Home | Resolution | Report

I. The Problem:

The free availability and delivery of information through the Internet has multiplied exponentially over the past several years. In areas ranging from education to commerce to entertainment, the electronic provision of information through [his new medium has radically altered previously-accepted paradigms in the way individuals and entities transact their affairs. Businesses as diverse as bed-and-breakfasts and automobile manufacturers have discovered the immediacy and cost-effectiveness of putting product information on the World Wide Web ("Web") for customers to peruse. Major corporations such as Westinghouse and Dell Computer now allow their customers to directly input orders through the Internet to speed delivery and reduce errors in re-keying information. Customers of FedEx and UPS directly track their package deliveries over the Internet without the need for any staff involvement Schools use the Internet to augment lesson plans, to assist students with homework and as a research resource.

However, compared with these areas of life, the use of the Internet to provide information necessary to the practice of law and the administration of the justice system has lagged far behind. To be sure, there has been astonishing growth in the willingness of state and federal agencies to develop Internet presences. A quick look at Villanova's State and Federal Resource Locators (http://www.law. vill.edu/) reveals that the judiciaries in 47 states have an online presence of some kind, and that legislative and administrative agencies are moving to the Internet with great success and enthusiasm.

Unfortunately. as much as has been done, it is still too little. And it is taking much too long, Furthermore, the utility of the information that is available is extremely low. A disappointing number of the governmental Internet presences (especially those of the courts) are little more than online brochures: names, phone numbers, occasionally a map to the courthouse, and a civics-lesson essay on the history of the judiciary. Even the states that publish court decisions online are not realizing the dramatic potential of the Internet.

In an age where individuals and entities are increasingly conducting business in an electronic environment, and utilizing the unique information-retrieval capabilities of this environment, the legal system generally is still enmeshed in the paper era, using procedures and systems which, with few exceptions, are unchanged from the last century. It is thus no surprise that the existing governmental Internet presences, indeed like the ABA's own such effort, reflect this paradigm.

There are a number of reasons for the discrepancy between personal and business utilization of the Internet on the one hand, and governmental use on the other. Implementing a dramatically new technology in a governmental setting require a great deal of coordination, vision, hard work, and time. However, the most serious reason probably is a lack of understanding of the technology including the potential benefits of an integrated approach to the delivery of public information in electronic form, not only to users of the information (such as lawyers and the public) but also to the governmental entities involved.

II. The Solution

What are we talking about? For want of a better term, we call it Legal Data Interchange ("LDI"): the coherent, integrated provision and exchange of public information relating to the legal system, including but not limited to the judicial system, in a way that makes full use of the capabilities of the existing technology. We envision a day when a lawyer, sitting at her computer, can obtain all governmental information relating to a client's matter in electronic form and, consequently, process the matter without using paper with its attendant costs (and inefficiencies) of production, handling, distribution. Indexing, storage and retrieval.

Back To the Future: A Connected-Government Vision

Imagine what we are talking about. Imagine a scenario in which everyone in the office has a connected Web browser running every minute of the day (a scenario becoming commonplace in more and more offices every day). A lawyer wants to find out whether the opposition filed their answer before the yesterday-afternoon deadline. It's on the court docket, online, and it only requires a few seconds to get the answer. (Hit the docket bookmark, type in the case number, and the filings start scrolling down the screen.) The Internet effect:: virtually instant access to the information (saving the client legal fees), and no need for a court employee to answer a telephone or mail inquiry (saving the court system personnel and paper costs).

Of course this is possible. The information is already in a court computer somewhere. Technically, it's just not that hard to access this locally-stored data from the Internet. This is what "extranet" technology is all about. Just as FedEx and UPS let users check their databases to find out where their packages are and when they were delivered, extranets all over the Internet are being used to deliver operational data and status information to organizations' "clientele." When the courts and other governmental agencies plan for meeting the needs of their "users," this type of extranet concept can be the key to improving service and lowering costs.

Another lawyer has to appear on Friday to argue a motion. Instead of showing up at 9:00am with everyone else on the calendar and waiting to be heard (while her adversary may be tied up in a different county), the day before she fills in her available time on a scheduling program over the Internet. Her adversary does the same, the court's computer matches their mutually available time and emails both of them to appear at 11:30. The net effect: no multiple telephone calls between the lawyers and the court, no personnel and paper costs of rescheduling to an adjourned date, no packed courtroom of impatient lawyers, and two clients who saved several hundred dollars in attorney's fees for their lawyers' unproductive time waiting to be heard. The same procedure can be utilized to schedule trials, arguments in appellate matters, and any other appearances.

After scheduling the motion. the lawyer turns to other matters. Did the taxes get paid on that big condo project downtown? Was the mechanic's lien released? A quick check of the appropriate databases over the Internet quickly reveals the answer. Much of this information is already in electronic form, or can be easily scanned and digitized so that it can be accessible. Moreover, the costs associated with making it available to users over the Internet is infinitesimal compared with the existing costs of indexing, storage, retrieval and distribution.

