I joined SCL in 1985 when I was nearly 50. I had just spent two years as Counsel to the Sizewell Inquiry watching the impact of modern technology in a world which possessed far wider horizons than are contemplated in the philosophy of most practising members of the Bar, and I was sure that sensible investment in applied technology could do a lot to make the practice of the law cheaper and more efficient. Soon afterwards, I became the chairman of the Bar’s first Computer Committee, and I moved into a world where the hardy few still had the courage of their early convictions, and the doubters were beset by those who said ‘I told you so’, as enthusiastic entrepreneurs oversold their products, not realising quite how complicated the law’s arrangements really are.
In the 13 years since then, I have been watching, in Churchill’s words, those who were once half asleep become half ready. Now we have started storming the highest places, and I am beginning to think that all that early proselytising was worth while after all. In this article, I will build on what I said in my speech at the BILETA conference in Dublin in March this year, concentrating, at the editor’s request, rather more on the future than on the past.1
Lessons from Overseas
First, a bit about the present. I think it is useful to look overseas first before coming back to England. I do this because I am conscious that some solicitors see the development of IT in the courts merely as something which will cost them money, and do not yet possess the wider vision. Today, in Singapore and the United States, a trail is being blazed which we are bound to follow in due course. Systems of the type now being piloted in those two countries will allow judges to draw from some central location, either as images or searchable text, documents relating to the individual cases on which they are working (such as full case histories, pleadings, affidavits, orders and document bundles), and the way the courts do much of their business will be transformed.
EDF in the USA
The introduction of Portable Document Format (PDF) technology has removed a number of the technical problems that used to bedevil proposals to introduce electronic document filing (EDF) at courts. An early pilot experiment can be seen by visiting the website of the Bankruptcy Court of the Southern District of New York (see www.nysb.uscourts.gov). Anyone can visit this site and view the docket for a case and read the documents in the case file. A docket is a case chronology, which lists by date and case the documents filed by the parties and any court actions relating to the case. In the US federal court system all the dockets are electronic, and the entire case file is a public document. The docket contains hypertext links to the documents which are in PDF format, and once the PDF Reader has been downloaded from the Adobe site (reached by clicking a pointer) the documents can be opened and searched. The searcher can select, magnify and print text from the documents in the file, but will not be able to alter the original document.
Where electronic document filing is used, litigants in person are permitted to scan in their documents at court offices. At present no fee is charged for this service. In the United States today, half the law firms can cope with the electronic age. The private sector will provide the electronic service.
The attractions of electronic filing are, of course, that it involves faster and cheaper filing than paper filing; enables faster and cheaper document retrieval; permits faster and cheaper text searches; eliminates custody problems such as lost files by electronic copying and fewer clerical data errors; allows remote access by courts and advocates; permits cheaper storage; and creates the ability to interact with other computer systems such as those that are used in criminal justice and domestic relations courts. Senior Court Service directors with whom I have discussed these matters readily accept all these advantages of EDF.
The Utah state court system has one of the most advanced projects. Within five years Utah hopes to make possible the initiation of any case by electronic filing, and within 10 years to have a paperless system electronically accessible from remote locations by the Bar, government agencies, the media and the public. In a pilot project in Maryland, a proprietary path to electronic filing called JusticeLINK is being used, at least initially. The court’s 42,000 cases each year are expected to grow to 65,000 by the year 2000, and the court staff moves about 1.7 million documents each year at an estimated personnel cost of $800,000. It is hoped that the use of JusticeLINK will largely eliminate that paper movement by enabling any of the court’s 20 judges to call up any file instantaneously and that it will reduce from 15 days to 15 minutes the time needed to file and docket a case. The system will be paid for by the fees charged to the lawyers, including a subscription fee of $175, a filing fee of $15 per document, and $50 per minute for computer time.
So far as the US federal courts are concerned, their first pilot project began in the US Bankruptcy court in 1990. This national court system receives 800,000 to 950,000 new cases a year, and the court has revised its basic pleading forms to make them more computer readable. An EDI standard was then prepared for initiating and responding to a bankruptcy proceeding, and two such standards received official approval in 1995. They are the first EDI standards intended primarily for text, and specifically legal text, and the experience gained from the use of these standards will be invaluable in advancing the availability of electronic filing.
The first pilot program for an individual case in the federal courts was used in a mass tort action brought by a very large number of claimants in a maritime asbestos case filed in January 1996 in Ohio. I was told a year ago that the system was already managing over 5,000 such cases and that it had saved the court from handling over 100,000 paper documents. Fifty attorneys not only submitted those documents in electronic form, but also simultaneously and automatically created the court’s official docket entries. It was expected that 90% of the 400 law firms involved in these cases would participate in the project which will eventually be fee-based.
