NASJE: National Association of State Judicial Educators
 
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Futures Watch: Emerging Trends for Courts
Presented by the NASJE Futures Advisory Committee
Welcome to the new “Futures Watch: Emerging Trends for Courts” webpage produced by the Futures Advisory Committee. This webpage is intended to provide the members of NASJE timely, interactive articles and resources on topics identified through various research, publications and environmental scans. Each quarter, we will highlight a new trend that has already begun to, or soon will be, impacting the nations’ courts and judicial branch education. This inaugural edition focuses on ‘Judicial Independence:

A Technologically Gifted Court

As judicial educators, it’s important to know about the technological innovations that impact how court staff and judges interact with the public now, and how they will interact with the public in the future. One of the most important aspects of a successful public court system is access to justice. Improving access benefits us all because it ensures that people won’t seek to administer justice themselves. Whenever we talk about technology, it brings the future to mind. However, the view of the courts shared in this article is happening today. If these innovations haven’t impacted your courts yet, they will. And that means you may be asked to assist the courts in providing training about the use of the technology. This article examines technological advances including E-filing, managing complex information, court standardization, judicial decision support systems, court management software and accountability, courthouse design, document management systems, electronic discovery and access to justice and self-represented litigants.

E-Filing
According to the National Center for State Courts, 26 states have adopted court rules enabling e-filing statewide or in at least one court. Most states started with a pilot project and then expanded to statewide e-filing. By the end of 2007, it is anticipated that all federal trial and several appellate courts will offer e-filing. The Federal Courts experience is that implementation process typically takes about ten months.  Ninety-eight percent of the federal courts: 92 district courts, 93 bankruptcy courts, the Court of International Trade, the Court of Federal Claims, the Court of Appeals for the 8th Circuit, and the Bankruptcy Appellate Panel for the 10th Circuit currently use the Court Management/Electronic Court Filing system (CM/ECF). Almost 27 million cases are on CM/ECF systems, and more than 250,000 attorneys and others have filed documents over the Internet. Most of the courts that have implemented or are in the process of implementing CM/ECF have made the electronic record the official record of the court and expect filings to be made electronically unless good cause is shown. “Another positive aspect of e-filing is that the systems have servers in multiple locations to avoid the problems created by the destruction of courthouses such as happened in Louisiana and Mississippi in the aftermath of Hurricane Katrina,” says NCSC’s Principal Court Management Consultant Jim McMillan. He also noted that if the court uses electronic filing in conjunction with tablet personal computers and software such as OneNote, judges can review the documents without printing them out. The program also enables judicial users to create tabs for more complex trial matters. http://www.ncsconline.org/WC/Publications/Trends/2007/ELFileTrends2007.pdf

Managing Complex Information
To assist in managing complex information, some attorneys and courts are experimenting with programs such as MindManager. http://www.mindjet.com/us. It has the potential of helping the attorneys and therefore the courts in organizing complex information to aid understanding. This particular product was designed for use in business, but its application can be quite broad. As McMillan states, “it’s a cool program that lets you link disparate information in a graphical map. In simple terms, it helps in organizing thinking.”

Similarly, in blogs such as Groklaw, members of the public have taken it upon themselves to organize complex legal information in a series of lawsuits about technology-related litigation. http://groklaw.net. McMillan reports that “techie nerds following the lawsuits about the Linux community have been creating grids of initial pleadings, responses, and other documents showing what’s in dispute and what’s not. With some fairly unsophisticated software, all legal pleadings could be filed in a manner that would automatically create these spreadsheets to automatically show the issues that require resolution.”

