Federal Courts Work on their Archives

Another excellent article in the US Federal Courts newsletter. The Third Branch from their May, 2011 edition shares news of recent work being done by the Judicial Conference Committee on Court Administration and Case Management Records Subcommittee.

The article, Making Room-Saving History, summarizes work being done by the Federal Courts with the National Archives and Records Administration (NARA) to reduce the massive accumulation of records that "cost the Judiciary over $6.2 million last year".

The article notes:

""Records had accumulated for decades and had become an unmanageable mass," said Judge Steven Merryday (M.D. Fla.), then chair of the Records Subcommittee, part of the Judicial Conference Committee on Court Administration and Case Management (CACM). "With the potential of rising storage costs, we were facing catastrophic budget consequences." Merryday's subcommittee began by looking for ways to preserve what needed to be kept and what could be disposed. They sought the advice of the head of the National Archives and court representatives. The subcommittee went over, code by code, what would be found in a file, and agreed on what should be preserved. Then they made their recommendations to the full CACM Committee and then to the Judicial Conference."

The article further notes:

This is the first time in more than 30 years that NARA has been able to dispose of any federal court case records. They've begun with paper civil case files dating back to 1970. But before they dispose of any files, courts have the ability to designate "non-trial temporary case" files between 1970 and 1995 as historic. These files will be retained and stored. All cases filed at any time that proceeded to trial, and all cases filed before 1970 are automatically designated permanent and will not be destroyed. The remaining cases will be indexed and become easier to access.

What is considered historically significant? The CACM Committee, working with NARA, federal judges, historians, and academics, proposes that certain case records be designated permanent. Cases of historic significance would involve particular issues such as state reapportionment cases, civil rights voting cases, treason, national security, family farm and historic bankruptcy cases, and death penalty habeas corpus cases. Judges and clerks of court also are asked to designate cases that:

• Involved a lawyer, litigant, or witness of historical interest or importance;
• Involved an issue of historical interest;
• Involved a matter of national interest separate from the issues in the litigation; or
• Received substantial media attention at the time.

Several state courts have done similar work including promenently the New York State Judiciary Records Management program.  For a list of their policies click here.

Wireless Device Guidelines for Federal Courts

The April, 2011 edition of the Federal Courts Third Branch newsletter contains a timely article: Wireless Device Access Guidelines Strike Balance.  The article begins:

“The American public loves the convenience of their wireless communication devices—PDAs and laptops, smart phones and earpiece devices, among others. It’s estimated there are 285 million cell phone users in the United States.

However, the same devices that provide convenience in communications may raise security concerns in federal courts and possibly disrupt proceedings. Courts have responded with a variety of access policies.

To help strike the right balance between security concerns and convenience, the Judicial Conference Committee on Court Administration and Case Management, in consultation with the Information Technology Committee and the Judicial Security Committee, has issued revised guidance for courts to consider that updates how new technologies could be used and what this may mean for courts.”

Documents as a Two Way Street

Electronic document software should be able to do more to help us do our work in the courts. One problem has been the current inability for the software that has been implemented to be able to work together. For example, when a judge creates an order, they most often create the document in a word processing program, save it; possibly convert it to  PDF; then in turn it is ideally e-filed or less ideally, scanned or printed. Then the data is manually entered into the case management system (CMS). No wonder many court users have a dim view of automation “productivity” when put through these multiple and often confusing steps? But it doesn't have to be that way.

All major word processing and forms software has the ability to merge data from a database into a document when created. Many CMS have been doing this since the early 1980’s via mail merge functionality. But most don’t realize that one can identify data entry fields (see this Microsoft Word example article) so that the data can be “read” for data entry by the database. Therefore the new scenario could be: first, the judge or clerk would select the document to be created; the database in turn would be called upon to complete/merge the known data into the document. When complete, the data added by the user would in turn be read by the system and automatically entered into the CMS database. This helps the judge/clerk accomplish their task and, avoids the need for subsequent data entry and other steps. This is the two way street. But just as important, the document itself should be automatically stored or attached as part of the CMS database so that it is an integral part of the court record.

In other words, this approach minimizes multiple steps as well as complexity. And since the major technology vendors have provided the ability to do full text search of documents stored in their databases, the court users can retrieve document data both through the case number but also using “Google” type searches. For discussion of Microsoft database search capabilities click here and here and for Oracle click here.

