by Alan Asay (alana@courtlink.utcourts.gov)
Utah Administrative Office of the Courts Information Technology Division
The Vision
In its 1991 report, the Utah judiciary's Commission on Justice in the Twenty-first Century prescribed electronic filing of court documents in its short- and long-term goals, stating:
Short Term Goals (1-5 Years)
3. The courts should permit the initiation of any case by electronic filing from remote locations.
....
Long Term Goals (5-10 Years)
1. Records in all courts should be automated and should be electronically retrievable by the bar, other governmental agencies, the public, and the media from remote locations, subject to appropriate protections for privacy, confidentiality and security interests in keeping with existing constitutional and statutory requirements.
2. Imaging systems should replace or supplement present filing systems in all courts of record.
3. The judicial system should move to an essentially "paperless" court.[1]
With open systems installed, the courts are in a position to begin realizing the vision of a judicial system in which records, including case files, are kept electronically, insofar as practicable.
Electronic files have the following advantages over paper files:
Computers can move documents into court faster and less expensively than paper carrying systems such as the Postal Service or couriers, and with superior security, if privacy-enhanced mail and automatic confirmation are used.
Computers are faster and less expensive than humans in doing the step-and-fetch work of document retrieval, including branching by references from one document to others and from them to still others. Computer programs for displaying text often include hypertext functions enabling a reader to point a mouse at a citation, click the mouse button, and look up the citation, saving the time of pulling paper files and volumes off shelves, flipping pages, then replacing the files and volumes.
Computers can also search out relevant passages better in situations where no citation points the way. Searching by computer for words or phrases has become a widely accepted technique for locating the critical needle in a haystack of text.
Because computers copy information easily and rapidly, they greatly reduce the bother of tracking paper file custody and coping with lost files.
Because computers communicate with each other well, they enable document retrieval and copying from remote locations. Remote access to the court's official case file benefits lawyers; an inexpensive, mass-marketed communications link can bring a court's case files onto a lawyer's desktop.
Computerized documents require less physical space to store than paper.
Computer-readable documents can interact with other computer-based systems. For example, a document giving notice of an upcoming hearing could interact with a computerized calendaring system. Documents initiating a criminal or divorce case are often packed with data gathered for demographic or criminal history purposes; in electronic form, such a document could transfer data into a database without human data entry and consequent errors, high cost, and time lags.
Electronic communications media permit easy, quick access to electronic records.
However, the prospect of a paperless court has the following drawbacks:
Display technology: Conventional computer monitors are more limited than paper in display capabilities. Paper ordinarily presents a more fine-grained and larger image than most PC monitors. Display hardware capable of paper's image quality is expensive.
Portability: Paper can go more places more easily than a computer and monitor, even a notebook computer. However, this drawback does not weigh very heavily, because court case files are generally used only on court premises where computers are almost ubiquitous and computer records can be turned into portable paper simply by printing them out. In a way, computerized files are more portable, because they can be transferred to any other computer.
Lack of familiarity with computers: Many users of court records lack familiarity with computers and are not comfortable in using them.
Myths of super-paper: Paper records seem to some people to be more permanent and reliable than electronic records, which may appear more ephemeral because they are copied onto a luminescent screen and into computer memory which depends on power availability. In addition, records stored on magnetic media can be erased or altered without leaving traces of the original. However, erasure and alteration are easy to control, and non-magnetic media can fix the record in a medium as durable as paper. The notion that paper is more durable than computer media boils down to a need to take the management action necessary to assure that computer security, failsafes, and failure-proofing yield a medium as safe as paper.
The down side is far outweighed by the advantages of electronic filing, but because some of the down-side hurdles can be cleared only by changing entrenched ways of doing business, progress toward a paperless court needs to be gradual. The following three stages can be envisioned:
1. Electronic filing is an optional alternative to paper filing. Electronically filed documents are also kept in paper form, and a document or case file can be used in either paper or electronic forms, at the user's option. Electronically filed documents have important advantages over paper filings, so use of the electronic form becomes common and trusted.
2. All documents are required to be filed in electronic form, and programs for searching and retrieving electronic documents are available. The document system is fully integrated into the court's case management and legal research systems. The national standards for using and validating electronic signatures are fully implemented. Time rules are reliably calculated based on the date on which a document is electronically filed. Because of its superior utility, the electronic form comes to be more extensively used than the paper form.
3. The general preference for electronic documents has made paper documents redundant, and the reliability of electronic documents is beyond question. The Judicial Council therefore discontinues the keeping of nonevidentiary court files on paper, except perhaps in pro se or hardship cases.[2]
During 1993 and early 1994, the AOC Information Technology Division developed the capability of realizing stage 1, a fully functional, but not mandatory, paperless case file system. Currently, a pilot project is underway with the Salt Lake County Attorney. As soon as the pilot is completed and the electronic filing system is ready for general implementation, others may begin electronically filing court documents.
