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In 2006, the United States Court of Appeals for the District of Columbia held two days of oral arguments in the Microsoft antitrust case. While the arguments themselves were interesting, what was also noteworthy is the way in which the hearing was conducted.
In the first place, the judges required that both parties in the case file their briefs on CD-ROM. In all, four disks were filed in the case. So others can see what an electronic brief looks like, RealLegal, which produced the disks, makes a public version of Microsoft’s first appellate brief available through its Web site (www.reallegal.com), complete with 6764 hyperlinks, 12,250 pages of trial transcripts, 317 exhibits and 27 minutes of video.
The second matter of interest is the way in which the courtroom was wired. Each of the judges had a laptop to access the CD-ROM briefs and to log onto Westlaw and Lexis online legal databases. On one side of the courtroom sat the law clerks with their own laptops so that the judges could send them instant messages and get replies without ever interrupting the proceedings. Finally, the audio from the two days of arguments was broadcast live over the Internet.
While it is fitting that such procedures were used in a case of the technical nature and broad public interest of the Microsoft case, it is not an isolated example. In April 2000, for example, the Supreme Court of the United States received its first electronic brief in Harris Trust v. Solomon Smith Barney. The State of West Virginia has set up a broadband network so prisoners can appear for arraignment by video without leaving the jail. Meanwhile, in his State of the State address in January, Michigan Governor John Engler proposed setting up “Cyber Courts” with Web-based courtrooms and specially trained judges to quickly resolve intellectual property rights and other cases for high tech companies. Between 500 and 600 high tech courtrooms have already been established in the United States and Australia, allowing parties, witnesses, attorneys and judges to appear remotely, and more are on the way.
In this article we will take a look at some of the developments in the use of technology in litigation and how this impacts the role of the court reporter.
Internet Usage by Attorneys
Although the legal profession is well known for its conservative nature, it has now broadly integrated Internet technologies into its daily activities.Last year the University of Florida Law School’s Legal Technology Institute (www.law.ufl.edu/lti) conducted a nationwide survey and found that over 90 percent of the legal profession uses the Internet at work, more than 95 percent use e-mail, almost two-thirds have websites (94 percent of large law firms do), 36 percent use laptops and half of the respondents could remotely access their firms’ office networks. These results show a large increase over The Internet Lawyer-Microsoft Corporation survey done three years earlier at which time only 71 percent of attorneys had Internet access either at home or at work and a mere third of law firms had a website.
In addition to using the Internet individually, law firms are also creating Intranets so their staff can share documents and collaborate on cases. Atlanta-based Alston & Bird, for example, set up its Intranet a few years ago with over 500,000 documents available on line. It also has created an in-house videoconferencing network linking all its offices, with the capability of connecting to clients when needed.
Bringing the Clients on Board
Beyond simply linking up their own staff, however, they are also finding that it is vital to bring clients into the loop, particularly in order to close large cases or satisfy the needs of corporate clients. According to the Legal Technology Institute study, only eight percent of firms had an Extranet as of last year (17 percent of corporate law departments had Extranets). That number is sure to rise, however, since “20 percent of the survey respondents reported an increase in requests by clients during this past year for real-time access to case-related information,” reports Andrew Z. Adkins III, LTI director and project manager for the study. “Large law firms reported an overwhelming 43 percent increase in requests by clients.”
Law firms are taking these requests seriously. Twelve percent of the survey respondents stated they planned to set up one or more Extranets in the future. San Francisco’s Heller, Ehrmann, White & McAuliff, which has about 20 Extranets set up for clients, reports that this capability led to their selection last year as counsel for Thurston County, Washington in a landfill case. Alston & Bird has about a dozen Extranets set up, and most other leading firms provide similar services.
Just as law firms have switched to Intranets and Extranets to streamline their operations, courts at all levels are also pushing to replace paper-based litigation systems. The Administrative Office of the United States Courts, for example, began piloting its Case Management/Electronic Case Files (CM/ECF) program with nine courts in January 1996, and twelve additional courts have recently started implementing the system. Using ECF, attorneys can securely file case documents using a web browser, rather than having to file a paper copy with the court. “Over 70,000 cases and approximately one million documents have been accepted in these CM/ECF courts,” stated CM/ECF project manager Gary Bockweg in the Federal Courts’ newsletter, The Third Branch. “The log-in and password signatures for those documents filed electronically have been adequate and we’ve had no instances of filers disowning their signatures.” The Administrative Office plans to have CM/ECF in place in all federal courts by 2005.
The state courts are implementing their own electronic filing systems. In March of this year, CourtLink (www.courtlink.com) implemented its JusticeLink e-filing system in all 63 district courts in Colorado. Even when the entire court system doesn’t use electronic filing, it may still be used for complex litigation. In May, for example, the D.C. Superior Court mandated that all filings be done electronically in its Civil Division One, which handles tobacco, asbestos and other complex cases. Similarly, the State of California set up an e-file site for its Diet Drug Cases, the U.S. District Court for the Northern District of Alabama used the technology in the Breast Implant Multi-District Litigation, and the New Jersey Superior Court Mass Tort Section is transforming its operations into paperless litigation.
The trend toward electronic filing continues to accelerate as more courts gain experience with using these systems, as judges and attorneys become more familiar with using computers, and as the procedures and technology become simplified and standardized.
What About Court Reporters?
Alright, all this data may be interesting, but you will probably never file an electronic brief with the Supreme Court or be called on to set up an Extranet for something like the Firestone/Ford Explorer cases. Even so, if you want to work on the big cases, or do work for savvy litigators, you must be prepared to provide service to clients who are rapidly becoming more technologically advanced.
Attorneys have known about and seen realtime in depositions for the past decade, and over a third of them are now gaining familiarity with laptops. They see the ads and read the articles about Internet video depositions. They are getting used to using the Internet daily in their practices.
A Court Reporter who is unable to provide the level of technology to which attorneys are now accustomed will seem out of step with their practice and will lose business. You wouldn’t think of buying a steno machine that won’t hook into a CAT system, or a computer that can’t access the Internet. You may have done so back in the 80s, but this is the 21st Century!
When a reporter can’t do a realtime hookup, it produces the same type of response from attorneys, “Where has this person been for the last decade? Does she know her business?” This is especially true with the big cases that everyone wants to work on. Being able to deliver realtime is now a minimum requirement in such cases, and there is increasing demand for the ability to do remote hookups. While there are still attorneys who prefer a typewriter over a word processor, they are among that dwindling four percent who still don’t use e-mail. For the rest, you had better be prepared to provide the latest technology.
It’s as NCRA President Mike Brentano stated in the June issue of the Journal of Court Reporting, “Reporting is an IT profession!”