Finally, the lawyer turns to the task of filing a new lawsuit for a different client. After finalizing the draft on her computer, the lawyer converts the document to the non-proprietary document format standard, attaches it to an email and sends it to the court. Once received by the court, after whatever review by a claerk the court deems appropriate, an automated program assigns the new case a docket number, confirms the filing by email, issues a credit card debit for the filing fee, adds the parties and case name to the appropriate electronic indices, and posts the document to the appropriate databases (including that of the judge who will be responsible for it). When the attorney for the defendant is advised by his client that he has been sued, the attorney quickly finds the complaint online, downloads it, and uses it to draft his answer, which is similarly filed electronically. When a third-party defendant is added six months later, the new attorney easily can obtain a complete copy of the file without ever using a copy machine or requiring a clerk to do so. The net effect: greatly reduced time and expense for all counsel (and, consequently, their clients) and the court.

The Possibilities

Of course, there are practical limits on what can be achieved economically through this process. Developing a system for a courthouse computer to do title searches would be problematic. There are still hardcopy records that aren't in the databases, and the amount of work that would be required to invent even a marginally-reliable title-tracking algorithm would be formidable. We are not talking about getting computers to do the hard work -- just what they are good at (simple data storage and retrieval). But think about how much easier some of lawyers' tasks would be if all the county vital records were online, to choose but one example. Of course, the records are online, inside the courthouse -- they are just not accessible to the bar.

Technically, all of what we have described is do-able with today's technologies, requiring no special breakthroughs or vendor-promised software that has yet to be developed. It does not require everyone to join hands with some vendor's everything-for-everyone, fancy new proprietary solution. There's no hidden-trick lynchpin that commits a purchaser to some vendor forever. These are mainstream open-standards third-party-supported technologies that can be implemented using products offered by multiple, competing vendors.

So, then, what's the problem? What's the hard part?

Logistics. Cooperation. And leadership.

None of this will happen unless the stakeholders in this industry get serious about it and start to make it happen. And frankly, with so many groups involved, and with such a dramatic change in the way of doing business at issue, there's no one group who could be expected to run the whole thing.

In the handful of states where this type of activity is being actively pursued (such as Utah and Florida), the efforts really didn't get under way until there was developed a coalition of stakeholders who shared a common vision of what they wanted to accomplish, and who marshaled the resources needed to get it done. In Utah's Electronic Law Project, for example, the coalition includes the Governor, the Chief Justice of the Supreme Court, the Attorney General, key heads of state agencies, leaders from the city and county level) the Utah State Bar, major law firms, high-tech corporations in the state, the Chamber of Commerce, and (especially) the leaders in the state legislature.

Funding? Of course it's an issue. But it's really not as difficult as many would first think. Obviously, there are some cost savings that can be achieved in this process. Not so obviously -- there are interested companies and organizations who are willing to step up to the funding plate to help make this happen. Frankly, if you've got a common vision among the stakeholders on a solution that will make a positive difference for everyone, funding can be found. Indeed, the bar -- either as individual law offices or as an organization -- has so much to gain from this type of effort that the bar should be working to make sure that funding is simply not a problem. And it's not that expensive. Utah's first-year budget is only $250,000 -- both in cash and in contributions (e.g., hardware, office space). And with so many participating, no one group is on the hook for more than $25,000.

And the advantages for the participants are substantial. For lawyers, for example, implementation of a system such as we have described throughout a jurisdiction would mean a dramatic reduction in the out-of-pocket costs of providing legal services, as well as in the time necessary to complete matters. By completing matters more efficiently at lower cost, legal services can be made more available to persons of moderate means and with greater client satisfaction and less attorney frustration.

For the governmental entities involved, it means effectively eliminating the cost of distribution of public information. Millions of dollars of costs for paper, paper handling, postage, storage space, and personnel costs for these processes as well as public inquiries and the recapture of costs by fees, can be saved, more than offsetting the ongoing costs of providing electronic access once the conversion is made. Also, such a system would dramatically improve the ability of governmental agencies to share information in their roles as "consumers" (for example, by more easily coordinating traffic convictions with motor vehicle licensing records).

Moreover, there are important reasons for government entities to develop an LDI model using the Internet and non-proprietary technologies such as the Web and HTML (or its variants, SGML or XML). The technology is widely available among the bar and public -- people have the browsers and access to the Internet -- and there is no need for government to incur the costs of providing access or training to users.

For the public at large, the system we have described would result in greater ease of access to information at lower cost, and the availability of information which previously would be difficult (or even impossible) to obtain (e.g., discovering whether a business was the subject of a current law suit). Furthermore, by reducing the time and expense of handling legal matters, the current financial and other disincentives to use legal services would be reduced.

In short, LDI is a win-win-win situation, admittedly a rarity among public policy issues.

