General Practice, Solo & Small Firm DivisionMagazine

 
Volume 17, Number 6
September 2000

JUDICIAL

COMMUNICATING WITH LAWYERS ON THE INTERNET

By Donald E. Shelton

The court’s use of the Internet and specific court websites to communicate with its primary users—the bar—is an excellent use of technology that has opened many avenues of bench-bar communication.Publication of Opinions and Orders. Technology is changing the way legal decisions are published. Historically, appellate decisions have been published by private companies that actually own and market 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 more public accessibility to the law. Appellate opinions are now being published directly onto 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 are available and free to everyone.

This is going to change the system of citation to a process in which court opinions are assigned document numbers and each paragraph, rather than page, is numbered (for example, Smith v. Jones, 1996, 5th Cir. 15, ¶ 18). Substantial work is already under way on this major change in how legal materials are categorized, and the American Bar Association has recommended A Uniform System of Citation to all jurisdictions for this purpose. Many appellate courts are already using the Internet to publish opinions. The U.S. Supreme Court and other federal appellate courts have led the way in publishing opinions online, as have several state appellate courts. The top court website in the world, created by the North Dakota Supreme Court, 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 that 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 website. Federal trial courts have been the leaders in this process. 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 docket. However, there are security concerns about making the court schedule database directly available. Although modern firewall technology has proven very effective, most courts are not yet comfortable with true online access to dockets. New Mexico courts are currently experimenting with this very process. Several other courts are publishing static versions of their dockets online. Depending on how often they are updated, these schedules can be useful to lawyers and litigants.

If we make opinions and orders, or even entire court schedules, available online, why not make all public court documents accessible electronically? Once court document storage systems are digital, and documents are either filed in digital format or converted to digital format, there will be 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.

There are several concerns with providing such total access to court information. Until a court can implement a complete electronic filing system, it will continue to receive paper filings that must then be imaged (scanned) in some format for digital storage. Perhaps even more formidable a task is scanning all the huge court files that already exist. There are a number of products and services available for making such a transition. However, the costs may be prohibitive for many local courts.

While we profess to believe in total public access to court files through federal and local Federal Open Information Act 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 unrealistic and 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. Public access means access to anyone; once information is found, it can be redistributed in any way, including over the Internet. Public access to all court documents will force us to rethink our public policy balance between open access to records and individual privacy.E-mail, E-mail Lists, and List Serves. The most common use of the Internet is overwhelmingly sending and receiving e-mail. It has advantages over traditional mail that meet the fast-paced needs of our society. It is even preferred by many over telephone communication because it can be composed, read at the reader’s convenience, and there are no busy signals, receptionists, hold buttons, or recorded voicemail messages to contend with.

Courts are beginning to use e-mail as one of their primary means of communicating with users as well. It has replaced the fax in many judicial offices. As the bar and judiciary become more accustomed to e-mail to communicate with one another, they may well find it becoming their primary communication tool.

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

An interactive form of e-mail, commonly called a "List Serve" (not to be confused with List Serve, an actual software brand in the field), allows all participants to send messages to all other participants with one e-mail to a common address. These lists take several forms and can be opened or closed, 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, can be found at Law Lists Info (www.lib.uchicago.edu/cgi-bin/ law-lists). 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.Conclusion. Networking through the Internet has become a dominant form of communication throughout our society. This has given the courts the increased capability to communicate with their primary constituents in the bar. Although this increased capability brings with it some significant privacy and security issues, these concerns will be resolved by technological and legal changes. Courts can use this technology to communicate quickly and efficiently and thus to improve the delivery of judicial services to the bar and the public.

Donald E. Shelton is presiding judge of the civil / criminal division of the Washtenaw County trial court in Michigan.

This article is an abridged and edited version of one that originally appeared on page 26 of Judges’ Journal, Winter 2000 (39:1).

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