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UNREFEREED PAPERS
The paper is an edited version of a report prepared for the Council of Chief Justices in late 1996 examining the use of electronic material in appeals cases. After a brief introduction setting out the history of the report, the paper is divided into a number of sections:
An executive summary;
• A section setting out the business needs of the court which the electronic appeal book initiative aims to address;
• A section giving a conceptual model of a possible future electronic appeal process. It describes what could be done given the capabilities of the technology and the general directions being taken in the use of IT and electronic material in courts;
• A section dealing with IT and other issues relating to the use of electronic material in appeals, discussing the implications and suggesting solutions;
• A discussion of strategies for moving from paper-based appeals to electronic appeals;
• A discussion of the need for uniform standards to enable electronic material to be processed by those involved in the court system regardless of the IT system or software involved;
• An examination of proposed testing of electronic appeal book systems and related electronic court processes;
• A discussion of short term measures designed to give the courts experience in handling electronic materials as well as gaining some of the benefits of the use of IT;
• A proposed research project;
• Recommendations.
This paper is an edited extract of a report provided to the Council of Chief Justices (CCJ) in late 1996. The paper examines issues surrounding the use of electronic material in appeal cases throughout all jurisdictions and includes strategies that would assist Appeal Courts in moving towards electronic appeals at some stage in the future.
The paper has been prepared by a Working Party comprising Mr Chris Doogan (Chief Executive and Principal Registrar, High Court of Australia), Mr Warwick Soden (Registrar, Federal Court of Australia), Mr Len Glare (Chief Executive Officer, Family Court of Australia), Mr John Holloway (Chief Executive Officer and Principal Registrar, Supreme Court of NSW), Ms Julie Baker (Registrar, Supreme Court of South Australia), Mr Gary Robinson (Supreme Court of Queensland). The Working Party was assisted by a IT Sub-Group comprising Mr Bruce Finlay (Assistant Director IT Policy and Planning, Federal Court of Australia), Mr Tony de la Fosse (Senior Deputy Marshal, High Court of Australia) Ms Allison Stanfield (Senior Deputy Registrar (Appeals) Court of Appeal Supreme Court of Queensland), Mr Ian Rohde (Manager Information Services, South Australian Courts Administration Authority) and Mr Bruce Howe (Deputy Registrar, NSW Court of Appeals).
At the meeting of the Council of Chief Justices held on 27 October 1995, it was agreed that work be undertaken on developing common rules for the production of appeals material in electronic form.
A Working Party was established in January 1996. A Preliminary Report was prepared and considered by the Council at its meeting in April 1996. That Report, adopted by the Council, set the Terms of Reference for this project and provided an action plan covering the current stage of the project. Included in that work was a survey of Courts to gather data relating to IT issues and to obtain views on the benefits expected to be gained from the use of electronic material in appeals.
The purpose of this Report is to provide advice to the Council of Chief Justices on the Information Technology (IT) issues associated with the use of electronic material in appeal cases and to recommend strategies and action that would assist Appeal Courts in moving towards electronic appeals in the future.
The Report is provided in two Parts, the first consisting of an executive summary and recommendations for consideration by the Council. The second Part represents the full Report.
Part 3 Electronic Appeals - The Business Case
This Part identifies the ‘business’ needs of Appeal Courts which the electronic appeal book initiative aims to address.
It also briefly discusses the future role of IT in courts and provides some guiding principles for the use of IT in courts.
Part 4 A Model of the Future Electronic Appeal
Outlined in this Part is a conceptual model of a possible future electronic appeal process. It describes what ‘might be’, based on what technology is capable of and the general directions being taken in relation to the use of IT and electronic material in courts.
Part 5 IT Issues
This Part identifies a number of IT and other issues associated with using electronic material in an appeal situation. For each issue the implications for electronic appeals are discussed and solutions proposed.
Part 6 Strategies for Moving towards the Future
This Part outlines strategies and options for moving from the current paper-based appeal process to the electronic appeal of the future. It is recognised that courts are not in a position to immediately pursue all of the components necessary to fully support the concept of an electronic appeal; consequently, a variety of strategies are proposed which individual Courts can adopt having regard to their own strategic plans.
A key strategy for moving forward is to share experiences across the various courts and thus avoid duplication in the development of systems which are common to all courts.
