COURTING THE VIRTUAL

 III. Impacts of Dispersion  on the Spaces/Functions of the Courthouse 

            This section assesses how the spaces and functions of the courthouse might operate if barriers to virtual implementation were removed. 

            A. The Library           

            Arguably, there are no technological barriers to creating a virtual court library, defined as a resource for legal and other case-related research that has no fixed or unique physical location.[1] The on-line availability of the full texts of cases, statutes, regulations, registers, legislative histories, treatises, and the other documents of the traditional court library is already or could become an accomplished fact.  Any paper-based  library with unique or rare historical collections could create electronically transmittable images of those holdings, though perhaps  not text-searchable documents.  All of the courts’ public documents can be uploaded to the Internet by courts themselves or by anyone else with the resources to do so.  

            Granting the possibility of placing all relevant information on-line, however, raises more questions than it resolves. Two questions in particular should be addressed here:  First, how accessible would the virtual court library be?  And second, how good would it be? 

            The question of accessibility should be made more specific by asking, “accessible to whom?” Regarding the court library’s primary customers, the court’s judges and law clerks, accessibility could no doubt be as complete as required.  After all, federal judges already enjoy virtually unlimited access to all electronic legal resources through national contracts with private value-added providers (“fee sites” like Lexis and Westlaw), as well as access to “free sites” on the Web.  The question for judges is not so much what  they can have electronically, as what they might eventually have to relinquish in hard copy.  

            The court library’s secondary customers are the members of the court’s bar with cases before the court.[2]  The analysis of their access to the virtual court library could proceed as follows:  If a lawyer is already on-line when he or she needs material available in the virtual court library, the important distinction is the one between accessibility to free sites and fee sites.  With proper electronic identification, these lawyers could gain access to the court-supported virtual library equal to the judges’ access; in that event they would be completely well-served.  Wherever their access might be restricted, for example if they were denied access to a fee site on the court’s account, they  could acquire their own account and pass the costs along to their clients.  This is, of course, what they do right now.[3]  Thus for well-financed lawyers already on-line, the virtual federal court library appears to present little threat of reduced access to necessary information. 

            What about the lawyers who cannot afford to go on-line, underfinanced pro se litigants, and the public? In the current system, many federal court libraries are  selective depository libraries, which means that  they routinely receive sets of government publications from the Government Printing Office that they are required to make available to the public.[4]  The public can also access hard-copy West Reporters in the  circuit libraries, but they cannot access the fee sites in any of them. If the hard-copy libraries were to disappear in favor of the virtual federal court library, either these on-line services (or their equivalents) would have to be provided at public expense, or else the public, including some attorneys and pro se litigants, would be denied access to an important legal resource in the virtual federal court library. [5] 

            The potential denial of public access to fee sites in the virtual library introduces the second question of how good the virtual court library would be.  Even assuming for the moment that all necessary information were electronically available,  how would the ordinary user find it? The information organization and search engines of the fee sites remain superior to those available for free.[6]   One way to characterize this is to think of the fee sites as providing the services of a skilled legal librarian as well as a complete set of case and analytic materials. The librarians available on-line for free are not, in general, as skilled or knowledgeable as those who charge for their services. Given the commercial incentives for fee site owners to stay ahead of freeware providers, is there any reason to believe that a virtual “free public law librarian” will emerge on-line that is equal to the fee sites in its service?  Would it make sense for the federal courts to fund access to fee sites for underfinanced attorneys and pro se litigants with cases before the court, thus leveling the playing field relative to the current accessibility of value-added legal research tools in hard-copy libraries?  Does the contemplation of these questions suggest that hard-copy law libraries providing these tools are going to be around for a long time? 

            We have so far assumed a fact that is far from true, namely that even fundamental federal court case materials are uniformly and reliably available on-line as a public good.  The reality is quite different.  For example one recent report found that only two district courts place their opinions on the Web, and it made no mention of any bankruptcy court decisions on-line from the courts.  The availability of  Supreme Court and appellate court decisions is considerably greater, but materials from these courts are not co-located in a single searchable database  at a free site.[7] 

            This line of thinking leads to imagining a project that attempts to gather the electronic equivalents of all court slip opinions uniformly, accurately, and  consistently from all the federal courts and put them up on the Web with a powerful search engine available for downloading.  And this, in turn, produces a strong sense of deja vu, because the project would, even if successful, recreate what is already available at fee sites.  The perception that this service would be “free” would itself be illusory. The truth would be, rather, that the people who are paying the costs are not necessarily the  same people who are using the service.  Whether this is a good idea or not is not a technological question.  

