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by Wendy R. Leibowitz
(This article originally appeared in
ABA Law Practice Management magazine, August/September 2003)
Why doesn't the court system use technology to make effective resolution of disputes easier?
There's an old joke about a man who is lost. He approaches a police officer and asks for directions. "Well, first," says the policeman, "you shouldn't start from here." When it comes to the course of law practice management, I've often thought the same thing. Can't we start from somewhere else? But alas, we have to start from where we are. And more importantly, we have to have a good idea of where we want to go.
Perhaps we need to look at the courts as our starting point, as we begin to figure out how to deliver better client service with an increasingly diverse array of tools.
The Courts Set the Pace (or Lack Thereof)
Change in the legal profession usually comes from the top down, and that means that it's driven by the courts. I'd like to think that in a democracy, change always filters up from the people. But face it, "The law is whatever the judge says it is." If the courts really took the lead in changing the profession, by, say, implementing technology to streamline processes, the profession would follow suit. As one lawyer put it, "If the judge says to come into court wearing a clown's red nose and walking on your hands, we'll do it."
Judges, of course, don't want you to do that. But the point is, the courts' priorities frequently don't coincide with the priorities of those who use the courts. Most people want their matters to be handled with speed, clarity and reliable, preferably inexpensive, pricing. Is this what courts deliver? Speed? Clarity of process and result? Reliable, affordable prices, anyone?
Where We Are Now
The courts face real problems. No, I'm not talking about the judges. They have made tremendous progress over the past few years and some (though certainly not all) realize that effective use of technology and better management processes can improve the handling and resolution of cases. Few judges advocate maintaining the status quo.
No, the problem isn't the judges, or the tight budgets under which the courts operate. The problem is that the courts don't know whom they serve. Or, to use marketing terminology, which will annoy many: They don't know who their customers are. Does the court system exist to serve the judges, the most powerful members of the legal community? Or should systems be structured to serve the court staffs, who are the ones who have to make the system work? Should it serve the lawyers, the most demanding members of the community? Should it serve the clients who have to make use of the system, which is the main reason it exists, anyway?
You can see the courts' blurred focus most clearly when it comes to technology. The decision makers, ruling on what purchases can be made, are the judges, who might not even use the technology directly. And for their part, the judges are bound by budgets set by legislators who don't get near court technology.
The court staff must use whatever technology is in place, but frequently the staff has no voice in its selection or implementation. In turn, the lawyers want to make sure that there's a paper backup copy, out of habit and safety. And the client has no idea that there's a choice. Meanwhile, the courts must also serve pro se clients, filing from prisons or walking up to the court clerk's office with handwritten documents. No system can outstrip the lowest common denominator, in terms of technology.
Where We Want to Go
The courts must become focused on the public -- a blend between a fancy department store like Nordstrom and the Internal Revenue Service. Yes, the IRS … please don't start throwing things yet. The hated IRS, over the past few years, has instituted real changes that ordinary people can see and feel. Electronic filing of tax returns is now free. You can receive an update on the status of your refund by telephone. The IRS has one of the finest government Web sites. Is it that unthinkable for the courts to aspire to be as customer-service oriented as the IRS is trying to be?
If the courts can become obsessed with being public servants, it will be easier to get increases in funding from the legislators. If the public's access to the courts is expanded -- through education, communication, more efficient handling of public concerns and reliable, affordable mediation of ordinary disputes -- the stature of the courts will increase. Better still, the level of service -- the effective resolution of disputes to the satisfaction of the parties -- will be easier.
It is very, very difficult to change the focus of the courts from serving the judges to serving the public. Heck, in the age of C-SPAN, not only does the Supreme Court refuse to televise its arguments, but Justice Antonin Scalia barred radio and TV coverage of his speech in March at the City Club of Cleveland, which decided to give him, ironically, "A Citadel of Free Speech" award.
What We Can Do Today
Changing these imperious attitudes takes time. While most of us do not practice before the Supreme Court, ordinary lawyers can and should speak up for a more public-service-oriented bench. The blogosphere - - voices of ordinary lawyers on Web logs opining on their experiences in every fora -- may be our hope for changing the court system's focus from placating the judges to serving the public. A good list of blogs focusing on law and technology is at http://blawg.org.
Recently, Rory Perry's excellent Web log, http://radio.weblogs.com/0103705, which is dedicated to technology and the courts, highlighted a letter to the U.S. Supreme Court. The letter respectfully asks the justices to make dockets, opinions and orders -- everything the Court publishes -- more available. We can only hope that someone downloads the letter (part of a series of letters to the Court) and puts in on the justices' desks.
If you'd like to join in the blogosphere, here's a starting point for you. There's a site specifically devoted to electronic records and the courts that is helpful when trying to pinpoint which courts are advancing and which are stagnating: http://e-courtrecords.blogspot.com. Eventually, even the Supreme Court has to hear and respond to the din from the streets -- remember when it condescended to put up a Web site?
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