Part 7 The Need for Standards
This Part discusses the need for standards and identifies a number of key areas where standards should be developed as a matter of some urgency if the various jurisdictions are to move towards a common goal. A course of action is proposed for the development of these standards.
The aim is to develop standards which will enable electronic material to move through and be processed by all those involved in the judicial systems regardless of the IT system or software used.
Part 8 Test and Pilot Projects
In addition to the testing and piloting of the electronic appeal book models as they are developed, a number of courts and court administration authorities have or are proposing to test and/or implement electronic court processes relevant to the electronic appeals concept.
Part 9 Intermediate Uses of Electronic Material in Appeals
This Part describes some of the activities that Appeal Courts may undertake in the short term to gain experience in using electronic material as well as gaining some of the potential benefits available from the use of IT.
Part 10 Proposal for a Research Project
This proposal is contained in the Executive Summary.
Part 11 Recommendations
This Part sets out recommendations for consideration by the Council.
The courts and the judicial systems generally are facing enormous pressures in terms of:
• increasing caseload
• increasing complexity of cases
• increasing delays and backlogs
• expanding jurisdictional limits
• resource constraints
• pressure to improve access to justice
• expectations of performance improvement
• theperceived high cost of justice.
• pressure to adopt international ‘best practice’ in terms of delivery of justice
Among other strategies, courts are looking to information technology (IT) for solutions to ease these pressures.
IT has already proved to be beneficial to courts in such areas as:
• automating repetitive processes (such as lodgments, payment processing, generating prescribed forms and documents)
• integrating the various business functions of the courts (case management, accounting, etc)
• integration between court systems and the systems operated by other justice agencies
• improving client service (such as through on-line inquiry)
• reducing delays through computer-assisted case flow management
• storage and retrieval of documents and exhibits for large and complex cases.
So pervasive is the use of IT that some courts now claim over 95% of all business processes are directly or indirectly impacted by computerisation. IT systems have strongly complemented the various administrative processes, resulting in substantial productivity and other benefits to courts.
In the courtroom, the benefits of using computer-based technology to assist with long and complex trials are well documented, particularly in terms of saving courtroom hearing time. Estimates of savings amounting to 20-25% at the hearing are common. Also, IT can offer benefits to the judge during the preparation of the judgment
However, the benefits from using IT and electronic material in the judicial system are not confined to the courtroom and pervade all stages in the appeal process. Examples of where benefits are likely to be gained from the use of electronic appeals are shown in the description of the conceptual model in Part 4.
While IT has played a role in the provision of justice and in the management of courts for some years, that role is expected to dramatically increase in the future.
In his Interim Report released in June 1995, Lord Woolf stated, in regard to the use of information technology:
“I believe that Information technology (IT) will have an important role to play, not only in supporting the implementation of the recommendations of the Inquiry, but also as an influence on longer term, more far-reaching changes which IT will make possible. IT itself is also likely to be a catalyst for change on an ongoing basis - as new technologies are introduced to the civil justice system, it will be necessary to refine and possibly change altogether the underlying processes by which cases are handled at present. This will avoid the danger of automating pre-existing but defective manual systems.”
The Final Report by Lord Woolf strengthens his views as to the future importance of IT in respect of courts and the judicial system. Chapter 21 of the Report refers. This Report is also available on the Internet.
Earlier, in its Report of the Commission of the Future of the California Courts, the following remarks were made in relation to appellate jurisdiction:
“Significant improvements may be attainable through enhanced technology, alternative appeal processes and more refined and responsive appellate proceedings.”
“No less than for other judicial and nonjudicial government agencies, established and emerging technologies offer new opportunities for appellate justice. In the commission’s vision of future appellate justice, all information will be stored electronically. Paper’s use will be limited to those applications in which it is clearly the superior medium. The courts and all state agencies will utilize a standard electronic data structure that will accommodate widespread information sharing.”
