Before entering the courtroom, a lawyer relies on court technology to electronically file and serve documents and obtain court records. Once in the courtroom, lawyers, judges and court staff rely on court technology when attending and participating in trials such as hearings, trials, conferences and other events that are increasingly held remotely. The lawyer must also use the court’s infrastructure – such as storing and transmitting documents – to use material and other materials during the trial.
I recently moderated the Bar Association, which consists of state court judges, on how to make the best use of existing technology in state lawsuits. There were several key considerations that were discussed by the group that deserve further study.
Does the court have compatible systems for electronic filing and record keeping?
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Electronic filing of an application, while convenient, creates an element of uncertainty until a lawyer can identify the filing as accepted in court, uncertainty complicated by the risk of a technical problem with representation. The lawyer should be able to promptly determine from the court whether the court has processed the electronic submission, or if not, he should be able to re-apply if necessary. Any delay in making this decision creates the risk that the lawyer will miss the application deadline.
Judges should also be able to have direct access to all documents submitted electronically. In the absence of such access, judges run the risk of not noticing a key document or evidence provided by counsel.
As a result, courts should use a comprehensive system that combines the convenience of electronic filing with real-time access to court materials. The court should use a unified case management system and electronic filing; or, if not available, courts should integrate their existing electronic filing systems and court documents. Otherwise, there is a risk of error, and the attorney may select a paper file (if not required) to minimize possible filing problems.
Can a lawyer submit materials in any format digitally?
Forensic electronic filing systems typically require counsel to use PDF format to file materials electronically and to limit file sizes. However, PDF format is not always available for digital evidence due to the size or format of the material. For example, electronic filing systems often do not accept photos, emails, text messages, or audio or video recordings in their original format.
The lawyer must determine in advance the best way and time to submit the materials electronically to ensure proper trial. This requires the attorney to find out if they can file with a flash drive, CD, shared cloud drive, or otherwise. The lawyer must also determine whether the court has compatible software or applications to access the materials using the lawyer’s preferred file format and, if necessary, to copy and edit the materials. In turn, courts must have the latest software and programs to review, access, and use electronic materials.
Even if the document is submitted electronically, is it available according to the lawyer’s plan?
The lawyer must understand in advance what happens to the documents and other materials after filing them in court. For example, a lawyer needs to understand the court’s ability as to whether documents retain color characteristics after electronic filing and whether the court can print any or all color copies. If a lawyer sends large documents or several related documents electronically, the lawyer must understand how the documents are a court (for example, links to relevant documents and page numbers).
A lawyer is often unable to view documents using the court’s electronic system and see what their materials will look like for judges and court staff. To minimize these concerns, counsel may need to provide courteous copies of submitted materials where color is relevant, and independently note page numbers of exhibits and other related materials to ensure that documentation is complete and available for consideration as intended.
Do the existing premises in the court building limit the lawyer’s speech in the courtroom?
The lawyer must inspect the courtroom in advance to determine the available equipment and technological capabilities. This is especially important before a trial, where a lawyer often has to use evidence and other materials to convince a judge or jury. Even if courts adapt to the use of electronic methods, their physical means may lag behind. Courtrooms do not always have enough existing equipment or capabilities, such as wide or nearby electrical outlets, display monitors, computer cables, or wireless Internet access. The construction or location of some courtrooms may interfere with a cell phone signal to communicate with others or access the Internet.
As a result, the lawyer must understand whether and how to eliminate any shortcomings, and develop a backup plan. For example, a lawyer must bring the necessary equipment, such as network extensions, cables, or a mobile access point. The lawyer should also consider using traditional means of presenting evidence, such as a board or using large paper versions of items, especially if Internet access is unavailable or unreliable or there are no monitors in the courtroom.
Can a court conduct complex litigation remotely?
Many courts have adapted to the pandemic, using videoconferencing to conduct all or part of the remote trial. Although the court may use the platform for video conferencing, it is necessary to rely on the existing court infrastructure, which can cause problems if the court does not upgrade this infrastructure.
The lawyer must determine in advance whether the technology of the court puts them at a disadvantage in the case of a complex remote trial, such as a trial. For example, a court video conferencing platform may need to accommodate multiple participants (e.g., parties and witnesses), showcase complex exhibits (e.g., high-resolution documents, videos, or simulations), and provide or synchronize tools to record the process. It may also require the court, as the host, to have sufficient capacity for the trial and to place in the courtroom a sufficient number of cameras and sound equipment so as not to put remote participants at a disadvantage. Otherwise, the lawyer may need to personally conduct any complex process.
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