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1 JOHN GREACEN: One comment to Tom. At a
2 presentation on those computer generated animations or
3 re-enactments yesterday at another conference that's
4 going on here in Tucson, I was told that those used to
5 cost 500,000 to create. Now you can buy the software to
6 do them yourself for 10,000. So that is still -- 10,000
7 is still a good bit of money, but it's no longer a half
8 a mill. And if the law firm bought the package once --
9 and you would have to buy a staff person, as well -- but
10 that issue of the economic fairness in presenting the
11 evidence may go away over time.
12 The presentation that I'm going to give you
13 deals with court rules. And how court rules have
14 incorporated technology. It's based on some research I
15 did about nine months ago for a national conference on
16 court technology.
17 But this is what I'm going to cover briefly.
18 Why are rules important in this context? What subjects
19 have been covered by court rules? What do those rules
20 provide? What problems have arisen? How can we improve
21 the process? And what are the issues for the future?
22 Start with disclaimers. First, I'm a federal
23 court clerk, but I don't speak for the federal courts, I
24 speak only for me. I have some of my federal court
25 colleagues here and they will affirm that when I speak,
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1 John Greacen only speaks for himself.
2 The information is based on a survey of state
3 court administrators, not on my own research in WestLaw
4 to catch every possible use of the term technology or
5 electronic.
6 And it's based on published rules of procedure
7 and not internal sources of court authority like local
8 rules or a judge's ruling in a particular case.
9 This is what I found. That rule changes are
10 needed to allow courts to introduce new technologies;
11 that they will be needed even more in the future to
12 require the use of those technologies in standard ways;
13 that as far as far into this as we have gotten we have
14 gotten relatively few rules; and when adopted the rules
15 tend to have two pernicious qualities, they require
16 redundancy and we always require more in the way of
17 safeguards of a new technology than we did of the old
18 that it's replacing.
19 For instance, in redundancy, when most courts
20 allow you to file by FAX, they require you to send the
21 written document within 48 hours. Now, is that stupid
22 or is that stupid? It is not saving anything, it is
23 putting a double burden on the court. It is creating
24 potential evidentiary problems. Was it really filed if
25 it came by FAX and the paper came 49 hours later? If
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1 there was a change, which is the real document?
2 And of course, in the FAX technology, there
3 really is nothing different between those pieces of
4 paper, the one that came on the FAX and the original
5 sent later.
6 Unique safeguards. If we allow notice by
7 FAX -- or take a better one, electronic filing. We have
8 always assumed that a document mailed reaches its
9 destination. That's one of the most often wrong
10 assumptions in the law. But we live with it and it
11 works. And we know how to deal with the problems
12 created when a lawyer does not get served with a copy of
13 a pleading because it got lost in the mail.
14 But, when it comes to serving electronically,
15 we now require enormous precision in the new technology,
16 so that it could not possibly ever happen that something
17 sent electronically was not received in exactly the form
18 in which it was sent.
19 And a return receipt that it was so received
20 is returned to the sender.
21 We'll talk a little bit more about this. But
22 let's start off with why are rules important.
23 We live in an adversarial process in the court
24 system and the rules set the basic ground rules. And to
25 a great extent, they define the available methods. They
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1 limit the technologies that are used.
2 When the rules say you may file a paper, most
3 judges and court clerks will say: If it ain't a paper,
4 it can't be filed.
5 And the rules are the usual vehicle for
6 mandating new procedures.
7 These are the general subjects that I found
8 have been covered in state and federal rules. FAX
9 filing, FAX service, video arraignments, videotape
10 depositions, audio and videotaping to make the trial
11 record. The filing of an appellate transcript in
12 electronic form. Telephonic depositions. Telephonic
13 appearance in court and telephonic testimony.
14 Electronic filing. Electronic noticing. And electronic
15 collection of child support.
16 What you don't see here is any rules relating
17 to what this conference has really been about, which is
18 the use of technology to enhance the lawyer's
19 presentation of matters in evidence, or in argument
20 before the court.
21 Those have almost always been matters of the
22 trial judge's discretion. They have not been covered by
23 court rules, they're not covered by court rules today.
24 And I assume, from what I've heard here and elsewhere,
25 that there is not a big problem in getting the judge to
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1 let you use automation in the courtroom to enhance the
2 presentation.
