The current status of the (virtual) courts

Originally published on the Legal Executive Institute

By Joseph Raczynski

Likely the single most salient after-effect of the current pandemic on the legal landscape is its impact on the courts. Previously, the variance of their technological proficiency ranged from fundamentally unchanged over the last 100 years, to jurisdictions that embraced a technological bent forward over the last decade.

Indeed, because of the pandemic, the speed of change has been unparalleled, pushing courts from hopeful murmurs of being virtual in a decade’s time, to courts functioning virtually within two weeks.

The state of the courts

Recently I listened to a pair of judges on a recent ILTA webinar who embodied the technological divide seen in courts around the United States. In Maryland, Judge Paul W. Grimm, District Judge for the U.S. District Court for the District of Maryland, said the traditional rules of criminal procedure inhibited hearings. In the Court’s code, “the rules state that the defendant has a right to be in court, a right to be present.”

The Court’s interpretation, the defendant must be in court, physically. It took the Coronavirus Aid, Relief, and Economic Security Act (CARES) to give permission for the courts to adjust to less draconian dogma. On the civil side, it appears Maryland is slightly more progressive. If the individual defendant elects “to decline” to be present in the courtroom, the case then can proceed virtually. In Maryland, the rules are more restrictive for criminal cases than in other states.

In the state of Texas, conversely, courts were able to perform nearly all proceedings virtually. Judge Emily Miskel from the 470th District Court in Collin County, noted on the webinar that she has a very tech-forward Office of Court Administration. That office tested multiple remote hearing platforms, settling on Zoom for the entire state of Texas. Initially the state courts assumed utilization would center on emergencies, but it worked so satisfactorily, that they scaled to nearly all cases. Boosting the ability to conduct these hearings was their forward-leaning court management infrastructure. “Statewide electronic filings are all done online” and have been for years, Judge Miskel said.

Building on their demonstrated progressiveness, Texas conducted five pilot remote jury trials. Mary C. McQueen, President of the National Center for State Courts, recently noted that Judge Miskel had a court date with history on May 18, when she and Judge Keith Dean presided over the nation’s first-ever remote jury trial. Jurors connected via cell phones, computer tablets, and laptops. They appeared from their home offices, living rooms, and backyards. Judge

Technology & the new benefits

Overall, the country’s courts are on a wild disparity spectrum in their use of technology. In recent times I learned of one court that only takes bankruptcy filings via FAX, not email, website, mail, or in person. So, what is the road ahead for courts embracing technology?

Platforms

Secure court management platforms that allow courts to go digital with filings, decisions, case management, docketing, calendaring, and video capabilities are essential. Each one of these components are modular in nature, but strung together can create workflows for the court and all parties involved.

The digitization of data, enabling alerts, filings, and all other facets will create a foundation for the courts to function more seamlessly. There are many roles that adapted years ago tangentially or directly connected to the courts, like research, discovery, and depositions; but the biggest hurdle for most have been virtual video courtrooms that are enabled by and connected to a court management platform.

Video

Despite some early security stumbles, Zoom has proven to be the venue of choice of the courts for video meetings, which may be one of the most critical parts to the process. Microsoft Teams appears to be second choice for video interactions.

The State Bar of Texas polled all of their attorneys and asked for impressions of Zoom. According to Judge Miskel, 76% of the attorneys had used Zoom for legal work; 94% had no issues with their client using it; 93% found it to be positive or neutral for their hearings; 85% would recommend using it; and 73% felt it was effective in relation to the courts.

Some of the features that resonate for the judges and attorneys using Zoom are the breakout rooms, which allow for potential juror deliberation in a sealed room. For criminal cases, several judges require defendants be in rooms with cameras that pan and zoom to assure no coaching occurs. The ability to rename those appearing before the judge — their display names on Zoom — is a big feature. Additionally, there is language interpretation functionality, which can better serve more remote locations.

Access to Justice

These technologies have proven to offer greater access to justice, judges say. The courts have found that people with hourly jobs or non-flexible schedules, could join remotely more easily from their job. One judge mentioned recently that during a virtual child custody hearing, the mother joined from an empty church, which was adjacent to her retail store. The demands of her job would not have permitted her to be physically present in court.

Judges also found that defendants and plaintiffs are far more likely to engage because the familiarity of using video on their phones. It was less intimating than being physically present in court.

Speed of delivery

Another judge recently mentioned that the speed of delivery is now fantastically faster. Judges can make decisions rapidly without the need for as many hearings or elongated in-person processes.

Decentralized justice: Online dispute resolution

Online dispute resolution (ODR) is another path forward into the future of technology that impacts the courts. The next phase is starkly innovative. Legal tech company Kleros stated that in recent years, new approaches to dispute resolution have emerged, with contributions coming from such areas as blockchain, cryptography, ODR, game theory, and mechanism design. Fundamentally these opt-in systems seek to “leverage the willingness of peers to adjudicate disputes or, more generally, assess situations that require an impartial and fair outcome,” Kleros reported.

What is profoundly different is the idea of decentralized justice, the move toward decisions emanating from a network of randomly selected, lay peers.