Bottom line: the technology vendors have been working hard over the past decade to make things work together… it is up to court technology developers to use that capability to benefit the daily work of the judges and court staff.

E-Filing / E-Reader Notes

Western District of Virginia Federal Court

Courts are starting to express addition control over the form and format of E-filed documents.  For example, via Virginia Lawyers Weekly we learn that the Western District of Virginia District Court has requested that large scanned PDF attachments be handled separately and submitted in separate 10 MB file attachments. The complete court rule can be read here.

Texas Appellate Courts¹

The Supreme Court of Texas has made E-filing a promenant place on their website.  In addition to the link to their rules, there is a link to a paper by attorney Don Cruse and Clerk of Court Blake A. Hawthorne's paper: Appellate Briefs of the Future that contains excellent guidance on preparing "e-briefs".  Attorney Cruse' further provides valuable information via his SCOTXBlog including a call for comments on how e-briefs are really being used.

US Supreme Court

And last, in an article we missed late last year we learn that two US Supreme Court justices have been using e-readers, the iPad and Kindle.

Notes:
(1) Thanks to Kendall Collins Smith and her OneLegal Blog for this lead

Trust and E-Filing

There is a significant differentiation between e-filing systems design to address inherent issues between trusted and un-trusted E-filers.  Let me explain:

An article by former Public Broadcasting System “pen-named” columnist, Robert X. Cringley. "The T Word" discussed the concept of trust.  He wrote:

“(T)rust is … based on one of two methodologies — empiricism or transparency” The essence of empirical trust in this instance is “I trust because I don’t need to trust because I am (or soon will be in the rube scenario) immune to harm.” This immunity comes from a mathematical proof, whether that proof is provided by a strongly encrypted password on a computer file or by the hedging of counter-parties in some complex financial derivatives play. Empirical trust is a zero-sum game.”

“Trust through transparency is a completely different creature based on the novel idea that people say what they mean, do what they say they will, and make things that work because you can see how they work inside.”

E-filing systems that are based using Electronic Filing Service Providers (EFSP - see note 1 below)  are essentially empirical trust systems.  The courts have “hedged” their risk by allowing the EFSP to validate the filer and handle payments.  In turn if the EFSP charges their fees via credit card that later default, well they have hedged that risk/trust via the credit card service company who absorb the loss (as would the courts if charged the credit card directly).

Also an EFSP could be another government agency that the court implicitly trusts and vouches for their user community.  A prosecutor, social service agency, or law enforcement department would maintain their authorized user access that in turn would provide identification verification for e-filing.

Finally the court themselves could develop their own “circle of trust”(2)  as have the US Federal Courts who validate their e-filing users via a sign-up and training procedure.  For example, the US Bankruptcy Court in San Diego explains on their web page that “to become a CM/ECF Registered User that one must register and complete the assigned training”

But what about E-filers, such as the self-represented, who do not use an Electronic Filing Service Provider to vouch for them?  They will have to be initially viewed as un-trusted E-filers.  There is a very old but true saying that came from a New Yorker magazine cartoon  “On the Internet, nobody knows you are a dog”.  The fact of anonymity has been a boon and curse to the users of the Internet.  In our case it is a curse because we must have reasonable assurance that the person submitting the electronic is in fact that person (or authorized person).  The risk of “spam” filings and other type of network attacks is real.  Thus since the goal is to make e-filing as accessible and convenient to use for as many persons as possible, these issues and limitations must be addressed by technology, rules, and procedures.

Some of these problems may be addressed by initiatives in many countries to create secure online identity.  For example, in April, 2011 the USA President, Barak Obama issued a "blueprint" for creating a system of digital identity.  When such systems are developed they will be of great help to the courts in adopting and implementing E-filing.

Notes:

1) EFSP - Texas ( eFiling for Courts ) and others have developed e-filing systems based upon the concept of statewide portal with the end users being serviced by private corporations known as Electronic Filing Service Providers or EFSP.

2) The “circle of trust” quote is from the film – “Meet the Parents”:  http://www.imdb.com/title/tt0212338/

3) The graphic accompanying this post is based upon the excellent graphics illustrating collaboration concepts published at: http://emergentbydesign.com/2010/07/01/guidelines-for-group-collaboration-and-emergence/