3 There are problems with the admission of
4 evidence generated by computers. There are also lots of
5 problems of getting computers in the front door of the
6 courthouse, given the security rules. But if you can
7 talk the clerk or judge into issuing an order to allow
8 you to get past the guard at the front door, you don't
9 have much problem setting it up.
10 Am I wrong in that?
11 All right, let's go on talking further about
12 what rules there are.
13 Oh, here's a final one, electronic records for
14 archival purposes.
15 Many of the rules deal with FAXes. I'm not
16 going to talk much about them today. It's one of the
17 extraordinary things that you can order a pizza by FAX
18 but you can't send a document officially to another
19 lawyer by FAX.
20 Only 12 states allow FAX filing. The feds
21 don't allow FAX filing except in an emergency. In fact,
22 the feds prohibit a court from establishing a local rule
23 allowing FAXes routinely.
24 This is my favorite FAX rule that I found. I
25 like simplicity and elegance in a rule. This one never
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1 even uses the word FAX, but it was designed to allow the
2 court to accept documents that come in through a FAX.
3 Video depositions are now widely authorized in
4 rules. Some of them require court approval in advance,
5 others do not. These are the kinds of things that are
6 covered in these rules that the videotape operator will
7 administer the oath, that the operator will give some
8 certification of the videotape that the taker of a
9 videotape by -- of a deposition by videotape is
10 required to give a copy to the opposing party. That the
11 video deposition will be included as a videotape in the
12 record on appeal. Except in Kentucky, where for some
13 reason judges, appellate judges will watch videotape.
14 If you're going to use parts of a videotape deposition
15 elsewhere in this country, you have to make a transcript
16 of the videotape.
17 One interesting rule required the custodian of
18 the tape to edit it to strike testimony ruled
19 inadmissible during pretrial proceedings.
20 My favorite in terms of discouraging the use
21 of a technology is in New Mexico where a judge
22 authorizing a video deposition for a minor sexual
23 assault victim must be present at the taking of the
24 deposition.
25 Video arraignment rules have been in place now
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1 for a considerable period of time. Most states still
2 allow the local court to establish or allow it at the
3 trial judge's or the court's discretion. In some cases,
4 the defendant is required to waive the right to be
5 personally present in court in every instance; in other
6 states that's not required.
7 The type of proceedings which can be conducted
8 in this way vary widely. Most are limited to initial
9 appearance or arraignment. Some include a misdemeanor,
10 even felony sentencing after a guilty plea. Missouri
11 includes civil proceedings involving inmates other than
12 jury trials.
13 A couple of states require that the video link
14 be of commercial television quality, that really jacks
15 up the cost.
16 Many deal with the ability of the judge,
17 defendant and counsel to interact, including the ability
18 of defense counsel and the inmate to have confidential
19 communications outside of the hearing or observation of
20 the judge and counsel on the other side.
21 In New Hampshire, that communication must be
22 through an encrypted phone line. In other places there
23 is a requirement for a FAX machine capability for
24 defense counsel and inmate to communicate on paper
25 confidentially.
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1 And there are also a number of rules requiring
2 that these tapes be maintained for some period of time.
3 For audio and video taping of the trial
4 record, this is in lieu of a stenographic record, a
5 number of states now allow this. As I said before, only
6 Kentucky allows the videotape itself to be the record on
7 appeal. Most of them allow a local court to decide to
8 use it or not.
9 They require the creation of a duplicate tape,
10 a chain of custody requirement in the clerk's office
11 concerning the tape, require the judge or another court
12 official to maintain a log that would allow you to
13 quickly find places in the videotape.
14 They would require -- at least one state
15 requires a photograph to be videotaped so that it
16 becomes part of the videotape, rather than a separate
17 exhibit.
18 Most say that the tape, the videotape is the
19 official record, but the transcript must nonetheless be
20 prepared to assist the appellate court to review it.
21 The one state that I found that has a
22 requirement that the transcript be submitted in
23 electronic form, as well as paper form, says that the
24 reporter must provide the transcript to the parties in a
25 computer searchable disk and ASCII format and the party
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1 must a supply the transcript to the appellate court upon
2 request in that same electronic form. This is so that
3 appellate judges could search the transcript themselves
4 using some sort of a search protocol.
5 Arizona, Gordon here is in the lead in another
6 area, allowing depositions generally to be taken by
7 telephone, rather than in person, without specific court
8 approval.