            One  can wonder, nevertheless,  why all federal courts do not routinely send their slip opinions to the depository library program at the Government Printing Office.  The GPO could place the opinions on their Web site, which already provides a modest search capability.[8] 

            It seems, then, that  we are currently far from a publicly supported virtual federal court library and that, given current court library policies, even the completely stocked virtual federal court library would have problems of accessibility and digestibility.   Some of these problems, like their causes, are not technological, but arise at the nexus of public policy, spending priorities, and commerce. 

            These conclusions should not obscure the benefits of practical research into improving the availability of research tools that can operate against materials downloaded from diverse sites supplying legal raw material.  From the federal courthouse perspective, such tools could be useful in the work of judges and law clerks as well as that of lawyers and litigants working “in the library.”  We will return to the topic when we reach the judge’s virtual chambers. 

            There is another related topic of research that should be conceptualized in more detail and then divided into individual implementation projects.  The topic is framed by the following question: what will we mean by “a publication” or “a document” in a virtual library?[9]  So far in this discussion we have conceived of the documents in a library as more-or-less unitary, static entities which, once produced and stored, are retrieved and used from time to time and replaced in their appropriate location.  Of course, it is recognized that some important publications are revised either on a schedule or aperiodically, like the U.S.C., C.F.R., etc.  Evolving case law is captured in successive editions of treatises, specialized case reporters (appropriately called loose-leaf services), and general search tools like Shepards.  Law librarians and legal publishers are experts at keeping these materials current; successful legal research depends on this skill. 

            In the virtual law library, there is an opportunity radically to re-define the nature of a document.  We have seen the beginning of this trend with the submission of appellate briefs on CD-ROM disks.[10]   Though apparently radical at the instant, self-contained CD-ROM submissions are in fact another form of hard copy.  The larger change arises when, beginning with a CD-ROM, the brief introduces hyper-links that point outside the CD-ROM to sites on the Web or other networks. A host of interesting questions arise when this possibility is contemplated. We will consider just one example: should such links to outside sources be permitted at all?  On the one hand, it would seem to be more efficient to allow links to access fee sites directly[11] rather than, as now, to require litigants to purchase licenses to copy published opinions onto the CD-ROM.[12]  On the other hand, there is no way to assure the continued availability of information from any hyper-link or other electronic address like a phone number, or that the information at that location will remain exactly as it was when the brief was submitted.  Further, the use of the CD-ROM as the medium of submissions may eventually seem to be as quaint as submitting hand-written documents would be today. 

            Finally, note that the shift in the medium of brief submission from paper to electronic form (from atoms to bits, as Negroponte puts it[13] ) has the consequence of blurring the traditional distinctions between the library, the Clerk’s office, and judicial chambers. The “location” of the court’s documents (the briefs, traditionally under the official control of the Clerk, though they are intended for immediate distribution to one or more judges) the “location” of supporting legal materials (cases, statutes, regulations, etc., traditionally under the control of the library though they are intended for the use of the judges), and the “location” of documents and support materials in chambers,  take on new meanings.  In a sense, the materials are wherever they appear on a screen.  In another sense, they are wherever they reside on disk or tape or other repository medium.  Physical control of this medium and the related equipment will of course be  crucially important for the security and integrity of the court’s work.  But it will be different from the functional or content control that Clerks and librarians will need to exercise in order to insure the substantive integrity of this information. 

            B. The Clerk’s Office  

            Case event docketing and related document management are the meat and potatoes on the federal court Clerk’s office plate.  Federal court automation began with an initiative to create an electronic docketing system.  Operational versions of the system have been in place for more than 20 years.  The current nationally-supported system, operating in a UNIX environment, was designed from scratch within the court system and, by now, is based on very well-understood system logic.  The system’s performance in many courts, particularly for writing reports, has been less than optimal, at least in part because the size and complexity of the programs and databases have tended to swamp the capacity of the available hardware.  