But what a project like this takes is leadership, commitment, and time. Someone needs to be the champion to make it happen. The stakeholders need to get on board. And it will take a long time. Networks and technical infrastructure need to be put in place, standards need to be selected and agreed upon, laws may need to be revised to support the new procedures (electronic filing, for example, likely requires a digital signature law from the legislature or needs to be set by rule from the Supreme Court), and of course, the entire process is a substantial organizational and logistical effort. It won't happen overnight.

III. The Role of the ABA

We believe that the ABA should be one of, if not the primary catalysts to bring LDI to fruition. As the national representative of the legal profession, the ABA is particularly well-suited to perform this role, as it can bring the collective knowledge and experience of the bar, one of the major (and certainly the most knowledgeable) stakeholders in these processes, to bear on the problems and solutions posed.

Moreover, given the ABA's goals of providing services to its members and improving the administration of justice (including making legal representation more available to those of limited means), as well as the immediate need to make an impact now, LDI should be among the highest current priorities of the organization.

What should the role of the ABA be? We believe that there are three major components of an effective ABA effort:

A. Policy Development

Although much of the information to be exchanged through LDI is jurisdiction-specific, and will vary from state to state, there is a need for standards, especially in the choice of formats used to exchange information. The ABA, with its strong technology experience, and the collective experience of its membership, can serve a vital role in this area.

The ABA has already taken some initial steps in this area. The Association has:

But there is more that needs to be done. Efforts to develop LDI programs are being undertaken by various courts as model projects without significant input from the bar. For example, the federal courts (and a number of federal and slate agencies) are developing programs to make opinions and other documents available in ".pdf" format, using proprietary publishing programs to convert the documents and to "read" them in a format that looks exactly like a printed page (and which makes little sense to those viewing the document on a computer screen). Other efforts are using different formats that offer more flexibility, are not proprietary, and can be utilized by many different software products.

Other jurisdictions are making information available electronically, but only through proprietary networks, not through the Internet. Obviously, if different proprietary formats or networks are adopted by different jurisdictions, attorneys and the public will have to incur the costs of acquiring access to all of the networks and software, thus reducing much of the economic benefit of LDI.

For these reasons, the ABA needs to promptly establish policy positions on these issues before the model projects get too far along. Using the experience of its members, especially among the Sections, and working through existing technology committees and the Technology Council organized under SCOTIS' supervision, the ABA can provide the collective view of what standards and processes make sense from the practitioner's (and the public's) perspective. Only by requiring that LDI programs use non-proprietary formats and forego proprietary networks can the full potential economies of this paradigm be realized.

B. Stimulate Leadership By State and Local Bar Associations

Given the jurisdiction-specific nature of the information to be provided, all of the work relating to state-based materials will, of necessity, be done at the state level. However, the ABA can have a significant role to play in encouraging and guiding such work.

One of the tasks best accomplished by the Association in a variety of contexts is its role as a clearinghouse and training facility for state and local bar association initiatives. As it has done most recently with the State Justice Initiative Project, the ABA can provide a similar role gathering materials and information from efforts in states, sharing them with bar leaders in other states and stimulating the development of similar efforts in those states. Examples such as the Utah Electronic Law Project (http://www.uelp.org) can be used as a starting point for other state bar associations to get things moving in their states, and much of the work from Utah and elsewhere can keep new. projects from having to reinvent the wheel.

Forums such as the Bar Leadership Conference, the National Conference of Bar Presidents meeting, and the Bar Leadership Training Program can and should be used to educate state and local bar leaders about the issues and what is happening in other jurisdictions. And, given the time-sensitive nature of this issue and the consequences of failing to act now, the sooner these programs are implemented, the better.

C. Be a Catalyst for Action at the Federal Level

At the same time, the ABA itself should serve as the catalyst at the Federal level, bringing the Federal judiciary, the executive branch regulatory agencies, Congress and the business community together to develop similar standards and processes for Federal information. Given the technological inclinations of both the White House and the Congressional leadership, this is probably the best time for the ABA to strongly advocate this win-win-win solution which will make government more accessible while reducing its cost. It should be a non-political issue with bipartisan support, and the ABA could reap valuable positive press from the effort as well.

Similarly, the ABA should promptly establish liaisons with the various national efforts in the area. Most notably the electronic filing project being undertaken under the auspices of the National Center for State Courts. If the bar is to have its appropriate input into these projects, action must be taken promptly.

When taken as a whole, LDI is a project that can do more to improve the professional lives of lawyers and the ability of citizens to afford legal services than just about anything else the ABA has on its vast plate. However, if we are to be effective, the ABA must act quickly and decisively, before the development of standards and processes gets too far along. We urge the House to support this initiative and take advantage of this unique opportunity.

Respectfully submitted,

Standing Committee on Technology and Information Systems

Armando Lasa-Ferrer, Chair
G. Burgess Allison
Jeffrey Aresty
Donald W. Bivens
Charles R. Coulter
Janet R. Davis
J.D. Fleming
Margaret H. Greene
Mark H. Hellman
Vedia Jones-Richardson
Michael L, Prigoff

May 7. 1998