9 The Arizona rule says that the location of the
10 deponent, that is the one being deposed, is the place of
11 taking the deposition for purposes of what court do you
12 go to if there's a question about the conduct of the
13 deposition.
14 There is an Arizona juvenile rule that allows
15 the judge to accept testimony over the phone, in the
16 judge's discretion, in dependency and parental rights
17 termination cases.
18 There's a rule in Michigan that allows
19 telephonic testimony with the consent of all parties and
20 court approval in a motion hearing, pretrial hearing or
21 a status conference.
22 Washington state allows arbitrators to conduct
23 mandatory arbitration by phone. And a Wyoming rule
24 allows testimony by electronic means in criminal cases.
25 It doesn't say any more than that. That, I assume,
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1 would allow a witness to testify by phone, although
2 you've got some confrontation questions there.
3 There are many courts that are conducting
4 conferences by telephone and allowing counsel or parties
5 to appear. I didn't find those in the rules. That's
6 just by local practice.
7 The electronic filing rules are pretty
8 complex. How many of you heard of the CLAD project in
9 Delaware?
10 I've got a maybe a third of the people. CLAD
11 is a partnership between Lexis and the Delaware courts
12 where parties in designated cases file all of their
13 pleadings in a special Lexis electronic file. They are
14 charged a fee for being involved in the case, they are
15 charged a fee for each filing, and they -- the file in
16 the case is the Lexis electronic file. Anybody who
17 wants to read anything in that file dials into Lexis,
18 has to have authority to be in that file but then can
19 read any document.
20 One interesting aspect of it is that the
21 filing process includes the creation of the docket. The
22 filer not only submits the document but sends a little
23 note with the document that contains the name and that
24 name, together with a sequential number for the document
25 and the date of filing, becomes the docket sheet. So
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1 anybody can scroll through the docket sheet and search
2 it, as well.
3 The federal courts have had a couple of
4 experiments with electronic filing. The one in
5 Philadelphia to me is laughable. A couple of firms are
6 doing this. But they submit to the court in advance
7 signature pages, just a piece of paper with the lawyer's
8 signature on it. Then the law firms sends a pleading
9 and the clerk prints out the pleading, reaches under the
10 counter and pulls out the signature page, staples it
11 together and files it. And that's electronic filing.
12 San Antonio's process is a bit more
13 sophisticated -- a lot more sophisticated. There's an
14 agreement between the law firm and the court about the
15 filing and the binding effect of anything sent
16 electronically.
17 In neither Philadelphia nor San Antonio has it
18 really taken off. There has not been much interest in
19 filing electronically.
20 In Utah, they're trying to use off-the-shelf
21 technology with what is called SGML and a public key
22 encryption technology to do filing. They're doing it
23 still on an experimental basis. It's a very interesting
24 experiment, and apparently it's working pretty smoothly.
25 Electronic rules dealing with archiving
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1 address two principal questions: That is, adequate
2 safeguards for the preservation and integrity of the
3 record and adequate public access. The key question
4 here is the future. What happens when the software and
5 the equipment on which an electronic record was created
6 is no longer existent or maintained or supported?
7 Yes, we have the electronic file, the data,
8 the raw data itself, but will we, in the future, be able
9 to read something that was produced on a -- one of those
10 old -- what was it, 8088s or when Macintosh is gone and
11 what will happen to all of those records that were --
12 WINTON WOODS: You mean like today, John?
13 JOHN GREACEN: No, there are those who love
14 Macintosh so devoutly that it will not be until this
15 generation at least is over that Macintosh will be gone.
16 WINTON WOODS: We have one in the room.
17 JOHN GREACEN: There are several more.
18 So, we have examples of progressive rules.
19 But overall, these are examples, but they're not
20 widespread. There are generally very few of these
21 rules. And they require, as I said, the maintenance of
22 redundant manual procedures and they often require more
23 safeguards than the old technology that they replaced.
24 Why is this? We've tended in the courts to
25 focus on the use of automation within the court family,
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1 automating the clerk's office. Most of these rules deal
2 with the relationship between the court and the outside
3 and the law firm and the relationship between law firm
4 and law firm. So that has -- is secondary to the courts
5 after our own automation.
6 The rules process itself is slow and
7 conservative. We all tend to think in terms of a paper
8 and a courtroom paradigm. The rules are all written
9 with the words and phrases and images of papers and
10 places.