A similar Internet-based system began operation in New York in November 1996, and another started in New Mexico early in 1997. A number of other courts have begun constructing their own electronic case files by having court staff scan paper documents into their systems. I brought back from Washington at the end of May last year a 45-page consultation paper entitled ‘Electronic Case Files in the Federal Courts: A Preliminary Examination of Goals, Issues and the Road Ahead’, which shows very clearly the route down which the courts in the United States are now proceeding very quickly, with the full authority of Congress. In the United States it is the judiciary, the third arm of Government, and not the executive, which runs the federal judicial system, and in 1990 the Senate voted the federal judiciary US $70 million for the express purpose of automating the federal court system.
In the United States, once an EDF system is in place at a court, authorised users (including judges, court administrative staff and the legal representatives of the parties) can use the system for more sophisticated uses. Password protected modules allow parties to file PDF documents with the court, and as soon as this happens the other parties are told by e-mail of the new filing, so that they can search the file. It is possible to view, by case or judge, the date by which an action in the case is due, and the parties can communicate suitable hearing dates to the court electronically, although these must of course be approved by the court prior to listing. As the New York system stands at present, the judge can view pending motions and can issue orders from a specified list. Needless to say, tight controls prevent anyone from accessing files to which they are not permitted to have access under court rules.
All the documents entered in the court’s system are electronically stamped to certify their authenticity. The system can also generate a record of professional fees claimed and awarded, which can be listed by case or recipient. A firm reluctant to participate in EDF is at present permitted to file documents on disk or on paper. The court scans the paper (where relevant) and then converts the file to EDF and enters it on the system.
Development costs in the New York project have been minimal because of the heavy reliance on Internet technology. Future plans include automatic generation of case management reports for judges and staff.
EFS in Singapore
Turning to Singapore, in March 1997 their courts launched the first phase of their new Electronic Filing System (EFS). This is the first of four components of a system that is intended eventually to do away with the use of paper documents in the conduct of civil litigation. It allows law firms to transmit court documents electronically to the court registry for filing. This requires a system at the law firm and a system at the court registry. The law firm’s system permits documents to be prepared and transmitted electronically to the registry through a gateway maintained by EFS vendors. The court registry’s system allows electronic documents to be received and processed by the registry: the process may include electronic signing and sealing, acknowledging or rejecting, transmitting the document back to the law firm and receiving it for a hearing. Eight of the largest law firms were invited to be the pilot users of this system, and there are now a total of 40 law firms participating.
Service bureaux have been set up in Singapore which charge a fee for enabling documents to be converted to a digital form and filed electronically. These are provided for the use of litigants in person and for law firms which do not have the necessary equipment themselves, and in the early stages many firms are expected to have to rely on such services. The Singapore Government is now working with law firms to enable them to equip themselves with the necessary hardware, software and communications links (ISDN lines) to enable them to operate the electronic system on their own, and lawyers and their staff are also receiving training on the new system. Already a large range of documents must be filed at court electronically, and these requirements are bound to increase. In due course a sub-system will be available to enable the court registry to serve documents electronically on behalf of law firms, and other components of the system will enable people to search for information about cases which have been concluded or are pending in court. People will also be able to use their own computer terminals to retrieve copies of documents from any court file, past or current. The court rooms and judges’ rooms are currently being wired up.
The entire project is estimated to cost about S$80 million, with the public sector contributing the development cost of S$30 million. In return for a very large amount of upfront investment in the EFS, Singapore hopes to reap significant benefits from it. The costs savings when the system is fully implemented are expected to be in the region of S$4million per year. A Singaporean judge has described the position in these terms.
Law firms will not have to use valuable manpower for mundane tasks like filing and serving documents, checking court files and obtaining information, and people can be retrained to do more value-added work. The litigation lawyer will be able to work where he likes, provided he has access to a good phone line. On the court administration side, problems associated with the management of vast amounts of paper – the misfiling and loss of documents, delays in the retrieval of files, and the shortage of manpower and of storage space – will become a thing of the past. The speed and convenience of doing things will also be pluses in the equation, and although we expect unforeseen minuses as well, we hope that we will emerge with significant and worthwhile gains all round.
Building Blocks for England and Wales
In England and Wales we are not yet nearly so far advanced, for reasons concerned with our structure of government and the way in which government IT projects have traditionally been financed. Here the judges do not run the courts, and we do not, as in the United States, conduct a direct dialogue with Parliament about the best ways of carrying things forward: interestingly, in the Republic of Ireland, legislation is now being passed which will give Irish judges a similar role to US federal judges in directing the modernisation of their courts. Here the Lord Chancellor’s Department (LCD), which supports the courts, is a small department, and over the last ten years its credibility with the Treasury was seriously damaged because of the way that unbudgeted legal aid expenditure went on soaring. I believe that expenditure on IT suffered as a result, and we were certainly not seeing the results of the imaginative forward investment in IT which other comparable countries, and not only the United States and Singapore, have enjoyed.