Court Standardization
As courts struggle with managing and archiving documents, and with ensuring that software can be integrated, standardization is extremely important. Robin Gibson, court automation fiscal and planning manager, for the Missouri Office of State Court Administration, writes that "[e]very day courts strive to find better, faster, cheaper, and more efficient solutions to share information. Different technologies have been tried, but the most promising technology today is eXtensible Markup Language (XML). It has sufficient implementations and standardized functionality to be a truly viable solution for courts and will expand rapidly in the future.” http://www.ncsconline.org/WC/Publications/Trends/2006/GJXMLTrends2006.pdf.  McMillan notes that the newest version of Microsoft Word is XML-capable, although it certainly has its detractors. http://www.oreillynet.com/xml/blog/2005/03/holes_in_microsoft_office_xml.html

One of the real problems of courts is preserving records. As more and more courts move to digital record-keeping, there needs to be a standard to ensure that future hardware and software will be able to view those digital files. Just as microfiche was used to replace paper copies, digital copies have replaced microfiche in many places. The U.S. National Archives & Records Administration (NARA) is planning to archive potentially billions of electronic government documents "so that anyone, anywhere, anytime, far into the future, can access these records with the technology in use then," said outgoing NARA director John W. Carlin.  In addition to assisting government archiving, he predicts the new products and processes will benefit other archivists — including colleges and universities, libraries and archives, small businesses and large corporations. http://blog.lib.uiowa.edu/scholar/2004/07/26/national-electronic-records-archive-project-underway. And courts. McMillan notes that NARA has endorsed XML as the standard. “What’s nice about XML is it’s basically a text file. There are no encrypted headers and no special formatting that can’t be decoded easily. It’s perfect for an open document standard,” states Tony Scronce, information technology specialist for the National Judicial College. Also involved in standards development is the National Institute of Standards and Technology (NIST). http://www.nist.gov.

McMillan applauds the work of two states for their technology integration efforts. He cited Pennsylvania’s JNET (for Justice Network) (see http://www.pajnet.state.pa.us/pajnet/site/default.asp) which, according to its website, is a secure virtual system for allowing authorized users to access information “that historically took days or weeks to obtain through legacy, paper-driven, and sometimes manual-based business processes.” Similarly, he noted that Minnesota is currently implementing the Minnesota Court Information System (MNCIS), which also will be very helpful when completed for allowing law enforcement, courts, and other state agencies to access necessary information for good decision-making. http://www.courts.state.mn.us/?page=1650. Both systems ensure that there are standards for all documents including warrants, charge tracking, protection orders, traffic citations, etc. Use of a standard language allows the information to be transferred across different formats with ease.

Judicial Decision Support Systems
Many courts have experimented with technology to assist in the decision-making process, primarily in the area of sentencing. Not all judicial decisions are the application of simple algebra. For example, if fact A is present, and fact B, then the result should be C. Many software companies have attempted to draft such software.  Cyrus Tata, co-director of the Centre for Sentencing Research at Strathclyde University in Scotland, asserted that creating these systems is ambitious. ”Far from being a simple technical task, the fundamental challenges lie in developing a system which judges recognize as both useful and producing neutral data. This cannot be achieved by resorting to attempts to replicate legal judgment through the medium of algebra and mathematics processes. Research into the everyday practice of judgment-processes is more likely to provide the indispensable basis of system, which judges feel is relatively natural to them.” http://www.ncsconline.org/D_Tech/ctc/showarticle.asp?id=21. Judge Michael Marcus suggests that modern decision support technology holds great promise for improving crime reduction. “All involved should be able to run queries to determine how offenders who are like the subject have fared after being sentenced to any of the sanctions (custodial and otherwise) available for that offender, with success measured by various standards - but all keyed to reduced criminal behavior. And advocates should be expected to bring research to the task of sentencing." http://ourworld.compuserve.com/homepages/SMMarcus/whatwrks.html. Evolving courts need to be able to show effectiveness rates, just as the drug court movement has been required to showcase empirically the recidivism rates of offenders in those programs. If problem-solving models are going to work, the technology will need to keep pace to capture the data necessary for tracking effectiveness.