(pp 165-166)
(“Justice in the Balance - 2020” Report of the Commission of the Future of the California Courts)
In the same report, four principles were identified for guiding courts in the use of information technology in the future:
1. Data should be entered (into the system) only once (and as close to its source as possible and then re-used as required)
2. Delays between steps should be reduced by:
a. consolidating steps
b. performing them in parallel
c. speeding the process
d. eliminating scheduling conflicts
3. Wherever possible, telecommunications should be used to:
a. facilitate access
b. reduce the need for travel to court facilities
c. speed the process
4. Courts should manage their time and resources zealously to achieve an active, efficient and effective case management process
(Note: by telecommunications, the report was referring to all means of electronic communication, including telephones, fax, electronic data communication, video-conferencing etc)
For a standard appeal book, the majority of material already exists in electronic form. Accordingly, at face value, the appellant and/or Appeal Court is required to gather it all together and re-submit it to the Court of Appeal. As much of that information is text-based and has previously been captured in an electronic form, the process of compiling an appeal book represents a very high cost indeed to litigants but contributing minimal ‘added-value’.
The application of IT has the potential to reduce the costs of preparation of appeal books to a fraction of what is currently the case while also having the potential of providing benefits throughout the whole of the appeal process.
The concept of the electronic appeal book is quite simple. In the first instance, each of the standard contents of the paper-based appeal book are replaced with electronic versions to form an electronic appeal book. These are readily copied at minimal cost and can be lodged, distributed, etc electronically.
Indexes and the like may not be required at all since the computer can index material automatically.
However, for the electronic appeal book to be useful, appropriate hardware and software tools will be needed to support the judge and others in locating relevant information and in ‘tagging’, noting and summarising the material provided.
In line with the concept expressed at the Council meeting in October 1995, it can be seen that appeals material should be capable of being accessed and incorporated into successive appeals, together with new material being provided in electronic form as cases proceed through these levels.
In the long term, it would be expected that all this material will be available, as appropriate, to anyone by simply requesting the material from their PC at their desk or in the courtroom.
What follows is a summary of the characteristics of the electronic appeal, including the electronic appeal book, and a description of the use and benefits these can bring to the appeal process.
Later in the Report there is discussion on the process of moving from a paper-based appeal system to the use of electronic appeal books and electronic appeals.
Electronic Lodgment
• electronic lodgment of notice of appeal
• appeal validation process performed ‘on screen’ by Registrar
• electronic advice to the appellant of acceptance or rejection of the appeal
• electronic funds transfer of court fees payable upon acceptance of appeal
Electronic Requests for Information
(particularly relevant to criminal appeals)
• electronic publishing of the fact that an appeal has been lodged
• electronic generation of requests for information such as case and criminal history. This would be an automatic by-product of the case management system which manages the whole appeal process. (It would eliminate many tedious and time-consuming tasks). Also, by linking it to the case management system, the details of the appellant, the previous trial etc can be automatically incorporated into the request for information with the only new information possibly being the addressees to whom the request is being sent. In many cases, this would default to the local agency responsible for criminal history.
Electronic Lodgment of Grounds of Appeal etc
This is perhaps the only new information relating to the existing case. As such, there would be some advantage in court officials having the opportunity to ‘vet’ the grounds and have the opportunity to return the electronic lodgment to the sender if it is considered that the grounds are inadequate (or invalid). If standards could be agreed in terms of the structure and content of the grounds of an appeal, then the electronic text which is carried within the field could form the basis of a one page form which would be completed by the appellant or his/her solicitor.
• electronic messaging and exchange of electronic documents between parties, their solicitors and the courts. This could be via telecommunication or simply via floppy disc or CD (All involved will need to ensure that they have and utilise anti-virus software)
Preparation of an electronic appeal book (or partially electronic)
• key contents of the electronic appeal book obtained from existing public databases eg:
- transcript - judgment/orders/reasons of the trial judge
This would have the effect of ceasing to require appellants to lodge information with the courts which it should already have ‘on-file’
• preparation of the appeal book in electronic format which can then be made available on disk or CD suitable for private use by the parties and the appeal judge in chambers, in court or while away from chambers (eg if appeal being heard interstate).
Electronic Case Management
• Integration with case management systems for every key event during the life of the appeal
Electronic Hearing
• standardised form for electronic transcript produced during the appeal hearing, including the insertion of specific ‘codes’ to enable lists to be generated and to support rapid navigation of voluminous transcript
• use of specialised software to support transcript scanning / validation
• adherence to electronic publishing standards to ensure the integrity of transcript cross-references, etc.