In this country the emphasis up till now has been on back-office investment. To justify IT expenditure on capital projects, the department had to prove the likelihood of savings in the short-term future, and this meant the introduction of computer systems to carry out more efficiently work processes which had until then been carried out manually by clerical staff. The three best-known examples of this were:
CREST, a back-office system for Crown Court staff which was designed in the late 1980s and rolled out into all our Crown Courts about six years ago
the Summons Production Centre at Northampton, which provides a central computerised service for bulk issuers of default summonses for debt collection
CASEMAN, a system rolled out last year to help with back-office functions in our county courts.
Not nearly as much attention was paid to the needs of front-office staff, by which I mean the judges and their support staff in court, or to the needs of court users, apart from the big battalions like British Gas or the water companies. It was all very depressing, as we watched other countries race ahead in the provision they made for their judges, but year after year we would be told the money simply wasn’t there.
I was watching all this unfold from the sidelines as a founder-member of ITAC (the IT and the Courts Committee) and, since 1991, the chairman of its Civil Litigation sub-committee. I was also a member of JSCIT (the Judges’ Standing Committee on IT), which was formed in the same year. In my speech in Dublin I described the history of JUDITH, the project started in 1992 to supply English judges with computers, and I will not repeat this story here. Instead, I will pick up the history of events in the summer of last year when I was appointed to succeed Lord Justice Saville (now Lord Saville and a Vice-President of SCL) as chairman of JSCIT, with a seat on the Judges’s Council.2
JUDITH Project Reports
Close to the top of the pile of papers Mark Saville bequeathed me were the two reports written by Joyce Plotnikoff and Richard Woolfson at the end of the first stage of the JUDITH project in 1996. I think it is worth saying a bit about these reports, because they provided the essential framework for what was to follow. By that time, out of 1,100 full-time judges, about 380 had their JUDITH computers, and about 100 non-JUDITH judges who possessed their own computers were being supplied with the FELIX communications software and a modem. There were another 200 on the waiting list.
Joyce and Richard provided one report on the Project itself, and a quite separate report on the possibilities for the future. At one level JUDITH had been an immense success, as was evident from the enthusiasm of everyone whom they consulted during their study. Richard Susskind, who watched the whole thing from the sidelines, took the view that it was because of judicial enthusiasm JUDITH had succeeded in spite of itself. By this he was referring to the lack of attention which had been paid to the need to resource it properly, particularly from a training perspective. Because funding had been so limited, we felt that we had to give priority to equipping as many judges as possible from such funds as we had. Such training as occurred was provided by judges themselves.
The first report said that everybody, judges and civil servants alike, with whom its authors had discussed the project had felt it had made a significant positive contribution. Descriptions of it included the words ‘resounding’, ‘brilliant’ and ‘tremendously valuable’. They reported, in unqualified terms, that the achievements of the project had been impressive. Two innovations which potentially had wide application in both the civil and criminal process were the use of their computers by some judges to generate copies of their orders and directions in court and to distribute them to the parties on the spot, and the use of computers to expedite the process of releasing cases from a High Court judge to an experienced circuit judge (called a Section 9 judge). They also reported that the arrival of FELIX had had a profound effect on judges’ ability to communicate with each other, particularly in the provinces.
When I read this, I expressed the cautious view to the Court Service that it would be unwise to conclude from the success of JUDITH, which flowed from the infectious enthusiasm of the most computer-literate members of the judiciary, that it would necessarily be easy to replicate this success when the use of computers was spread more widely, unless access to the technology was made a good deal simpler and a lot more attention was paid to the need for training.
The first report also identified a number of concerns which had been obvious to us for a very long time. The first, and most important, of these was the need to provide resources for training. The JUDITH Project Board had never been resourced for training judges (some of whom had very limited computer skills) in a properly structured and professional way. Another criticism related to the lack of structure or focus to the project, which was again inevitable owing to the comparative lack of staff to support the judges who were running it. There were also problems created by the wide variety of different applications which individual judges added to their systems (again, fairly inevitable given the comparatively basic equipment with which they were provided and the unstructured environment in which they were operating), and problems connected with the use of helpdesk support, lack of user discipline, the lack of motivation of some of the judges to whom equipment was initially issued (which led to its non-use), and a number of different types of concerns about security.
Quite a lot of the computers allocated to the project in its early days were by now incapable of being upgraded, and they could be treated for all practical purposes as obsolete. The power and capacity of the Pentium desktops which were supplied to about 100 judges at a later stage of the project provided a much clearer indication of the likely scale of judges’ computer needs in future.