Pennsylvania, Virginia and Washington, DC, are all currently using Sentencing Guidelines Software Web (SGS Web) that was developed by Cross Current Corporation. http://www.crosscurrent.com/index.php?id=28,0,0,1,0,0. According to its website, "SGS Web automates the process mandated to the State Sentencing Commission to maintain a "consistent and rational statewide sentencing policy" for more uniform sentencing practices, leading to greater equity and fairness." The software automates the rules that provide judges with a common benchmark for sentencing. The software checks the sentence for conformity to the guidelines, and it requires reasons for times in which the judges wish to depart from the guidelines.

Many courts and judges have experimented with simple software to assist them in making good decisions. This innovation will continue into the future. Assuming supreme court involvement in the process, the question is what the appellate courts will do with trial court decisions that don’t properly justify departure from the software’s suggested resolution.

Court Management Software and Accountability
Case management was the buzz phrase of the 70s, 80s and 90s with tremendous work being done to ensure efficiencies in court systems. With relatively simple technology, court employees’ work habits can be tracked. McMillan tells of his experience in Bosnia with a simple case management system. “We know when a judge has something due and when he or she is done with a case. If the judges haven’t done their jobs, we can easily track that. When there is a history of corruption, unfortunately more oversight is required. While it may seem somewhat Draconian, the software does help to curb bad behaviors.” For example, he noted that one clerk would sign in at 9:30 a.m., leave at 11:00 a.m., and come back at 1:30 to 3:00 p.m. During that 1:30 to 3:00 p.m. time period, the clerk “hammered in a whole bunch of documents.” The software was more valuable than a television camera would have been in documenting work progress. If this court were to request additional personnel because it’s being overrun by documents, that request could easily be denied with this evidence of work habits. In positive terms, McMillan noted that the system would showcase whether a clerk in another jurisdiction needs work providing load balancing and work sharing between jurisdictions in a centralized system.

To assist in ensuring that lawyers and litigants time is not wasted, many courts are utilizing time certain scheduling. The court provides approximate times for the parties to be called. Parties are more likely to be available if they are given times certain. Some courts are experimenting with online phone and online check-in much like airlines use according to McMillan. Another benefit of time cuing is that the courthouse requires fewer parking spaces because not everyone is showing up at the same time. With shrinking court budgets and where parking spaces can cost between $8,500/space and much higher depending upon the jurisdiction, this can result in significant savings.

One of the leading case management companies according to McMillan is Tyler Technologies. http://www.tylerworks.com. According to its website, it offers a web-based case management program that manages all case types, including civil, criminal, juvenile, probate, family, domestic violence and mental health cases, along with electronic document management for all court documents filed in these cases. The software also manages judicial assignment and scheduling. Just as importantly, the company interfaces with other state and local systems to ensure an integrated system.

Courthouse Design
McMillan reports that the court in Ramsey County, Minnesota has an excellent courthouse design. http://www.mncourts.gov/district/2. The court utilizes visible cuing, initial appearance and arraignment courts, and parties can pay fines online. McMillan envisions the following scenario if some form of real ID comes to pass:

As the litigant enters the courthouse, a threat analysis using facial recognition software is conducted. “Ms. Jones, welcome to XYZ court. We see that you’re here for a civil action. We anticipate that the mediation session will be at 9:37, so please join us in the concierge lounge. Then proceed to the mediation center. Mr. Webster, we see that you have three warrants out standing, so please join Officer Smith. Mr. Thompson, I see that you are here for a domestic relations matter (read domestic violence). Please proceed to the relaxation lounge until your hearing at 10:30 a.m.

This type of court would reduce stress levels. In courthouse designs, savvy architects are aware of the way in which courts have changed doing business. They recognize the importance of installing geographically dispersed victim and witness waiting areas. They provide for video monitoring where necessary. They are aware of the use of mediation and problem solving principles, including mental health and drug courts. Consequently, new courthouses have more and more conference rooms for mediations, settlement hearings and other dispute resolution techniques. Some are built with mediation centers. Media lounges are created with access to computers, video and audio feeds, and the cameras in the courtroom are broadcast-quality.

