Communicating with Lawyers on the Internet

©American Bar Association republished with permission

By Donald E. Shelton, Circuit Judge*

"The information revolution is not about computers - it is about networks."

                                                        - Richard Schroth, Ph.D.

An excellent use of the Internet in general and court web sites in particular is as a means of communicating between the court and its primary users - the bar. While the most obvious uses are simply to convey static information, the Internet has opened many other avenues of bench-bar communication. 

·        Publication of Opinions and Orders

            Technology is dramatically changing the way legal decisions are published. Historically appellate decisions have been published by private companies who actually owned and marketed the law. Our citation system for locating the law is based on those private publications. The Internet is changing that premise. We are in a period of transition to what many predict will be the public accessibility to the law. Appellate opinions are now being published directly on the Internet through sites owned and managed by the government. Although some entrepreneurial sites may charge a fee for organizing those opinions, the primary data in the form of published opinions is available and free to everyone. This is going to change the system of citation to a process where court opinions are given document number and each paragraph rather than page is numbered (for example, Smith v. Jones, 1996 5Cir 15, ¶ 18). Substantial work is already underway on this major change in how legal materials are categorized and the American Bar Association has recommended the Uniform System of Citation[1] to all jurisdictions. Many appellate courts are already using the Internet to publish opinions. The U.S. Supreme Court[2] and other federal appellate courts[3] have led the way in publishing opinions on the Internet. Several state appellate courts[4] also have online opinions. The current top court web site[5] in the world is the North Dakota Supreme Court[6], which has adopted the uniform citation system for all post-1997 decisions.

            While appellate courts are taking the lead, technology also means that trial courts can now make court documents generally available. Previously there was no private interest in publishing local opinions or orders because it was simply not profitable enough given the paper printing costs. Now even local opinions and orders, which are already in digital format on someone's word processor in the courthouse, can be quickly and cheaply converted to html (the language of the internet) and published on a web site for the world to see and search. Federal trial courts[7] have been the leaders in this process. Our Washtenaw Trial Court[8] site has a searchable database[9] of local court opinions. This means that attorneys, and the general public, can not only read opinions of interest but also may do a text search for topic areas such as auto negligence or even do a sophisticated search to read all of the opinions by a particular judge on a particular topic.

            Locally, this digital publication is not limited to opinions and may have other easier but even more useful applications. The Washtenaw County site publishes a simple list of the signed orders[10] by each Judge on a daily basis. Judicial secretaries report that the result has been a 1/3 decrease in telephone inquiries. The list is simply prepared each evening by a macro that converts the word processor lists maintained by each secretary into html and adds them to the web site.

·        Docket and File Access

            From the viewpoint of attorneys and litigants, perhaps the most immediately useful online court feature is publication of the court's schedule or docket. There are court concerns about the insecurity of making the court schedule database directly available and the fear of a hacker changing the court docket is real. While modern "firewall" technology has proven very effective, most courts are not yet comfortable with true online access to dockets. For an exception see the New Mexico electronic filing experiment[11]. However, several courts are publishing static versions of the docket online. Depending on how often they are updated, these schedules are very useful to lawyers and litigants. For examples of courts already "doing business" on the web, visit the National Center for State Courts web site.[12]

            Obviously, if we can make opinions and orders, or even the entire court schedule, available online why not make all public court documents accessible electronically. Once the court's document storage system is digital and documents are either filed in digital format or converted to digital format, there is no technological barrier to total public access to court files. Some courts that have experimented with electronic filing have already implemented such access in limited areas. Again, the federal courts have moved quickest to put federal court records online.[13]

There are several concerns about such total access to court information:

ü      Cost of Conversion Until a court can totally implement an electronic filing system it will continue to receive paper filings which must then be imaged (scanned) in some format for digital storage. Perhaps even more formidable a task is scanning all of huge court files that already exist. This is a challenge that is being met by many other institutions with much larger files[14] and there are a number of products and services available for making such a transition[15]. However, the costs seem very formidable to many local courts.

ü      Security Firewall technology is available that can give some assurance that people will be able to read the court data without being able to change or delete it. The use of "digital signatures" can even give more assurance of authenticity than we currently have from written signatures.[16] The fear remains, however.

ü      Privacy While we profess to believe in total public access to court files through the federal and various local FOIA legislation, we know that the right of access is not truly freedom of access. The physical difficulty of searching the millions of pages of court documents makes full access unattainable for most. What will happen when anyone can search all court records from any computer for any purpose? With total electronic access, it would be possible to access all of the documents on file with the court from any computer and to search through them on any parameter. Understand that public access means access to anyone and that once that information is found it can be redistributed any way, including over the Internet.  Public access to all court documents will force us to rethink the public policy balance of open access to records versus the privacy of individuals.

·        Email, Email Lists, and "Listservs"

            The most common use of the Internet is overwhelmingly for email. It has advantages over traditional mail, now called "snail mail", that meet the faster paced needs of our society. It is even preferred by many over telephone communication because it can be composed rather than spontaneous, it can be read at the reader's convenience, and there are no busy signals, receptionists, "hold buttons" or recorded voice mail messages to get through.

            Courts are beginning to use email as one of the primary means of communication with users as well. Almost any judicial secretary will tell you that the worst part of the job is the telephone. Judicial secretaries and other staff who use email find it efficient and "freeing" as compared to the telephone. It has replaced the fax in many judicial offices. As the bar and judiciary become more accustomed to email as a means of communication with each other, it may well become the primary message communication tool.

            Another distinct advantage of email is that it can be immediately distributed to multiple addressees, one of the common tasks in court communications. In complex litigation, it is a simple task to create a list on the electronic Address Book so that one email automatically goes to all counsel. In conjunction with local bar associations, some courts have developed a comprehensive email list so judges or court administrators can send informational messages to the entire local bar.

            An interactive form of email, commonly called "listserv" (even though listserv is only one software brand in the field), allows all participants to send messages to all other participants with one email to a common address. These lists take several forms and can be open or closed and moderated or not. They operate with the same idea as the early electronic "bulletin boards" and there are thousands of them in virtually every subject area. A good collection of law-related electronic mailing lists as well as instructions about how to use them is at Law Lists Info[17].  For the courts and the bar, a closed and moderated form of such a list provides a means of interactive communication that can function as a sort of ongoing bench-bar conference. It can effectively replace a local bar newsletter and greatly enhance bench-bar communications and relations.

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