May 01, 2013

Will Virtual Courts Create Courthouse Relics?

By Keith B. Kaplan

Courts exist as neutral forums for dispute resolution.1 Are courthouses then necessary to dispense justice or can a virtual court fulfill this role? A virtual court is a conceptual idea of a judicial forum that has no physical presence but still provides the same justice services that are available in courthouses. Access to virtual courts would be limited to online access, videoconferencing, and teleconferencing. No longer would imposing buildings be the sign of justice. Virtual courts would save on overhead and costs associated with operating court facilities and could improve access to justice, but at what cost? Is the ability to dispense justice from home worth the price of reducing in-person human interaction? Courts are already moving toward virtual courthouses, but the extent to which physical courthouses will be utilized in the future is up to current trends in technology and the importance placed on the traditional role that physical courthouses play in dispensing justice. When looking toward the future, the fundamental purposes of the courts must be taken into account.

Technology Trends

The future of the courts is greatly dependent on technology and how technology can improve the functioning of the courts. Advances in technology can improve the courts and the public’s access to court services. Not only will new technology allow for greater access to the courts, but it can also improve how efficiently the courts operate in these difficult financial times.

As technology improves, some courts have already implemented e-courthouses.2 Maricopa County Superior Court in Phoenix, Arizona, recently moved into a new courthouse that utilizes e-courtrooms. These courtrooms have microphones throughout, flat-screen monitors for the court and jurors, two-way videoconferencing to allow for court appearances from locations other than in the courthouse, evidence display systems with touch screens that allow exhibits to be highlighted and annotated, and full audio and visual digital recording of proceedings.3

Former Presiding Judge Colin F. Campbell indicated that “[w]idespread use of technology during trial enhances the way evidence is presented, allowing facts, concepts and ideas to be more readily understood by jurors, litigants, spectators, lawyers and the Court.”4

Courts are also beginning to use kiosks and electronic portals over the Internet for litigants to access court functions at any time of day (e.g., filings, calendars, e-forms, juror questionnaires, etc.).5 While electronic courthouses improve access and efficiency, there are still financial and logistical problems of building new courthouses to implement new technology. In the future, it is possible physical courthouses may no longer be needed.

In addition to videoconferencing and electronic portals, many courts utilize online electronic filing systems. Arizona is in the process of implementing a statewide e-filing system and online document access.6 Courts are already taking steps to process cases online, and it could be only a matter of time before litigants no longer need to physically access courts.

Telecommuting and Online Access

Utilizing technology, courts have already reduced the need for people to physically access the courts. As video technology improves, courts are beginning to use it for criminal arraignments and other proceedings to reduce the costs of transporting defendants, and for video testimony from out-of-state expert witnesses.7 It is foreseeable that more courts will begin to use video technology to replace the need for appearances in court. Why can’t such technology also replace the need for court staff and judges to physically be present in a courthouse? In the future, trials and hearings may occur through videoconference with all parties securely accessing the court from locations of their choosing. Court staff and judges may also be able to partake in hearings and trials from either their home or office.

Courts, as they are currently viewed, may become virtual and not require litigants or staff to physically attend court. Because the technology to facilitate a virtual courthouse will still require a physical presence, courts may elect to have an office to house technology and limited court staff. Other courts may elect to have court staff and judges telecommute from their homes.

Another option would be to have court staff physically located at an office to process cases. However, this will increase costs and remove some of the benefits of having a virtual courthouse. Some courts may determine that only some staff need to be physically present, while others can process cases online. Accountability standards can be developed by each court to ensure that staff are working while at home. It would be obvious if an employee is working or not by how they are processing cases. Measurements from in-office productivity to at-home productivity can be compared to determine if staff are working while at home.

There are other obstacles to consider when having staff telecommute, such as what technology will they use to access the courts remotely and how will communications occur with other court staff. Other issues are sure to arise, but when thinking of virtual courts in the theoretical sense, the courts must consider whether virtual courts are better than physical courts at providing accessibility and the ability to efficiently provide a neutral forum for dispute resolution.