Document Management Systems for Sharing Case Information
Many courts are exploring the use of password-protected portals for storing case information. For example Ringtail Solutions allows lawyers from across the country to review documents at one password-protected site. http://www.ringtailsolutions.com. This is especially important in complex litigation matters. This type of collaborative site can also reduce the number of discovery disputes because the service also helps in organizing information.

Electronic Discovery
Many courts are facing requests for injunctions or temporary restraining orders to either compel or restrict access to companies’ electronic files. Electronic documents contain metadata, which provide information about the creator of the document, the document’s creation date, any modifications to the document, and other forensic evidence. At the 10th Annual Court Technology Conference (CTC) in Tampa on October 2-4, 2007, a new area of concern was the ability to fool the forensics software. There were additional sessions addressing encrypting information, which basically looks at who gets to see what when. What will be protected information and what will be considered discoverable? This question is currently being litigated, and these types of suits will only increase in the future.

Another problem is the accidental, negligent and intentional release of private data. These types of suits have hit the courts and will continue at a greater pace in the future. Identity theft has become a major criminal enterprise, and courts don’t want to be part of the problem by releasing information such as dates of birth, social security numbers, and other private information that can assist in those thefts. According to McMillan, one product that shows promise is Intellidact. http://www.csisoft.com/applications/intellidact.php. Its technology automatically locates unstructured data, indexes it and redacts specified data without human intervention. This can help courts in their efforts to provide public access to court records without infringing upon privacy rights.

Access to Justice and Self-Represented Litigants
One of the most exciting technology products to assist self-represented litigants in accessing the courts is the Access To Justice Author (A2J Author) Software. http://www.kentlaw.edu/cajt/A2JAuthor.html. A2J Author software was developed by the Chicago-Kent College of Law. A2J is supported by grants from the Chicago-Kent College of Law, State Justice Institute, Center for Access to the Courts through Technology, Center for Computer-Assisted Legal Instruction (CALI), and Legal Services Corporation (LSC). Because of this funding, the software is free to courts. The software uses a question and answer format. The self-represented litigant accesses the website and enters the type of claim that he or she wishes to make. The litigant is represented by an icon that is walking a path toward the courthouse. As the litigant answers additional questions, the icon moves closer to the courthouse. With the answers to those questions, legal forms are being populated with the necessary information. Judges are often horrified to find out that litigants have paid sometimes substantial amounts of money for improper forms. This product negates that problem. To date, California, Idaho and Illinois have built programs to assist pro se litigants. Other websites worth visiting are the National Center for State Courts site at http://www.selfhelpsupport.org. It is a website designed to help courts and legal service providers deal with increasing numbers of self-represented litigants. It received the State Justice Institute's 2005 Howell Heflin Award, which is presented annually to an SJI-supported project that has the potential to significantly improve the administration of justice in state courts nationwide. California also has an excellent site as well at http://www.courtinfo.ca.gov/selfhelp.

Summary
The technological innovations described in this article are only the beginning. As Albert Einstein lamented, “It has become appallingly obvious that our technology has exceeded our humanity.” It is imperative that technology is used to assist rather than to hinder. It should make us more human, not less. Judicial educators have the unique role of educating judges and court staff on how to use technology to help people live better lives.

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William Brunson is the director of special projects at The National Judicial College. He wishes to thank Jim McMillan of the National Center for State Courts for his assistance in the drafting of this article.

Judicial Independence: The Challenges of the Changing Landscape

Why is “Judicial Independence” the topic of this “Emerging Trends” page? Simply put, challenges and changes abound. Challenges to judicial independence consistently ranked as one of the top impact and priority areas for courts in a 2005 cross-organizational NCSC Court Constituent Survey. The most recent Future Trends in State Courts 2005 cites challenges to judicial independence and potential changes that would politicize judicial selection as “watch areas” with particular relevance to the courts and how they function in upcoming years.  Judicial independence, and the need for effective responses to varied erosive threats to it, ranked as the highest priority issue in a Futures Advisory Committee survey of NASJE members last year. That ranking was replicated in a Futuring Strategy Session at NASJE’s 2005 annual conference.