Recommendation for How a Fully Implemented Electronic Filing System Would Work
The following steps sketch how how case file documents are electronically filed in court and used electronically:
1. The filing attorney's legal secretary types the court document using whatever word processor the law office has, and the document is edited until it is in final form.
2. When the document is in final form, it is marked up in a prescribed way using Standard Generalized Markup Language (SGML), a standard, vendor-neutral technology for identifying the content of documents. Many over-the-counter software products from companies including WordPerfect, Lotus, and Microsoft are available to make SGML markup easy. The courts will also cooperate with vendors in providing user-friendly, efficient front-ends to the electronic filing system. Two such vendors have already stepped forward; Mead Data Central and Uinta Business Systems have offered to provide front-end packages.
3. The attorney digitally signs the document. An digital signature consists of encapsulating the signed text and then applying a distinctive alphanumeric key to it, a key known only to the signer. By applying another key unique to the signer but more widely known than the private key, the court can verify that the signature is genuine, but neither the court nor anyone else without the signer's key can affix or reproduce the electronic signature. Besides authenticating the signer's identity, the electronic signature assures the integrity of the document in transit; in other words, it makes spoliation apparent, including any spoliation in transit. The courts will provide basic, public domain software for affixing a digital signature, and vendors will likely provide enhanced signature software as well. Digital signature technology is governed by international standards, so many competing but compatible products exist.
4. The attorney or secretary electronically mails the document to courtlink, a central communications computer at AOC. The electronic mail would be addressed to a pseudo-user such as "efiler". The document can be mailed via Internet mail available from many services such as CompuServe, America On-Line, Prodigy, etc. The mail can also be sent by dialing into the Utah Courts Information XChange, the courts' electronic information counter, or it can be mailed from the law office's local electronic mail system, if it is connected to courtlink via a mail gateway or the Internet. The courts use industry-standard mail systems for which gateways are readily available for most mail systems.
5. When courtlink receives mail addressed to "efiler",[3] it opens it and makes an archival copy on a permanent medium. It then checks to make sure that the document is not a virus or other program. If the document is text, the courts' SGML software checks for required document content, for example, that the document has a case number, parties' names, etc. If required data is not identifiable, either because it is missing or not correctly marked, the document is returned immediately via electronic mail with a message stating that the document contains a critical error and informing the sender of the reason for rejection. If the document appears acceptable to the SGML software, it extracts the data needed for the local court database and creates a document in Folio[4] format. It then date- and time-stamps the filing and forwards the extracted data and the Folio document from courtlink to the local court's data server, the machine on which the local court's database resides.
6. The local data server:
7. The local document server incorporates the document into the electronic case file, which includes all of the functionality of a paper case file and more. A reader can highlight or place notes in the text, without altering the original. A double-click of the mouse on a citation will bring up the cited case statute, or administrative rule. A click on the "Contents" button automatically generates a table of contents of the case file, showing the documents it contains and the headings within those documents.
8. The filing party is informed by return e-mail of the successful or failed electronic filing. If the filing failed, the message notes the reasons for failure and suggests corrective action. The message also fully reports all action taken in the court database as a result of the filing. The filing party can also check the court database via XChange to verify filing, and can view or copy the document as filed on the court computer in the second phase of electronic filing, when retrieval software is available,
Completing an entire electronic filing transaction takes about one or two minutes, depending on the speed of the electronic connection to the courts.
After electronic filing, documents could be viewed, copied, printed, or word-searched from any court computer or by users outside the courthouse via the XChange system.[5] Automatic links to legal reference documents would also be available from filed documents, if citations follow the Uniform System of Citation ("Bluebook")[6] and the local user has access to Utah Law on Disc.[7]
Going the Full Distance
Electronic filing is almost ready for full implementation. The core system has been up and running for about six months, but without the following features:
Digital Signatures:
The courts have not incorporated software to handle digital signatures. Such software is readily available from several reliable sources, and openings were left for its inclusion in the electronic filing system as developed so far.
Legislation and institutional infrastructure need to be put in place to make digital signatures effective and available.
Case file:
Some initial design work has been completed and the existing electronic filing system automatically creates document ready to be added to the case file, but the system needs to be extended so that it appends the incoming document to the appropriate electronic case file. The Folio software also needs to be fully deployed, to make electronic case files available to all users, secure, and usable. The Folio software also needs to print out a copy of the incoming document for the paper case file, as long as the paper case file remains the principal repository of documents in a case.
Completion of these tasks will probably take until the middle of next year. Then, electronic filing will be ready for full implementation.