated with a second, standard event code.  This would allow individual courts to continue to define their own case events for their case tracking needs while allowing central court administration to standardize more reflective case workload reports.  While this may not perfectly represent the activities of a specific court, it is much better representation than the raw statistical counts we have today.

        Counting case events has the great advantage of reflecting the amount of work done in a court regardless of whether the case is actively being adjudicated or, is in some other type of process either pre or post.  An event is some type of work in the courthouse.  When accurately defined, the work counts can be collected to analyze the process.  One could look at the number of matters being brought before a particular court, the way the court is doing their business, the time between events, and secondarily, relate these events to the persons doing the work.  Thus as courts prepare their budgets, they can show the amount of work being performed regardless of case type.

        Some might argue that a court could manipulate the event counts by creating their own events through the production of additional notice letters, warrants, and other court generated proceedings.  I counter that the central administration could prevent this from occurring by defining the "rolled up" statistical events.  These events would be grouped together, thereby negating any statistical advantage.  Therefore, courts which either require or produce inordinate amounts of paperwork could be more easily identified and corrective action taken.

        The other improvement in case statistical information is to improve our ability to determine qualitatively the difficulty of the case before us, the results of courts actions, and the perception of the litigants that justice has been achieved.  In this paper I will not discuss the latter.  That subject is being addressed through victim and post adjudication surveys. 

        I believe that it is a difficult task administratively to determine the complexity and either identify issues or assign a quantitative weight to a case at filing.  Many court case management systems have the ability to track  issues being brought in the case.  In the United States, West Publishing Company in Minnesota has developed the Key Number system. The basis of this system is to assign an issue or subject categories to statutes and case law.  Both of these types of systems require significant trained resources to implement properly.  West spends considerable time and effort training their attorneys on the assignment of Key Numbers.  In many courts it is not possible to devote the necessary legal resources to this task.  I have only heard of a few courts where this has been successfully implemented.  Most courts are simply unable to make it work.

        Similarly, some courts have tried to assign a case weight or a quantitative number to a case to reflect it's complexity or priority in the system.  Prioritization has been very successful in the management of cases.  In these systems litigants know the set of court rules they must follow to process the case.  When litigants know the rules they play by them.  But the assignment of a quantitative number which reflects the difficulty of a case has been less successful.  Weighted cases have several advantages.  Chief among them is the identification of cases for scheduling.  If one judge has a difficult case which has a weight of fifty, then that judge's work could be compared to a judge with five cases each with a weight of ten. 

        The problem is: how could this assignment of weight be made expertly and without bias?  I believe however that with modern case management systems and their event tracking capabilities it could be possible to collect trend information which would help courts to assign these weights.  The combination of electronic documents and trend information could allow the development of artificial intelligence systems to analyze the case and assign the weights.  Of course the case weight could be overridden by the court, but over time, it could become a valuable tool for case identification and assignment.

 Conclusion

         Computers and electronics provides the legal system with tools which have never been available before in the history of humanity.  Electronic legal documents and information derived from the case management systems and electronic communications provides us with vast amounts of information.  It has also increased the complexity of the matters and the information presented to the courts.  Therefore, it is up to us as judges and administrators to use those tools effectively to determine the truth and dispense justice.  Without the abilities of the practitioners of law these tools will be useless.