In addition to their recommendations on training, the consultants recommended unequivocally that funding should be made available to provide access to computers for all judges who wanted them. They also made a number of connected recommendations about the way in which the project might be brought under tighter control in the future, to meet the concerns they had identified.
One problem we have, which was not fully identified in the consultants’ excellent reports, is that judges are not deskbound office workers. They spend a lot of their days in court and they use their computers for their judicial jobs at home a great deal in the evenings and at weekends. Any forward planning had to take considerations like these into account. Of the 79 judges who answered a survey sent out by the consultants, 27 said they used their computers in court, 69 in chambers, 9 in lodgings, 11 while travelling and 71 at home: these figures are not, of course, cumulative. 81% of them said they made use of the portable nature of their machines. One very skilled district judge has said that for his work the three main requirements, so far as a computer is concerned, are portability, compatibility and adaptability. In other words, a future based on a ‘dumb’ terminal, with information downloaded from a central processor, might have some application in commercial situations but it was wholly unrealistic for judges.
At the end of their Futures Study, which described the way that technology might be harnessed in aid of judicial services in future, the consultants said that the challenge now was to create the organisational structures to realise their vision of the future. There were, however, some fundamental issues which had to be resolved first. Who should speak for the judiciary and how could they represent the whole range of judicial opinion within a single coherent view? What priority would be given to judicial needs in planning the IT future given that the funding must come out of the Court Service budget? How would the needs of the legal profession and the other justice system agencies be taken into account?
They pointed out that in an integrated approach the services to be provided would have to be costed and prioritised according to the benefits they delivered to the justice system as a whole. These benefits might be in the form of cost savings or speedier case processing, but they might also result from improvements in the quality of justice. They said that any discussions must encompass, in particular, the ways in which judges could work more effectively with court and administrative staff. They should also take account of good practice encountered during their study, and the court library services and the Judicial Studies Board would have to be included among those who were consulted. They said, correctly, that integrating these different strands into a coherent strategy would require an understanding of the court environment, the judicial function and the technological options.
Changes to Court Service Structures
The JUDITH Project, and the consultants’ two reports, provided one set of building blocks. Another was created when the Court Service, instead of remaining a constituent part of LCD, was floated off as a semi-independent agency with much more overtly business-orientated objectives, and Electronic Data Services Ltd (EDS) were selected in October 1996 as their Private Finance Initiative supplier for court-based IT services over the next seven years. EDS secured this contract through its success in tendering for the initial contractual tasks identified by the Court Service, which were valued at about £10 million. These tasks were concerned with the final stages of development and the roll-out of the CASEMAN case-tracking system in county courts, together with on-going work on the Crown Court system (CREST) and other Court Service systems. The essence of a PFI contract is that the supplier takes the initial commercial risks and provides the upfront investment, for which it is rewarded by an income stream once the projects go into service.
In May 1997 the Court Service, with EDS’s assistance, completed a scoping study report in which it identified a number of different projects as possible candidates for computerisation and commented on the cost-saving potential of each project. The likely needs of the judiciary were identified in very general terms in this report, and an indicative cost of £5-10 million on a rolling basis was mentioned, although no attempt was made to identify cost savings in this particular context. The Court Service Management Board is now going through the process of commissioning from EDS at an agreed price the projects the Board selects. A year ago it was envisaged that the total cost of the EDS contract for all court-based operational needs would be £20-25 million, depending on the volume of business. To some extent future progress is dependent on the extent to which selected projects generate cost-savings which can be used to finance future projects, and on decisions made by the Lord Chancellor, whose department retains its central policy-making function, on the extent, for instance, to which the Government is really willing to accept the financial implications of Lord Woolf’s recommendations on the future of civil justice.
The EDS contract is structured on the basis that if in the Court Service’s opinion EDS does not offer value for money when it quotes a price for a future piece of work, the Court Service is at liberty to go elsewhere. Ian Hyams, the Head of the Court Service’s Information Systems Division, is in charge of the relevant contract management unit within the Court Service, and he and the Court Service Business Directors have regular meetings to review EDS’s performance and to discuss with its contract director any major problems that may have been encountered in working out the contract. If EDS’s services prove to be unsatisfactory, the Court Service would take early steps, long before the termination of the initial seven-year term, to prepare the ground for the possibility of installing an alternative PFI contractor once the initial contract term comes to an end.