• use of PCs and access to electronic appeal book and electronic legal research databases in the courtroom
• possible use of hypertext links by counsel when presenting material in the courtroom (this would enable participants to quickly move to specific documents)
Electronic Support at Determination Stage
• standardised form of judgments, possibly incorporating hyper-text links (or electronic pointers) to other material which is cross-referenced by that judgment (such as statutes, other judgments, etc)
• use of specialised software to allow judicial officers to make confidential electronic annotations, notes, etc in relation to transcript.
• ability to ‘cut-and-paste’ extracts from appeal book materials into the new decision
• use of ‘red-lining’ and other techniques to support circulation and commenting on draft decisions
Electronic Distribution of Judgment
• publication of judgment and reasons for decision on public data-bases such as the Internet
• electronic messaging to advise others of the decision immediately it is handed down.
The four most common components of an appeal book are:
a. The notice of appeal / grounds
b. The text of the judgment being appealed against and perhaps sentencing remarks
c. The transcript (or portions thereof) of the trial
d. A copy of the record of trial and/or criminal history.
In many appeal situations, the information described as ‘b’. ‘c’. and ‘d’. are already held in electronic form somewhere within the court ‘system’ yet the appeal process requires the information to be re-lodged (in most instances at least) with a court which is part of the same system. This places unnecessary time and cost burdens on litigants.
The use of electronic appeal books could significantly reduce the cost of the present paper-based appeal books. Currently, the cost of an appeal book is many hundreds of dollars and multiple sets are required for each appeal with the cost being generally higher in civil cases. The preparation of these consumes considerable resources, - labor, paper and equipment - which, apart from paper, could be better utilised elsewhere in the judicial system. In the future, the appeal books could be prepared in a fully or partially electronic form with consequential cost savings.
The use of electronic material and the ability to instantly share that material could assist in clarifying the appeal issues and thus reduce the court and legal resources in the appeal situation by enabling the parties to more quickly identify, extract and agree on the issues.
One of the time consuming tasks now undertaken in the appeal process is the use of registrars to assist in the settling of the appeal book. Sometimes, for varying reasons, the parties and/or their legal representatives are unable to easily agree on the items for inclusion in the appeal book and valuable court time is lost in these situations.
The use of electronic material could avoid this situation as some electronic material could be included without regard to its effect on the size of the appeal book, if it were to be produced in electronic form. Transcription is one example, where the whole of the transcript could be provided electronically (subject to cost and availability) to avoid argument.
Further, the use of electronic appeal material, in conjunction with other changes to court processes, could result in earlier involvement of counsel in the examination of the issues. The effect could be that counsel's advice on merit could be given more quickly.
It is proposed that greater access be provided to electronic versions of decisions, transcript and other materials which typically comprise an appeal book. The appeal could be lodged electronically and, subject to initial vetting by a registry official, the lodgment could then be accepted into the court’s integrated case management system.
In the first instance, it is expected that the lodgment would comprise a statement of the grounds together with appropriate cross-references to the relevant material which could then be accessed electronically via the Internet or other electronic data exchange services. If leave is subsequently granted to proceed with the appeal, the material would then be down-loaded onto a single repository on disk or CD. Other arrangements might also apply.
The use of electronic filing with references to accessible electronic documents would minimise the initial effort involved in lodging an appeal. Provision of the material in electronic form would substantially reduce the time and cost of preparing an appeal book.
It is expected that various service organisations, and perhaps individual courts could offer suitable services at moderate cost to litigants who choose to appeal in person and do not have access to the necessary equipment etc.
For appeals emanating from the lowest jurisdictions, a substantial portion of the time involved in considering the appeal is simply associated with coming to grips with the facts of the case. Court case management systems need to be able to generate a clear chronology of events from the initiating process right throughout the history of the case. This chronology needs to have regard to realities such as matters being committed to higher jurisdictions, matters being transferred to another court, the act of splitting or combining matters, etc.
In the long term this means effectively eliminating the manual record on case file covers and the like and greater emphasis on integrated court case management systems which are multi-jurisdictional in design or which offer comprehensive data interchange across different systems. The ability for courts to generate an electronic form of a Copy of Record showing the complete history of the case down to every case event is the key to a fully functional electronic appeal book.
Likewise, the various prosecution and related systems need to be able to generate a comprehensive report in electronic form of prior convictions etc.
These two items would do much to assist the appeal judge to gain a thorough understanding of the process which had previously been followed and the other convictions (where relevant) which may have been taken into account in the matter under appeal.