Judicial independence is certainly not a new idea, however. A cornerstone at the very foundation of our government’s structure, it is not a static concept or an uncomplicated one. The concept continues to evolve and requires new information and resources from widely divergent perspectives:

Concern over judicial independence is particularly notable in the two-thirds of U.S. states where judges are elected at the trial court and/or appellate levels. For decades, the Judicial Codes of Conduct have firmly established the need for judges to comport themselves differently from other elected office-holders – including on the campaign trail to preserve fair and impartial courts. The White decision in 2002, and several subsequent court decisions, struck down long-standing sections of those codes that set parameters for constraints on speech in judicial campaigns. As a result, judicial elections have become increasingly susceptible to all the same influences and perceptions of bias found in partisan politics, such as third-party and special-interest group involvement and high-dollar campaign contributions.

Judicial candidates who have nonetheless attempted to maintain “a higher ground standard” in their campaigns have been undercut in several successful lawsuits.  In the chasm created, judicial candidates struggle with ethical questions on what to say and what not, such as whether to answer candidate questionnaires, and at what costs. In response, judicial campaign oversight committees, the use of voluntary codes of conduct or voluntary candidate affirmations regarding campaign conduct are all increasing.

In addition to the threats to judicial independence from attempts to politicize the courts, “court-stripping” efforts are also on the increase. Court-stripping attempts to restrict judges from hearing certain types of cases thereby preventing courts from exercising their role in our constitutional system of government. In sum, court stripping threatens the independence necessary to ensure the U.S.’s celebrated system of “checks and balances.” At the federal level, recent examples include the Pledge Protection Act and the Detainee Treatment Act of 2005. But there also is an upswing in state ballot initiatives and legislative referendums aimed at limiting court jurisdiction over certain cases or judicial terms. These range from setting shorter term limits for both current and prospective judges (Colorado), to essentially eradicating judicial immunity and creating a fourth-branch of the government - a special citizen-based grand jury - vested with the power to remove judges from the bench for any unpopular and contested decision deemed valid upon review by a special grand jury (South Dakota). Unfortunately, these are no longer isolated or unique examples.

While attempts to limit courts proliferate, problem-solving court approaches are becoming more mainstream and the judicial role broadened. The traditional role of the judiciary is being expanded to assume more leadership and visibility in local communities. Judges’ expanding role includes outreach to and education of the public, the media and other stakeholders on the role of judges and courts, the reasons for and constraints upon their decision-making, and strengthening public trust and confidence in the courts in the process. In an interesting intersection, judges at the highest levels in our nation’s courts are also entering the public education arena. They have hit the lecture circuit, are penning articles, and passing formal resolutions in defense of the courts, judicial independence, and why judicial elections are, and should be, different. National and state organizations specifically dedicated to defending and preserving judicial independence are springing up. New resource kits and research on “winning the debate for fair and impartial courts" are available.

Internationally, a growing community of nations have, or are seeking to, establish court systems modeled on the American system of fair and impartial courts and the U.S. concepts of the rule of law, judicial independence and accountability. Yet, at the same time, debate continues domestically on whether U.S. courts should cite foreign legal precedent in U.S. case determinations and assume a global leadership role.

What follows is a sampling of available resources related to judicial independence in the various and complex forms illustrated above. The list is intended to assist you in preparing educational programs that reflect and address the changing cultural climate and public perceptions surrounding judicial independence. The list is not intended to be all-inclusive or supersede other resources, such as JERITT. We invite your comments and suggestions.

Additional Judicial Independence Resources (DOC)