Because there will be no physical presence at a courthouse, all filings and case processing will be available online.8 In order to implement virtual court procedures and case processing, existing case management systems will need to be either modified or replaced to foster new technology and remote access. This will entail extensive design and implementation considerations, including data integration with outside agencies, other courts, and third-party applications. However, these costs must be weighed against the costs of constructing and maintaining a new courthouse or retrofitting an old courthouse to support e-courtrooms. Through this analysis framework, each jurisdiction will be able to determine if a virtual court is less expensive than a physical courthouse. While the expense to move to a virtual court must be considered, implications regarding the purposes of courts must be reviewed to address how the elimination of physical courts will impact the traditions and efficacy of courts.

Access to Justice

Logistically, a virtual courthouse is possible now. However, the courts must be accessible by everyone, and not having a physical location for the public to conveniently access the court can hinder access by certain consumer groups. To overcome this barrier, courts can establish remote locations, such as libraries, community centers, and police stations, that will allow anyone to access virtual court services. Court staff can be stationed at those remote locations to assist litigants.

Virtual courthouses can be viewed as restrictive and inaccessible by their virtual nature. This is where the analysis of physical access versus virtual access must be considered. Is it better to allow nearly everyone to access the court from home or a remote location with the exception of those who cannot use computers or have other limitations, or is it preferable to have a physical presence that may be more restrictive? While courts provide assistance in all forms, whether it is interpreters, accessibility for those with disabilities, or other forms of assistance, the need for this type of assistance could be eliminated or drastically reduced if litigants were not required to physically be present at the courthouse. Existing voice recognition technology that can interpret written text or spoken word and other technology are rapidly developing and may soon provide the same assistance as the courts currently provide.9 As long as this type of technology is readily available to litigants virtually accessing the court, the courts will remain just as accessible, if not more so, because of the lack of need to physically attend/appear in court.

Some of the greatest benefits of a virtual court are the cost savings and hours of service availability. Traditionally, courts are open to the public on business days. However, this is restrictive in that many litigants who need to access the courts generally also work on business days. Virtual courts can eliminate this barrier not only by allowing 24-hours-a-day, seven-days-a-week access to electronic filing and other case processing online, but litigants will also be able to participate in hearings and trials by videoconference. No longer will litigants be forced to leave work to attend court as they will access proceedings from their home or office.

Another benefit of a virtual court is the reduced costs normally associated with a physical presence. Not only will the normal facility and security operating costs of a court be nearly eliminated, but court staff will no longer need physical space at the court to successfully do their jobs. Because all case processing will be done online, court staff can access all case files and documents online and do all case processing from their homes.

Quality of Justice

While moving to a virtual court may seem to some as an innovative approach to dispensing justice, the purposes and traditions of courts must also be weighed when determining if courts should move to a virtual presence. The traditional role of a court is to serve as a neutral forum to resolve disputes between adversaries and to adjudicate criminal cases in a fair and equitable manner.10 The courts are steeped in tradition and precedent. This is what, in part, gives the public a perception of a fair result. These traditions will inevitably impact how a virtual court is perceived. Not only could the perception be that there should be a physical courthouse, but also that a virtual courthouse introduces new complications that are not an issue with a physical presence.

Despite virtual courts being more readily accessible than physical courts, the implications of not having a physical location for jurors to attend trials may impact the quality of justice. Jury pools may be limited to those with uninterrupted Internet access, which could eliminate certain segments of society from jury service and reduce diversity among jurors. Also, the consequence of not having jurors physically present for voir dire may have negative consequences when selecting juries. For virtual courts to be successful, jurors must be given the same access they have for trials occurring in physical courthouses.