For more complex appeals (typically arising from one of the higher jurisdictions) judicial and judicial support staff time and effort is expended in terms of:
a. Considering the material presented and gaining an appreciation of the case background
b. Managing the conduct of the formal hearing
c. Preparing and delivering the judgment and reasons
d. General administration activities associated with the appeal
With the paper-based appeal book, the judge typically reviews the contents of the appeal book in a serial fashion. With an electronic appeal book, the judge can more easily utilise special electronic ‘pointers’ contained within the material itself and pursue particular themes or lines of argument, returning at will to the point of departure.
In the Courtroom
During the formal hearing, argument will typically revolve around the transcript, other exhibits or other judgments; all of which are necessarily included within the appeal book. The use of an electronic appeal book will enable the judge to more easily navigate the voluminous material provided, search and retrieve information and make and store electronic comments and notations in a similar manner as for paper-based material.
Details of IT equipment required in courtrooms and the set up of the electronic courtroom of the future are provided in a number of “Courtroom 2000” models available separately.
It is expected that benefits that will be achieved through using an electronic version of an appeal book will be consistent with the advantages already being experienced by judges involved in long and complex trials where IT tools are deployed.
Post Hearing
In preparing and delivering reasons the electronic appeal book offers the ability for relevant information to be ‘cut and pasted’ from various components of the electronic appeal book into the new decision. Hence, it can increase the speed of preparing decisions.
At the time of an appeal being lodged electronically, it should be possible to automatically ‘publish’ the fact of the appeal together with a précis of the grounds almost immediately. This approach would alert other judges who may be considering a matter which has been argued on the grounds of the previous judgment that the decision is under appeal.
At the time of handing down the decision, copies could be provided to major parties and the press in both paper and electronic form and subsequent enquirers could access the published judgments on-line. This would reduce the clerical effort involved in preparing for handing down major decisions and would also reduce storage space and wastage associated with having printed-versions ‘on-hand’ to respond to counter inquiries.
At the conclusion of the hearing, the decision would be published in an electronic form for public access and could be electronically ‘mailed’ to the trial judge, prison authorities and others as necessary to advise them of the outcome. This would ensure that relevant information is widely disseminated in the shortest possible time-frame. The decision would then also become part of the accumulated data base of research material and precedents.
The administrative costs of courts will also be able to reduced through:
• reduced need for storage space for appeal books and court files
• the use of intelligent computer systems to allow the entry of data once only. This will also lead to a reduction in error.
• reduced photocopying and paper costs
• reduced administrative costs in moving physical files and/or appeal books around the Court (eg from the Registry file room to judges chambers to the courtroom etc)
• better case management (through interface between electronic appeals and case management systems)
• better case management of appeals
(The case and/or caseflow management activities could become considerably more efficient and effective through the use of “intelligent” case management systems which automatically direct electronic material to the relevant destinations.)
• space saving in the courtroom (eg multiple appeal books for judges and parties) with reduced need to move the existing paper appeal books
As an intermediate step in moving towards the electronic appeal of the future, it is recommended that Appeal Courts examine the use of electronic appeal books, either partially of fully electronic, depending on the circumstances in each appeal..
Currently, appeal books represent photocopies of material of which, generally, a significant percentage (and often the most relevant material) would already be available in electronic form. This material may include:
• notice of appeal
• grounds of appeal
• response to grounds of appeal
• judgment/order being appealed against
• reasons for judgment or order being appealed against
• sentencing remarks
• transcript of previous proceedings
The remainder of the appeal book consists of other paper-based material which either has not been produced in electronic form or is not readily available in electronic form.
Subject to a range of IT issues identified in the report, it would not be difficult to establish arrangements for having the electronic text material provided in one composite electronic source, for example on a floppy disc or on a CD. Subject to the type and details of an appeal, the size of an appeal book could easily be halved, with a comparable reduction in printing cost.
However, provision of the remaining material would require it to be scanned into electronic form as a document image requiring additional effort and cost. Whether this would be justified in a particular case would depend on individual circumstances.
What is now proposed is that further detailed work be undertaken on the two proposed models to develop them into generic working models, the principles of which could be embraced by the various Appeal Courts to suit their situation.