            The winds of change are blowing, stimulated by the insight that docketing and document management can be combined in an electronic Clerk’s Office environment.  The direction in which the courts and Administrative Office are moving stimulates the development of a virtual federal court Clerk’s office. 

            In a nutshell,[14] the concept is to  encourage attorneys to submit all case-related documents to the court electronically.  Attached to the submitted document is an electronic cover page  containing all the necessary identifiers and administrative information required for the Clerk’s Office to accept the document and docket it.  Some cover page information is extracted and entered onto the court’s electronic (official) docket for the case.  Any paper documents not available to the filing party electronically would be scanned by the party and submitted electronically or scanned by the court at the time of intake.  Once a filing has been logged onto the system and “filed,” electronic notification can be sent to everyone in the court who needs to know (for example Probation/Pretrial, U.S. Trustee, the courtroom deputy and chambers staff of the judge or judges assigned to the case, the jury administrator, etc.).  Notice and service can be also be accomplished electronically. 

            Electronic documents and other materials to be used at trial, or pointers to them if they are irreducibly physical, can be assembled and approved beforehand.  

            All judicial actions requiring docketing, and any related judicial documents, would also be handled electronically, reversing the information flow from chambers “through the Clerk’s office” and “out” to parties and others with need to know.  Such a system is a powerful extensionof the public access system now in place, called PACER.  In the event of an appeal, the record can be sent electronically to the court of appeals. 

            The goal of this model of case-information is to reduce traffic in paper. Paper files can be cumbersome to organize and retrieve quickly, are usually only available to one person at a time, and require constant maintenance and significant storage space, may be lost, disassembled, or misfiled, and are difficult to keep up-to-date.  Paper pleadings must be transmitted by mail or by hand delivery in multiple copies for manual distribution.[15]  Thus, as now conceived, the electronic case files project aims to enhance the values of expedition, timeliness, and accountability for public resources.  There are no principled reasons to criticize the project on these or other value-based grounds. 

            Implementation of this system, combined with existing programs that reduce paper management (e.g. outsourcing the production and distribution of bankruptcy notices), stands a good chance of achieving the aspirations of its developers.  Moreover, the system sets the foundation for another very valuable service by the court to its customers: creating a complete case file on-line with links from docket entries at the highest level screen into all the documents cited by the docket.  This linkage could be taken one step further if the citations found in the lawyers’ pleadings and the judges’ opinions were in the form of links to the source documents.  The issues raised by this possibility were described above in the library discussion, and are noted by the authors of the Administrative Office report.[16] 

            As evidenced, for example, by the success of the remote bankruptcy noticing project, federal courts have taken substantial steps to eliminate the constraints of geography in the management of official documents. There is no technical reason why the system proposed and being tested by the Administrative Office for electronic case files could not take further advantage of broad bandwidth to distribute the location(s) of the storage sites of dockets and related documents, if that turned out to be cost-effective. Once the paper deluge has been brought under control, exactly where the court’s files reside becomes a question similar to the question of where the case law is located.  If managing the court’s files are the meat and potatoes of the Clerk’s office, then perhaps, in the virtual courthouse, it should become a (cost-effective) moveable feast. 

            C. The Courtroom.           

            Section II.D.4  emphasized the idea that the courtroom represents a focal point for the tension between concentration and dispersion as consequences of innovations with technology.  Unlike the library and Clerk’s office, where the dispersions of function over space have been relatively uncontroversial, proposals for dispersion of courtroom functions arouse deep concern that such changes seriously  threaten core values of justice in the judicial system.  Can we state the issues clearly? 