Trust and Confidence in Virtual Courts

Because the fundamental purpose of the courts is to dispense justice in a fair and equitable manner, and the courts exist to resolve disputes, to what extent will the implementation of a virtual court impact the courts’ role in society?11 Virtual courts could arguably provide for greater access to justice and reduce the costs of providing justice. However, the nature of courthouses and the human interactions that occur may reduce the quality of justice that is dispensed. There is an expectation by the public that courts will provide justice in an efficient and accessible manner. Accessibility arises not only from being able to understand proceedings and being able to physically access the courthouse, but also from the in-person interactions with court staff and judges. The presence of judges and court staff reassures the public that justice is being dispensed because that is their role. While virtual courts may improve physical accessibility, there may be a loss of trust and confidence in the courts because the public will no longer be in the presence of those people who are supposed to dispense justice. This could have a chilling effect on the perception of the courts and the public could question how effective courts are at resolving disputes.

Hybrid Models

If eliminating courthouses does not align with the purposes and traditions of the courts, there are other options the courts may embrace as technology improves and as the need for cost savings and access requirements becomes greater. While not all case types and interactions may be appropriate for virtual courts, courts may decide that some case types are better equipped to be managed through online-only interaction. Cases where the parties are not required to participate in hearings may be better suited for full online services. In addition, judicial leaders may decide that courthouses in the traditional sense are no longer required and opt to implement smaller specialized courts in office buildings that focus on specific case types and offer other court services online. This will remove the need to support large courthouses and numerous court staff, as well as extensive security personnel.

Future Projections

While I see a move toward electronic courthouses in the near future, I do not believe that virtual courthouses are going to replace most physical courts anytime soon. Courts are steeped in tradition and are slow to change. While virtual courts may provide additional access and economic benefits, numerous obstacles must be overcome to eliminate a physical presence completely. In addition, entering a courthouse gives litigants a sense that justice is being dispensed because courthouses are symbols of justice. This critical dynamic could be lost in the virtual world and there could be negative connotations with a lack of physical courts.

The public has an image of courts, whether it is from seeing them on television or from being a litigant or juror in a case. These images are the basis for how the public perceives the courts and their ideals for what courts should be. The public generally has an impression that courts are large and imposing institutions that dispense justice, a perception that may be lost if physical courts are eliminated. However, as technology improves, courts must advance with the times to allow for greater access and efficiency. This will require courts to move forward while still maintaining tradition.

Endnotes

1. The purposes and traditional roles of courts are covered in detail in the Institute for Court Management’s class on The Purposes and Responsibilities of Courts, which included Ernie Friesen’s Eight Purposes of Courts. Ernest C. Friesen, Core Competency Fundamentals: Purposes and Responsibilities of Courts, Nat’l Ass’n for Court Mgmt. (2007), http://www.nacmnet.org/sites/default/files/CCCG/toolboxes/powerpoint/Purposes_2.5%20Day_Slides.ppt.

2. E-courthouses, such as those in Maricopa County Superior Court, are electronic courthouses that utilize technology to improve access to the courts.

3. Maricopa County Superior Court E-Courtroom, Maricopa Cty. Super. Ct. (2012), http://www.superiorcourt.maricopa.gov/superiorcourt/e-courtroom/index.asp.

4. Id.

5. An example of kiosks operated by courts is available through the National Center for State Courts website. Briefing Papers, Nat’l Ctr. for State Cts. (1995), http://www.ncsconline.org/d_tech/archive/briefing/kiosks.htm.

6. The Arizona Administrative Office of the Courts is currently operating AZTurboCourt, an electronic filing system. Arizona is also developing a new statewide electronic document access application.

7. Many courts are utilizing video arraignments in lieu of arraignments held in person. In addition, some courts are already utilizing video testimony from out-of-state expert witnesses.

8. The U.S. judiciary pioneered electronic access to court records in developing the PACER (Public Access to Court Electronic Records) e-filing and e-records access system, http://www.pacer.gov.

9. Google Translate is an example of text to speech software, http://translate.google.com.

10. Friesen, supra note 1.

11. Id.