To facilitate the role of the Appeal Courts in fulfilling their role of delivering justice, judges may also need to direct that appeals material be provided in electronic form to suit the requirements of the Court.
Consideration of electronic appeals raises a considerable number of IT issues and which, to some extent, are magnified because appeals appear at the end of a case life-cycle and often involve:
• law enforcement agencies
• litigants
• third parties (evidence and exhibits)
• legal practitioners
• government agencies
• tribunals
• lower courts
All of the above will typically have their own IT systems, involving disparate hardware, software and communication technology making it difficult to bring the appeal material together into a standard electronic appeal book and to manage the electronic appeal. On the other hand, virtually all technical issues have been the subject of extensive examination over recent years with technical solutions being available or possible.
The ‘issues’ have been broadly categorised into ‘IT-related’ and ‘Other’ as outlined in the following sections in which each issue is addressed.
Further action is required to fully ascertain the implications of these issues in the electronic appeal situation and this action is identified in Part 6 as part of the strategies for moving towards electronic appeals.
In the context of electronic appeals, IT incompatibility will have most impact in relation to different text formats used for text-based material which is to be included in the appeal book.
During the appeal process through successive courts, appeals material is likely to be input from a multitude of sources including:
• courts
• lawyers (solicitors, barristers)
• litigants
• legal libraries
• electronic legal databases (CD-ROM, Internet)
As cases move through the judicial system via the various appeal levels, possibly spanning a number of years, there exists the potential for major problems if the collection of text material in electronic form has been prepared in different word processing formats and in different versions of the same word processing software.
Not only will this be the case, electronic documentation will have been prepared using different formats (including font, font size, paper size, different margins, paragraph styles, page numbering placement, paragraph numbering).
However, the degree to which IT compatibility is an issue depends largely on how the material is to be used.
Searching
For searching purposes, it will matter less that the material is in different formats as the text searching tools are generally capable of searching most formats.
Transcript
For transcript, it is important that pagination be maintained for some time yet and this is covered separately in the section on transcript at Part 5.4.
Solutions:
There are a number of possible solutions to this issue eg:
1. Use “Standard” languages. There are a number of “standard” text languages available which do not rely on use of the proprietary word processing products and text could be converted to a “standard” language. However, the use of such languages would bring their own problems which would need to be addressed.
2. Leave electronic material in its original format. This generally will not affect the searching of text material as most search tools can read nearly all word processing formats.
In the context of electronic appeals, more work is required to consider the practical implications of constructing electronic appeal books in electronic format and in exchanging data in different formats, and whether the use of standard text languages might have a role to play. This would form part of the proposed research project.
Associated with the issue of IT compatibility is the issue of document management and control.
This has applicability to such aspects as:
• the storage of electronic data
• the identification of stored electronic data
• the identification of new material to be added to the appeal book
• establishment of security for the stored electronic material
This is also a major issue in the storing of electronic material by an Appeal Court and in the preparation of an electronic appeal book. Electronic information will need to be stored in a manner which will allow ready identification by all users and be consistent for all electronic appeals.
The technical details of electronic document management and interchange have been well documented over the years, in particular, by the Judicial Education and Document Data Interchange (JEDDI) project which has been ongoing in the USA There are also Australian Standards covering records management and the Commonwealth Government has also undertaken extensive work in this field under the Information Management Steering Committee (IMSC) and the Government Information Services Policy Board (GISPB) which advises the Australian Government.
Solution:
Develop and/or adopt existing standards for storing electronic material, particularly as an electronic appeal book.
Also associated with IT compatibility are issues relating to the production of transcript. In moving through appeal processes there would appear to be a need:
• to maintain pagination no matter in what format transcript is produced in paper form (to meet the word processing needs of the persons or organisations requiring transcript). In the future, it is possible that this requirement may change (if an electronic form of paragraph numbering becomes feasible);
• for consistent identifiers no matter in what jurisdiction the transcript is being recorded (as transcript may cross jurisdictional and state/ territory/ Commonwealth boundaries);
• to be able to generate the following electronically (and others as identified): - list of witnesses list of exhibits - list of matters for identification - list of jury absences (most of these are not generally required for appeals but are very relevant to the preparation of transcript for a matter which may be appealed)
Solution:
Develop standards for meeting these requirements. This is discussed in Part 7 on Standards.
Security is of critical importance to the courts in relation to the use and management of electronic material.