The recent and fundamental changes to the courts is astonishing. What once was a dream for some and unfathomable to others, has been thrust into the light. Today, the United States has functioning virtual courts, hearing real cases. Though much of the infrastructure is tapped and patched together, it serves as a baseline for growth.

The eventual goal is a court management system, integrating secure ease of access, providing a platform for fair justice, and allowing coordination of cases for the masses — all virtually.

Increasingly Cloudy — Law Firms Continue the Flight into the Storage Heavens and What the Future Holds

Originally published on the Legal Executive Institute

By Joseph Raczynski

With the recently released ILTA Technology Survey there is little question that Cloud adoption is drifting upward at law firms. I have also seen this trend through recent conversations with law firm CIOs and CTOs. The shift is real. ILTA’s survey qualified this change to outsourced storage, rising to 62% in 2016, from 51% in 2015. This is a solid leap forward year over year.

cloud

ILTA Annual Legal Technology Survey 2016

While the majority of responding law firms lean in favor of Cloud technology, a certain subset of firms will stay the course and continue to opt-out. The primary reason given for avoiding the Cloud is client demand. That said, I have seen some cracks developing in the tough exterior of this conservative approach.

Given recent data breaches at law firms, I more frequently hear that clients tend to feel increasingly comfortable with a secured and vetted provider than allowing their law firms to continue hosting the data themselves. Security is the overarching reason. If a firm chooses a reliable Cloud provider, the likelihood of that provider having real-time monitoring, enhanced security application layers, and the most up-to-date services — especially compared to a typical law firm — is much more likely. In short, most firms would be better suited to use a top Cloud service rather than subjecting themselves to a multitude of cybersecurity issues by manning the wall alone.

Indeed, the resources and skills needed for the level of protection clients are demanding — demands that are growing more complicated daily — is normally beyond most law firms’ resources with regard to personnel and technology. The old adage is fitting in this case: “Do what you do best.” And maintaining storage may no longer fall into this space for the typical law firm.

Infinite Storage and What Comes Next

The largest Cloud providers are preparing for a meaningful change in this space over the next 10 years of growth. Clearly, storage is becoming very inexpensive as hardware prices drop. This leads us to what I have previously discussed — a time of Infinite Memory. When this happens (and we are very close now), the next significant change will be to the services model in this space. Five of the largest Cloud providers — Google, Amazon, Microsoft, SalesForce and IBM — are all preparing for it.

Artificial Intelligence as a Service (AIaaS)

More importantly, no longer will the Cloud be solely about storage. Instead, it will be more about the services — this has existed with SaaS- (Software as a Service)-based solutions for a while, but this is going to change even more in the next several years. The philosophy is that these large Cloud providers will probably start giving storage away for free. The next phase is leveraging some of the more emerging technologies in the Cloud, with Artificial Intelligence as a Service (AIaaS) being the next great jump forward.

The simple idea is that these providers will start charging for add-on services that nearly every organization will have to have in order to compete. If you do not have the latest AI, you may be out of the game quickly. These new services will compel those firms and companies still sitting on the sidelines into the game.

A bit further out, I see Cloud providers also getting into the Blockchain space. Essentially Blockchain is a decentralized database which stores encrypted information. It makes that data easily available to those who are allowed access to it. All of this information runs on services, and the Cloud will be able to handle this with aplomb.

Without a doubt, law firms’ reliance on the Cloud is growing quickly, and it is only a matter of time before it becomes more ubiquitous and accepted than our current state of 63% adoption.

Twitter Unlocking Courtroom Doors?

By Joseph Raczynski

For a seemingly innocuous 140 characters, Twitter continues to rouse evocative legal discourse.
The newest twist for Twitter consists of judges grappling with the question of what place, if any, Twitter has in the courtroom.  According to a recent article in Time, the United States Supreme Court has yet to rule on Twitter’s use in the courtroom.  The lower courts are divided about its role; some tolerate tweets by attorneys during criminal proceedings, while others forbid such activity altogether.

Helping to further spark the discussion, recently there was much hubbub about the comedian Steve Martin (@STEVEMARTINTOGO) who, while on jury duty, was tweeting about his experiences.  He quipped multiple times, tweeting:

REPORT FROM JURY DUTY: Lunch break. Discussing case with news media gives me chance to promote my book.

REPORT FROM JURY DUDY [sic]: Defendant running for exit. Not to escape, but out of disgust. Judge wearing NOTHING under his robes. We are adjourned until tomorrow.

FINAL REPORT FROM JURY DUTY: Defendant sentenced to death. Feeling bad. Wait…call from REAL JURORS OF BEVERLY HILLS. WORTH IT!

Technology, like Twitter use in the courtroom, poses an interesting dilemma.  It is a debate as aged as the legal system itself, which is directed at openness, fairness, and access to the justice system.  How unrestricted do we want our legal system to be?  What information is appropriate to be disclosed to the mass public?  Looking at the Founding Fathers for guidance on the breadth of access to public information, perhaps we have a glimpse in to their intent.  The hallowed Independence Hall in Philadelphia originally had been built on the belief that there must be open trials, and as such, no doors were placed on the courtroom.  Therefore, is it not plausible to argue that the use of Twitter in courts is consistent with the free flow of information our forefathers had intended in our “open” court system?