11 We've been skeptical of new technologies. The
12 people who write rules are judges. Sometimes they'll
13 ask the lawyers' opinions, most times not. But the
14 judges are not the people who know most about technology
15 in today's world.
16 There are very few powerful advocates for
17 change. And in terms of this tendency to require more
18 of the new technology, the interesting thing is the new
19 technology actually makes those safeguards possible.
20 The question is whether to go to the lengths
21 that the technology will allow you to do. For instance,
22 in this public key encryption technology, allows us now
23 to be certain not only that a document came from a
24 specific person but that the document transmitted is
25 identical to the one received in every jot and tittle,
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1 every comma, space, every character in the document. We
2 could never do that in a paper technology, but we can in
3 the electronic. The question is: Should we require
4 that before we go to electronic filing?
5 Well, here are some suggestions. How can we
6 make this better? We can get the rule makers to be
7 aware of their biases against new technology. We can
8 get states to adopt permissive rules allowing the major
9 questions to be decided in the administrative arena,
10 rather than in the rule making arena.
11 This is what is happening in the federal
12 courts. Federal courts are passing a series of rules.
13 A court by local rule can allow electronic filing or can
14 accept -- can make the rules about what qualifies as a
15 signature, if those rules are consistent with policies
16 established by the Judicial Conference of the United
17 States. That moves those questions into the judicial
18 conference rather than the rule making process.
19 There are at least five states -- Arkansas,
20 California, Florida, Idaho, Indiana and Kansas -- that
21 have created technology advisory rules committees to
22 assist the courts in coming up with these kinds of
23 rules.
24 Here is an example of a permissive rule, like
25 the federal courts rules.
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1 Get the idea?
2 The permissive rules invite the use of new
3 technology at the local level, they remove detailed
4 procedures from the rule making process, and they use
5 the flexibility of the administrative process.
6 The weaknesses are that the rule making
7 process requiring a lot of public notice and opportunity
8 for comment are eliminated from the administrative
9 process and as a result, the administrative process,
10 unless it's thought through carefully, may be even more
11 isolated than the rule making process.
12 The advisory committees have a broad range of
13 composition. I think they're best if they have the
14 broadest range of composition, including particularly
15 people from the public sector who have been involved in
16 the use of these technologies in ways that the courts
17 tend to lag behind.
18 The functions of the committees are to bring
19 in diverse perspectives, to gather information, conduct
20 pilot projects, draft proposed rules, to provide
21 legitimacy to the proposals, and to become advocates
22 within the court process for the adoption of new
23 technologies.
24 Their strengths are diversity of use,
25 legitimacy, that they are advocates for change, and that
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1 it's a mechanism appropriate to this task.
2 The weaknesses are that many judges would see
3 this as removing or diluting their authority. Yes, they
4 ultimately have the right to adopt or reject a rule, but
5 they are put in a much more ticklish political posture
6 if a rule is served up to them that they don't want to
7 adopt. And there is a need to coordinate the rules
8 process with the technology aspect of things.
9 Here are the future issues that I see coming
10 down the pike, many of which we have already talked
11 about. We have the perennial lawyer-clerk problem, our
12 fixation on original signatures. I think this is not a
13 problem, it's just one that we create.
14 A huge issue in the next five to ten years is
15 the courts turning around from allowing people to use
16 technologies to requiring the use of those technologies,
17 and it ultimately comes down to the problem of redundant
18 processes in the court.
19 If we have -- first will allow electronic
20 filing and then we're going to get to the point where we
21 don't want to keep the paper anymore and we're going to
22 require people to file things electronically. We're
23 going to deal with new subject matters. We deal with
24 the issue of fees, and an increasing pressure for
25 public/private partnerships.
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1 Here are the different ways you can solve the
2 original signature problem. One, you can just get rid
3 of it. This is my favorite rule of all, from Ohio, that
4 any signature on an electronically transmitted pleading
5 or paper is by law considered that of the attorney or
6 party it purports to be for all purposes, just like it
7 is on the paper.
8 If it's established that the pleadings or
9 papers were transmitted without authority, the court
10 will order the filing stricken. This says in that one
11 hundredth of one percent of the instances where there
12 might be a problem, the judge will deal with it.
13 Another approach is to require the transmitter
14 to retain the signed original. So if there's ever a
15 question about the authenticity of the signature, you
16 would have a place to go.
17 Another is to require standing agreements, as
18 in the federal court process in San Antonio, that
19 defines the binding character of the electronically
20 submitted document.