Signs of Progress
Since the Scoping Study Report was published, there has been an enormous amount of progress. We now have a small representative group of judges, headed by Lord Saville, which meets relevant Court Service directors very regularly in a forum called JTG (the Judicial Technology Group), and EDS staff also join us there from time to time. While a number of projects are going forward which have very obvious cost-saving potential, resourcing the judges and front-office staff of the courts is now progressing, side by side, within two different planning time-frames, one of 0-1 years and the other of 0-3 years. A longer vision (of 0-10 years or more) is now being taken by two other groups which have recently been formed, one for civil justice and the other for criminal justice. Sir Brian Neill, my predececessor as President of SCL, who has now retired, represents the judiciary on the civil justice group because Lord Saville is now rather committed with other things.
Equipping Judges
In the short-term, the Court Service has resolved that every full-time judge who wants one should be supplied by an appropriate modern computer, equipped with Word for Windows and FELIX for Windows and a CD-ROM drive, and backed by proper training and technical support. I would like to think that this ambition could be accomplished within two years. Priority is being given to those on the JUDITH waiting list. Very recently 25 of them have been picked for a pilot project, in which particular attention will be paid by EDS, the Court Service and the Judicial Studies Board, to the type of training the judges will need. It is planned to provide four days’ training, at different times, for complete novices, and two days’ training for those who have already had quite a lot of experience. The evaluation reports at the end of the first week’s training in this pilot scheme were extremely positive.
Once this pilot project has been completed and evaluated, there will be a roll-out for the remaining 170 judges now on the waiting list. Attention will then be paid to the needs of new judges and of those who have been using the old JUDITH 186 CPU laptops. Alongside this there will be a pilot project to explore the possibilities of giving judges access to the Internet through a number of firewalls, and five judges are being picked as guinea-pigs for this purpose.
Internet Awareness
There is already intense interest among the senior judiciary in the possibilities created by the Internet. Laurie West-Knights, the vice-chairman of SCL, has given four one-hour demonstrations of the legal resources now available there to groups of Supreme Court judges (and their clerks) at the Royal Courts of Justice since last November, and over 30 people attended each demonstration. House of Lords judgments have been posted on the Internet for nearly 18 months now3, the new Court Service website4 looks most promising, and Smith Bernal, the official shorthandwriters, are now making available on their free website5 all the approved judgments from the two divisions of the Court of Appeal and the Crown Office List going back to May 1996. From now on, all such judgments will be posted there a month after they have been approved, and can be accessed even more quickly by subscribers to their fairly expensive subscription service. The Statute Law Database also looks like surfacing, after its long gestation period, in the Millennium year, and I am one of a group of judges who are being permitted online access to it in its present form (which is of limited value for a serving judge who possesses his own legal library, since the most modern statutes have not yet been given the same editorial treatment as the laws in force at 1991, the database’s base date).
Woolf and the Judges’ Input
At the same time as all this is going on, two different groups of judges are helping the Court Service plan the systems we will need when Lord Woolf’s civil justice reforms come into effect, and when judges will be taking a much more proactive role in managing the progress of cases. Partly by an accident of history, these two groups have hitherto adopted different techniques, but once again we are looking not only at what can be achieved in a comparatively short timespan, but also at where we hope to be going in the medium-term and long-term future.
The first of these groups is made up of four district judges, two circuit judges and a Queen’s Bench Master. Most of these judges have got a great deal of practical IT knowhow, and the group was originally set up to ensure that judicial needs were being properly taken into account when the CASEMAN project in the county court was reaching its final stages before roll-out. Bitter experience has shown us that with the best will in the world IT systems designers do not always understand the detailed ramifications of the court process. Recently this judicial group identified a problem when a judge had made three different costs orders, and the order production system had been designed to produce only one costs order per case. It had not been realised, for instance, that a court might make one order for costs inter partes, and another order for the legal aid taxation of the losing party’s own costs.
This group has now moved on to examine the different documents being produced by Court Service staff in anticipation of Woolf. There is, for instance, a Plain English Guide which is intended to set out the user requirements with pinpoint accuracy, and then an Output Based Specification which descends more heavily into IT-speak to describe what the system should be producing to meet those requirements. This is very much bottom-up stuff, being developed from CASEMAN, which was a pretty basic system, and because it was not drafted by lawyers (let alone judges) it does not always start in the way a judge would by analysing his or her needs. This team – and its Court Service counterparts – are faced with the difficulty that they are working towards a moving target, because the Rules Committee, which has the gargantuan task of approving a completely new set of Civil Procedure Rules, is not expected to finish its work for several months.
This work is taking up a massive amount of judicial time. The group started by being allowed time off to attend meetings in London, but were otherwise being expected to study all the documentation and liaise with each other by e-mail about it in the evenings and at weekends. It has now been realised that they must be released during court hours to do this work if their health or their family lives are not to collapse, and we are having continuing discussions with the Court Service about the amount of judge-release time which will be needed for this purpose.