            We can begin with the observation that concentrating technology in the courtroom, if done tastefully, is largely uncontroversial. There is now an active program to augment traditional courtrooms with electronic recording and display equipment.  Document and physical evidence presenters, videotape and laser disk players, projectors for videotape and computer displays, and computer-aided stenography with real-time display, all bring a new visual intensity to the proceedings.  When these installations are done carefully the results are functionally effective and esthetically satisfying.[17] 

            A major rationale for court investments in concentrated courtroom technology is the ability to present information (evidence, testimony, visual aids to argument) developed at an earlier time. Often, the information has been previously recorded with the intent of displaying it during trial (documents, depositions, views, “days-in-the-life,” confessions, animations and simulations, etc.).  Its form and content are controlled by evidentiary rules intended to maximize the  benefits and minimize the risks of its use.  Increased use of technology to facilitate the use of these asynchronous displays  does not fundamentally alter the structure of the proceeding--in effect, their use becomes business as usual conducted more efficiently and effectively. [18]

            As summarized in the  graphic, controversy increases when technology is used to allow participants in the proceeding to “appear in court”[19] via telephone or video technology (synchronous audio or audiovisual display). Not surprisingly, there is less judicial objection to remote feeds for appellate argument than for trial and pre-trial proceedings. At  least three federal circuits (Second, Third, and Tenth) have used or soon will use videoconferencing to connect lawyers at remote sites to an appellate panel seated in a traditional courtroom. Nor has the use of videoconferencing been particularly controversial when used for the convenience of bar and bench in the bankruptcy court, as in the Western District of Texas and Middle District of Florida.  Within district court proceedings, the issues are  especially pointed on the criminal side of the docket, largely because of concern with violating the confrontation clause of the Sixth Amendment, but there are also appellate rulings prohibiting the use of testimony by telephone in a civil case.  The footnote points to some of the important cases.[20] 

            There is some language in the cases that points to an implicit, almost inchoate psychological theory behind the limitation on audiovisual input from remote sites during a trial:  “[I]n some undefined but real way recollection, veracity, and communication are influenced by face-to-face challenge.”[21]  In the context of synchronous displays in a traditional courtroom, this dictum poses the  critical questions: is it possible, and is it feasible, to develop an audiovisual courtroom experience for participants at several physical locations, such that “recollection, veracity, and communication” would not be weaker, and might be stronger, than they are in face-to-face trials generally? 

            As if these conjectures were not controversial enough, synchronous participation by remote parties displayed in a traditional courtroom is not the end of the logical or technological road.  As one thinks about increasing the  proportion of remote participants to a proceeding, one queries the inviolable necessity of physically co-locating the judge and traditional courtroom furnishings inside traditional courthouses.  As a thought experiment, imagine a proceeding in which every participant in the proceeding were to appear before the judge and each other from remote locations, and the public could, so to speak, tune in.  Would these appearances still need to be piped to a traditional courtroom with the judge in corporeal attendance there, robed in black? If so, why?  If not, why not?  What would such appearances mean?  To what ends would they contribute? 

            (At this point, as a form of shorthand, I introduce a single term to capture the entirety of the experience that attends being-in-the-courtroom, with all its stimulation of recollection, veracity, and communication––all the legally important dimensions of the real thing.  The term is verisimilitude.[22]) 

            This thought experiment undercuts our reliance on the synchronous co-location of trial participants in traditional spaces.  It requires us to scrutinize  the logical and empirical demands of the trial as a means of arriving at the legal resolution of a dispute and a satisfactory account of the facts behind the dispute.  The value scheme that we have accepted requires our court proceedings to guarantee equality, fairness, and integrity.  It requires further that we allow the  public to have full confidence in the courts.  But we should not allow ourselves to escape the challenge of innovation by claiming irrefutable superiority for traditional practices and procedures just because they are traditional.  How do we set benchmarks of value for current practices, so that innovations can be tested against them?  How much verisimilitude is enough?  Is it possible to enhance verisimilitude beyond the average traditional trial? 

            There is yet another twist in the road.   Having relaxed the requirement of co-location, the final step (probably the last straw for some) is to relax the requirement of synchronicity, so that now the proceedings have been “re-located” in both time and space.  In other words, so long as certain time frames are observed for every stage of a litigation (such as those established by the Speedy Trial Act, or local Civil Justice Reform Act rules, or quantified Trial Court Performance Standards, or whatever) there is no need to  insist that parties appear at the same time to argue before the judge.  Disputants can submit their materials to the court, following all appropriate rules of notice and distribution,  and the court can review them, ask questions, make rulings, remotely and asynchronously, in just the same way.  Putting aside the obvious difficulties of conducting a jury trial in this fashion (without relaxing further constraints about how juries work), it seems reasonable to imagine this working for civil pre-trial proceedings, especially those involving discovery motions.  There may also be a number of bankruptcy proceedings and hearings that could be conducted in this fashion. 