21 We actually have the technology now to include
22 the signature as a graphic in a document. So you can
23 actually send your signature. It makes things more
24 complicated, because now you have to combine the word
25 processing and the graphic part of a document. It can
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1 be done.
2 You can use what is called an EDI protocol,
3 electronic data interchange protocol, like the banks use
4 to send billions of dollars around the world. If they
5 can send a billion dollars, why can't we send a motion
6 for extension of time?
7 Or you could use this public key encryption
8 technology that I just mentioned very briefly that
9 allows the ultimate in authentication of the sender and
10 the contents of the document.
11 Mandating use of new technologies. You
12 already see where that's going.
13 Here are the new subject matters that I see.
14 We've already had a discussion of technologically
15 sophisticated evidence in the sense of video
16 re-enactments. What happens when we want to introduce a
17 manufacturer's whole record keeping system as evidence
18 of the prices that the manufacturer charged over a
19 period of time? How do we do that?
20 Maryland has just put in a new rule that
21 creates a hearsay exception for electronically recorded
22 prior inconsistent statements.
23 Gordon has talked about the virtual courtroom
24 in terms of space and time. Another major problem that
25 we're running into is questions of public access to
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1 electronic databases.
2 In Washington state, the courts have taken a
3 very negative view. They have said you have a right to
4 access to paper, but that does not extend to electronic
5 information.
6 In Florida, they've taken exactly the opposite
7 view.
8 New Jersey is creating a committee to look
9 into this.
10 The federal courts have struggled with it, and
11 I think most of us want to try to put off the problem as
12 long as possible.
13 One of the problems is that data in an
14 electronic format, in a database format, can end up
15 being much more embarrassing to the court system than
16 data put in individual pieces of paper that is very hard
17 for somebody to put together.
18 For instance, time from filing to disposition
19 of cases is very easy to calculate if you've got the
20 database; it's very hard to calculate if have you to go
21 look up every piece of paper. And the problems of
22 archiving will only get worse as the pace of change in
23 technology gets faster.
24 Fees are problems in this way. There are some
25 courts that look at the introduction of a new technology
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1 as an opportunity to make money, and actually see it as
2 a way of generating revenue for a hard pressed system.
3 Is that what we want to do, to burden new technologies
4 with the additional burden of being a source of
5 supporting the court system?
6 Do we want to try to calculate what benefit a
7 new technology provides to the user and then try to
8 capture that benefit?
9 Do we want to try to get the -- a fee that
10 reimburses us for the cost of introducing that
11 particular technology, like a turnpike toll that
12 theoretically would go away once the turnpike is paid
13 for? Theoretically.
14 Or do we want to consider these new
15 technologies as part of the court's responsibility for
16 public service?
17 The public/private partnerships, I've already
18 explained one of them, the CLAD partnership, which for
19 me as a court administrator has some problems because
20 all of a sudden I wake up to find that my records don't
21 belong to me, they belong to Lexis and all of the
22 documents now reside in Meade's computer and not in the
23 courthouse at all.
24 But how are we going to get the capital
25 together and the expertise to make these major strides
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1 without involving the private sector?
2 Another example that's coming up is in courts
3 that refuse to accept FAXes directly into the court.
4 Many of them are now authorizing FAX filing through an
5 intermediary.
6 That is, if you're -- in the case of New
7 Mexico, if you live in Alamogordo, you can FAX a
8 document to the court's contract copy center, the copy
9 center will make a copy, as many copies as needed, of
10 that document, attach any filing fee and file it for
11 you. We don't consider that a FAX filing, that is an
12 ordinary filing.
13 In the federal system, we now have a contract
14 with a private vendor to do noticing in bankruptcy
15 cases. They will do it better, faster, cheaper than
16 individual clerk's offices are able to.
17 Ultimately, we may get to the point that we
18 have private vendors coming in and saying: We can run
19 the clerk's office a lot better than public employees,
20 cheaper, faster, better. Is that ultimately where this
21 thing is headed?
22 My final thoughts are, let's just do it.
23 Let's get more of these rules. Let's move into the --
24 not the new technologies, most of what we're talking
25 about here are, as Woody has pointed out in this new
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1 courtroom, technologies that are available easily on the
2 market.
3 Let's try to do it better than the rules that
4 I have told you about, and if possible, let's keep
5 things simple and elegant.
6 Thank you.
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