The other, smaller, judicial group was formed three months ago. This is made up of two High Court judges and two Supreme Court Masters, one of each from the Queen’s Bench Division and the Chancery Division, whose job it is to set out the judicial requirements for the procedural judges who will be handling heavy multi-track actions in the High Court, and particularly at the Royal Courts of Justice. This group is being advised by Richard Susskind and by Mr Justice Pumfrey, a newly appointed High Court judge who has an immense amount of IT knowhow, and they are deliberately adopting a top-down approach. In other words, they are setting out the judicial requirement themselves in plain English, and then leaving it to Court Service staff to translate what they want into the language of Plain English Guides and Output Based Specifications, although, in liaison with the other group, they will of course be checking these for accuracy in due course. There is an immense amount of very detailed work to be done, in close collaboration with the Court Service and EDS, before this country can have a set of court-based IT systems of the quality its citizens deserve.
Consultative Groups and Meetings
The challenges of IT have already forced the different levels of the judiciary to work together for the greater good of every judge in the country. The work I have just been describing illustrates two further developments: the need for some judges to be released from court work to help to prepare these new IT systems, rather like the administrative judges who are so common on the other side of the Atlantic, and the need for senior judges to work very closely alongside senior Court Service directors and staff to plan the IT future of our court system in a collaborative way. Quite apart from the JTG meetings, both Lord Saville and I have been having meetings with Ian Hyams, the Court Service’s IT director, at least once a month since JTG was created last October. Lord Saville has tended to look after the long-term scene, while I have concentrated on planning the next three years. We expand these meetings from time to time. In January the two most senior representatives of EDS in England, along with their Court Service contract manager, visited my room in the law courts for a very valuable tripartite discussion about the way in which things might be moving over the longer term.
Future Development and the IT Strategy
I have already mentioned a two-year vision, in which every English judge who wants one will be equipped with a computer which he or she has been trained to use. Within three years, if not before, I would like to think that a Court Service Intranet, embracing the whole of the Court Service and the whole of the judiciary, will be in place. Although gaps in the Intranet will be made up by telephone links, much more electronic cabling is at present needed in our courts, particularly in judges’ rooms, and the necessary preparatory work is already underway. During the last long vacation over a million pounds were spent on installing backbone cabling in the Royal Courts of Justice where I work. I hope that work may be finished in six months time, before the new legal year starts in October. Once an Intranet is in place, FELIX will be a thing of the past, and we will have an up-to-date communications and messaging system, backed by all the necessary closed conferences we need, not only to assist in communications between judges, but also in communications between judges and court staff, and vice versa.
In January the Court Service Management Board approved an IT Strategy (see www.courtservice.gov.uk/hq_ind.htm) to which Lord Saville and I were encouraged to make a major contribution when it was in its final draft stages. We are both satisfied that in its final form the document reflects the strategies we have jointly agreed through the new JTG framework. Parts of it we might have written ourselves: perhaps we did. We will also be involved in monitoring progress towards achieving these strategies, so far as judges’ needs are concerned, on a year-by-year basis, while helping to rewrite them each year to reflect new visions and the benefit of new experience.
The Court Service is now engaged in preparing an equivalent Information Strategy, for which it has again promised to engage in a genuine consultation process with the judiciary and other court users. Last October their library and information department was brought under the direction of their IT director, a move which reflects modern realities and which will make it very much easier to plan to meet future information needs, as Joyce Plotnikoff and Richard Woolfson recommended, in an integrated way. At the moment judges with CD-ROM drives are being supplied with regular updates on CD of the Supreme Court and County Court Practices (the White Book and the Green Book) the All England Reports and Archbold, and every judge on FELIX can access the summaries of very recent decisions produced by New Law Publishing. I am sure that we will be moving towards a future in which greater reliance is placed on on-line legal database services than CD-ROM technology.
Because we are planning in three different timeframes at once, we have not lost sight of the vision of the paperless court with which I began this article. For the time being, one step at a time is enough for us. The first stage will be to establish back-office case-tracking systems which procedural judges will be able to access from computers in their rooms or chambers. Then we will move on to judicial case management support systems, which will enable judges to obtain the information they need for effective judicial case-management by IT rather than manual means. Over the horizon are document management systems, by which the papers in a heavy case or a heavy appeal will be supplied on disk or CD-ROM, and judges will be able, by use of hypertext links and appropriate search facilities, to find their way round the papers, and the relevant cases and statutes, far more quickly than they can do now. And then we will be moving to a world where sophisticated court users will be filing their pleadings and affidavits and skeleton arguments on-line, and court staff will be scanning those documents, when produced by other court users, into the court system, so that they will be instantaneously accessible to every judge or member of the court staff who needs to have access to the court file. Eventually, we may move to a world where no document at all arrives at court in hard copy, but that world is still some way down the track and I am not sure if I will live to see it.