            Finally, it should be feasible to extend these methods into court-annexed or other non-litigative dispute resolving schemes, including mediation, arbitration, early neutral evaluation, perhaps even some variant on summary jury trial.  The key to successful experimentation and innovation will be to choose proceedings that are now important enough, and costly enough, to warrant the investment in finding an efficient and effective alternative facilitated through technology.[23] 

            D. Jury deliberation room and judicial chambers            

            1. The deliberation room. The functionality of the jury’s space for deliberation could evolve along the same lines as the courtroom:  at the beginning, playback technology will be deployed within the traditional space to improve the group’s retrieval and analysis of information; and later on, additional communications technology will be used to eliminate the requirement that the jury be physically together at the same time and place.   Ultimately, the entire jury process including screening and voir dire as well as deliberating to a decision, could be conducted on-line. 

            A most modest beginning of the first trend can be seen in a loosening of prohibitions on juror note-taking. Absent knowledge of judicial opinions to the contrary, allowing jurors to take notes during trial and use them during deliberation seems to be a reasonable way to support accurate fact-finding––an application of very low technology.  It appears that the traditional judicial resistance to note-taking is weakening, and research provides reassurance that permitting the practice is unlikely to threaten the integrity of the jury process and may even do some good.[24] 

            Though the rate of change may be slow, we can expect a trend toward permitting the jury to review evidence and testimony that was presented electronically during trial.  The trend will be driven by the increasing use of electronically-driven displays in traditional courtrooms.  The rationales for prohibiting review of these materials will weaken as the ease with which they can be reviewed increases. 

            Practically equal to the symbolic significance of the public trials is the symbolic significance of the jury deliberating face-to-face behind a wall of complete confidentiality.  Anyone who doubts the ferocity with which the sanctity of the jury room’s privacy is defended by elected officials need only read the transcript of the Congressional hearings about the court-approved jury eavesdropping conducted by University of Chicago researchers in Wichita, Kansas during the 1950s.[25]  Yet even this wall has been breached, as in Arizona and Wisconsin where the deliberations of state court jurors have been videotaped (with their knowledge) and subsequently broadcast on national television.[26]  The co-location of jurors during deliberations, including their sequestration in extreme cases, must be justified by a need to protect them from influence and intimidation (and perhaps to keep them focused on the task and encourage a speedy decision) rather than by a belief that the accuracy and completeness of their deliberative process are improved by keeping them confined for hours at a time in a small room. 

            Can we imagine a system in which the jury is empaneled in a virtual courtroom and deliberates in a virtual space protected completely against intrusion?  One could probably design and implement such a system, given the context of a virtual trial to begin with.   It is more difficult to imagine a sufficient rationale and showing of cost-effectiveness, particularly in the context of a typical cause of action, fact pattern, and use of a lay jury.  As with the trial itself, the path of evolution may begin with activities that are specialized (a trial by experts before a blue-ribbon jury or panel of judges) or with proceedings that are located in the shadow of the courthouse, rather than in the traditional spaces with rich symbolic significance.[27] 

            2.  The chambers.  There are two questions to ask about the impact of technology on federal judicial chambers:  1) How will complete inter-connectivity affect the current architectural and office practices?  2) How can the potential of new systems and software improve the analytic and deliberative functions of the judge and chambers legal staff? 

                        a.  The space. The federal judge’s private space in the courthouse resembles a successful solo practitioner’s office.  There is an ample library, comfortable space for two or more law clerks, one or more secretaries, and, in some districts, the judge’s courtroom deputy (who otherwise sits in space assigned to the Clerk).  There is a private bathroom and perhaps a shower and small kitchen. There are powerful networked PC’s on the desks with direct access to electronic dockets, dial-out access to one or more fee sites, and perhaps connections to the net and a Web browser.  The judge has free parking, access to an elevator and, in most courthouses, is surrounded by a reasonable degree of personal security. There is an adjacent courtroom that the judge  seldom if ever must share with other judges.  If the judge’s duties require holding court in another division in the district or circuit, one or more clerks will also make the trips.  The judge and staff will have comfortable and secure chambers space in the remote location.  