ISDN and Video-conferencing
In this article I have concentrated on basics. We are bound to see the development of video-conferencing and telephone conferencing from courts or chambers or judges’ rooms as these technologies become cheaper and easier to use. In a world where the lay user of the courts is becoming more and more dismayed at the delays and costs involved in court proceedings, it is absurd to bring lawyers and their clients long distances, or to have to wait while everybody involved in a case can be all together in one place, if certain types of court business can be achieved more efficiently at long distance.
There have been two developments in very recent years which have transformed major parts of the scene, although I do not believe their full effect has yet been appreciated by most judges, lawyers and court administrators. The first is a result of technical advances in microelectronics and the availability of high speed, high bandwidth ISDN lines. In these lines the transmitted signal is digital, and there is therefore no need for a modem. Transmission speeds of up to 128,000 bits (about 2,500 words of written text) per second can now be achieved, and BT has recently made a significant reduction in the cost of installing and leasing these lines, which play a major part in the Court Service’s telecommunications strategy. I understand that the achievement of these speeds should be regarded as merely the first step in the development of broadband technology, and much faster speeds are to be expected in the foreseeable future. A metaphor in common use likens the present situation to delivering mains water through a drinking straw: in the very near future mains pipes will be commonly available. Once ISDN lines are in common use, and once these much faster speeds are attainable, they will revolutionise the communication of information, whether in text or video form, between places which are not linked by a Local Area Network (in which no recourse to telephone lines is needed at all).
The huge implications of this change can be illustrated by reference to video-conferencing. In the past the cost and inflexibility of this technology have proved a bar to its development for court use. A study conducted in the State of Victoria in 1990, for instance, concluded that although it was suitable for use in certain types of court proceedings, the savings and quantifiable benefits were insufficient to justify the costs involved. This was because specialised equipment was needed in those days to digitise the information coming from the camera, and the necessary bandwidth was not available.
With a single ISDN line it is now possible to set up a video-conference between two PCs equipped with a suitable ISDN Terminal Adapter, a video card and a small computer-top digital camera: the cost of the extra equipment needed for each PC is now only about £400, and this equipment can also be used for Internet-based video-conferencing and application sharing. With three ISDN lines, multi-party video-conferencing becomes possible. Because the facility is PC-based, it can be integrated with other applications, and shared documents, viewing and editing can be supported within a Windows environment. This very recent development (when coupled with the much faster speeds to which I have just referred) will greatly increase the convenience and reduce the cost of video-conferencing once ISDN lines are more commonly available.
It will make it very much easier, for instance, for masters and district judges to conduct chambers appointments without the parties’ representatives having to leave their offices. It will also make it possible for medical experts to give their evidence at trials from remote locations. Judge Tony Cotter, the chief administrative judge of the US Nuclear Regulatory Commission, told me last May that he expects to conduct an 18-month inquiry into the licensing of a nuclear waste dump in the Nevada desert entirely from his own courtroom in Maryland, with evidence being given by videolink from every state in the Union. He also told us of his belief that digital video-recording, which is not so labour intensive, may well be the courtroom reporting technology of the future.6
Cultural Resistance
At present there is a colossal amount of cultural resistance to change in the solicitors’ profession, but when solicitors start to learn that they will not get their costs allowed, even on a solicitor and own client basis, if they go on using old-fashioned, expensive, ways of conducting court business, perhaps that resistance may start to melt away.
Courtroom of the Future
In England the Court Service, with EDS’s help, is planning to develop a ‘Courtroom of the Future’ in which they can try out different types of courtroom technology in carefully monitored projects.7 The LiveNote system of court reporting, where the judge and the parties have a running record of the evidence available to them within seconds of it being given, has already proved itself, and it is in increasing use in major inquiries, and in major civil litigation and criminal trials. In the recent Maxwell trial, which was conducted in a very wide modern courtroom, press and public also had access to two monitor screens, one of which showed the witness’s face when it was not being used to display a document being shown to the witness, and the other was being used to show the LiveNote transcript. Now that e-mail is much more popular, it is possible to use it to receive witnesses’ proofs of evidence and parties’ written representations in public inquiries, as well as making the inquiry transcripts available for all the world to read.
Bringing Court Users into the Court Network
A lot of work has been done on this in other jurisdictions in developing common standards and protocols for the exchange of information electronically, and I know that the two long-term planning groups which I have mentioned will be addressing these issues. Ideally the Court Service and judicial Intranet (and all the different closed conferences which it would contain) will become the inner circle of three concentric circles.