            Clearly, this is not a working environment that most people would choose to relinquish in favor of a virtual office on a laptop computer.  Yet if the judge wishes to access work files while at home, or to load files on a laptop for work on an airplane or other location, that option is also available.  In short, federal judges can already take advantage of the benefits of an electronic office without losing the substantial benefits of courthouse architecture and space allocations. 

                        b.  Decision support.   Competition among providers of fee sites and other legal research systems (e.g. CD-ROM) seems to assure that the fruits of new search, retrieval, and analytic capacities will be available to the marketplace whenever the demand will support the costs of development.  In general, advances that support the bar will also be useful to the bench.  In addition to commercial developments, there are two other sources of enhanced decision support for federal chambers.   In the specialized area of criminal sentencing, for example, there is a program developed by the United States Sentencing Commission, called ASSYST, that aids probation officers, or judges if they choose to use it, in working through offender and offense characteristics to arrive at sentencing ranges.  And there is a small but active group of academics who develop advanced retrieval and analytic systems.  These systems are advanced in that they incorporate software developments that are new enough to be interesting to computer scientists; they are not advanced in the sense of improving on the quality of legal research and analysis already occurring in federal judicial chambers.[28]  It is obvious, but nevertheless important to remember, that federal judges already have the services of one or more “research and analysis engines” far superior to anything now on the software market or likely to be, namely, their law clerks.  These budding experts will be able to benefit from any marginal enhancements to retrieval methods, particularly for highly specialized legal domains (e.g. patents, other scientific issues). 

            Perhaps a useful domain for development would be sophisticated checklists for factors that need to be considered in respect to case types or issues that recur frequently.[29] 

            Finally, it seems clear that judges and their staffs will benefit from innovations emerging out of work in the Clerk’s Office and library, in which the entire record of a case can be put into one document containing links to all the other materials required for a judicial decision.  Several models for how this might be accomplished have been published in the AI literature.  To one degree or another, they require that participants in a law suit alter their current practices, in order to take advantage of the processing and communications power of the model.  One example is discussed in the following paragraphs. 

            c.  The Next Step: Intelligence in Case Space.  In 1995, Philip Greenspun and Marc Lauritsen briefly described a Common Lisp computer program, the Knowledge Theorist for Attorneys (KTA), that begins with current conceptions of electronic case filing and moves to the next level.  They define an abstract “case space” with the following characteristics: 

“...documents received and produced by courts will eventually be marked up with codes that identify their contents in terms of abstract categories relevant to the judicial process.  For instance, paragraphs in complaints will be tagged according to their character as factual allegations, jurisdictional statements, legal claims or defenses, or requests for other judicial actions.  For each case in a particular court, a data structure will exist that contains the names and other characteristics of all parties, claims, witnesses, and decision makers, summaries of all formal legal events, and pointers to all documents filed or generated.  Conventional querying tools will allow one to ascertain, for example, the average award in product liability actions against asbestos manufacturers  in which the plaintiff was 45 years or older and resident in a southern state.  ...[W]e call this distributed database “case space.”[30]  

            Greenspun and Lauritsen designed KTA in part to eliminate paperflow while retaining all the procedures now accomplished through paper filings and retrievals.  Their goal for research was to make the grain of analysis much finer than it is currently in court databases by marking natural units of text (paragraphs?) with tags to identify their status in the advocate’s argument.  Users in different categories (judges, court clerks, advocates, the public, etc.) would have Web access to appropriate slices of the database.  For the judge, the flow of the case would be laid out graphically, and key elements, as identified by the software engine, would be highlighted.  Greenspun and Lauritsen’s article provides an example of such a display based loosely on an actual consumer complaint case.[31] 

            Greenspun and Lauritsen’s model is in one sense conservative because it strives to sustain the feel of information flow in a traditional paper-based litigation environment and because it avoids full-text or natural language searching in favor of codes and indexes.  It is very progressive, nevertheless, because it comprehends the entirety of how information flows in cases, and it places the flow on-line.  As a tool for judges, advocates, and scholars, and other constituencies interested in ongoing litigation, the implementation of a system like KTA in a court could be very useful.