The middle circle would include not only members of the other agencies who do business with the courts – police, probation, prison, the Crown Prosecution Service, justices’ clerks and the magistracy and so on – but also 10,000 barristers, 60,000 solicitors (and their 200,000 supporting staff), and a whole mass of people and organisations who need to do business with the courts and to have the opportunity to do so by a convenient electronic means. Appropriate controls would have to be devised to enable them to pass information to those within the Intranet, or to obtain information from within the Intranet, on payment of a charge, where appropriate, to be extracted and receipted electronically.
Recently I attended a presentation at which interested members of the senior judiciary and the Court Service heard from the chief executive of the new Police Information Technology Organisation (PITO) and her senior staff how their thinking is going along parallel lines. The courts should be able to access the Police’s National Computer System directly for up-to-date information about the criminal convictions of offenders, and similarly the courts should be able to input details of any new convictions on the day the offender is sentenced (or when a conviction or sentence is varied on appeal).
Most lawyers would like access to a secure electronic mail service and, unless an integrated approach is adopted, such services will just grow up haphazardly. The user will then have to move from one communications system to another for different purposes. This would be awkward and unnecessarily time-consuming. Standards will of course have to be created, and a system of certification devised to ensure the accuracy, authority, and integrity of the information which is being supplied. The cost of creating the networks could be recouped from the charges levied for their use.
The third circle would embrace members of the general public, to whom legal information (for example, in the form of systems containing legal guidance that are available through information kiosks) will be much more accessible once these new means of communication are available. Here there will not normally be the same need for security controls, since the information will be available for all who wish to have access to it, although there is no reason in principle why charges should not be made for some types of information, since costs will be incurred in providing it. The Court Service is already engaged in discussions with some local authorities about pilot kiosk projects, and the demand for these services is bound to grow. What is already being posted on the Court Service website in terms of the reproduction of simple leaflets for users of county courts bodes very promisingly for the future, particularly when more and more of us will be able to access the Internet from our digital television sets at home. The philosophy behind the Government’s 1996 consultation paper on the dissemination of public information electronically (which did not explicitly mention the provision of legal information) gives strong support to the development of this extra dimension.
The provision of such networks would create a formidable regulatory challenge. Standards would have to be created, and a system of certification devised to ensure the accuracy, authority, and integrity of the information which was being supplied. As I have indicated, the cost of creating the networks could be recouped from the charges levied for their use. In the United States judges and judicial associations, court administrators, bar associations, attorneys, corporations and other professional associations have formed the JEDDI Foundation (www.jeddi.org), a non-profit co-operative venture whose goal is ‘to bring to the American legal community and the public the benefits, including reduced costs and increased efficiency, of computers and electronic exchange of documents.’ Its mission is to ‘bring together all these disparate elements of the legal profession, the public and vendors to help create the foundations so that official standard setting bodies can do their job’. A similar initiative would not come amiss in this country, and ITAC might be the appropriate body to inspire its creation and assist its progress. I am bound to say that I have been rather disappointed by the absence of any very obvious strategic vision in these matters within the governing bodies of the Bar and the Law Society, and the time may have come for those leading sets of chambers and solicitors’ firms who are impatient about the slowness of progress in this country to date to study what the law firms are doing in the United States and Singapore in conjunction with the judiciary and court administrators so as to move things forward in a collaborative way.
Conclusion
I will end where I began. In England and Wales we are now a long way behind other comparable jurisdictions in the use we are making of IT in the courts. Catching up will not be at all easy, but because we have been slow starters we are, unusually, able to learn from the mistakes of others as well as from our own mistakes. I believe that since last October, with a very impressive amount of help from the Court Service and LCD, we have put in place a form of integrated planning machinery which bodes very well for everyone who is impatient to see greater use made of IT in our justice system. The future looks much brighter than it did a year ago, and I intend SCL, as it has been ever since Lord Justice Scarman became its first president in 1973, to remain in the vanguard of those promoting the pace of change.
Endnotes
1.‚The full text of this speech is in the ‘Speeches by Senior Judge section in the LCD website at www.gtnet.gov.uk/lcd/lcdhome.htm.
2.‚The Judges’ Council is a non-statutory body of Supreme Court judges, chaired by the Lord Chief Justice, which meets two or three times each legal term to discuss matters of interest to the working judiciary. IT matters regularly feature on its agenda.
3.‚See www.parliament.the.stationery.office.co.uk/pa/ld199697/ldjudgmt/ldjudgrr.htm.
4.‚See www.open.gov.uk/courts/court/cs/home.htm.
5.‚See www.smithbernal.com/casebase/frame.htm.
6.‚Those who are interested in the use of the Internet to promote the modernisation of the judicial system in the United States might be interested in visiting the website of the Judges’ Leadership Development Council, in whose work Judge Cotter is involved, at www.primenet.com/*jldc
7.‚For a comparable project in the United States, visit the ‘Courtroom of the Future’ site at www.courtroom21.net