In the future, courts will be almost entirely electronic, both in terms of managing the work of the courts and in storing case material and other data such as the court’s judgments and reference material. Access to and transfer of electronic material will be via email and the use of paper will dramatically decrease.
Security will therefore be required in a number of areas:
• appeal material (transcript, pleadings, electronic evidence). Access will need to be restricted to authorised persons. For example, parties to an appeal may be restricted to certain parts of the electronic appeal book at different stages of the preparation of the appeal book and the hearing of the appeal.
• virus protection and protection against unauthorised access (hacking). The courts’ IT systems and data need to be protected against unauthorised access and/or viruses
• Internet use. This currently poses a problem as the Internet, while an extremely valuable tool, is an inherently “insecure” environment and poses significant security risks to courts.
However, work is currently underway within Commonwealth agencies to develop a certified Internet security firewall product. This would provide the necessary protection to internal networks from unauthorised access, viruses, etc from the Internet while, at the same time, allowing a Court to access the Internet for transmission of electronic data (such as appeal material) and for research purposes
• assurance of authenticity when transmitting electronic documents
This is technologically feasible and has already been implemented in some situations.This is not a new issue either to the courts or to law-firms. However, it will be incumbent on all involved in the appeal process to ensure that appropriate security measures are taken to protect the confidentiality and security of work in-progress.
Solution:
Develop practical security measures and guidelines for use in electronic appeal situations.
Archiving electronic material is an issue as courts move to become fully electronic. The Appeal Courts are superior courts of record and are required to retain certain court records in perpetuity. However, this is a universal issue on which much work has already taken place. There are also Australian Standards which cover storage of electronic material and this area is constantly under review by records management specialists. (see Australian Records Management Standard AS4390.6-1996 - Standards Australia)
Solution:
Identify and use recognised and accepted strategies for the storage of electronic material. Some of these strategies are:
• converting all electronic text material to new word processing software or versions as organisations make these changes;
• storing the relevant software program when storing electronic text material
• storing the material in paper form
• storing in another medium
It was recognised by the Council at the time of proposing this project that the needs of litigants-in-person without access to IT resources would need to be addressed.
The needs of litigants-in-person can be expected to increase as Courts move towards a greater use of IT. It is not appropriate at this stage to specify how these needs might be met nor the role to be played by Courts and/or other organisations.
However, the lodgment of material in paper form and provision of a paper appeal book to a litigant-in-person would be expected to remain available. The provision of a “one off” copy of a paper appeal book (or relevant parts) would still be less expensive than the production of a complete set of paper appeal books.
It may also be that, for people generally without access to appropriate IT facilities, providers of such services might emerge in much the same way as organisations which currently provide services to people in the preparation of resumes and curriculum vitae.
Similarly, there is a need to consider the legal representatives without appropriate IT resources. However, it is not expected that the IT requirements for legal representatives would be onerous and, as with courts, most of the IT equipment would have other use within the office.
It has been said that technology is changing too fast for people to ‘keep-up’ and that expensive capital items too quickly become obsolete. While this has been the case in the past, the price/performance ratio for equipment continues to reduce and there is a marked trend towards de-facto standards. Thus, this aspect should not pose insurmountable problems.
Solution:
Consider the specific needs of litigants-in-person and others without appropriate IT resources when undertaking further detailed work on this project.
Electronic data exchange will be vitally important in the world of electronic appeals. Data exchange is now more easily achieved and there are standards covering the way in which electronic data may be best exchanged.
Solution:
Appeal Courts should conform to standard communication protocols when developing communication arrangements.
The move to a fully electronic appeal book must also include an examination of the role of document imaging.
At present, much of the existing paper appeal book consists of documents which are not in electronic text form or are not readily obtainable in this form. This material mainly comprises evidence and exhibits already presented at the previous trial hearing.
To provide this material in electronic form as part of an electronic appeal book would require the scanning of each page into either:
a. An electronic text document (using OCR - optical character recognition technology); or
b. An electronic document image
The former would appear to have limited application to an appeal situation. The latter has been used effectively where there is a very large amount of material that needs to be considered and is particularly useful for complex trials and appeals, as well as Commission hearings with the New South Wales Police Royal Commission being a model example.
The extent to which document imaging has a role to play in the electronic appeal book is something that requires detailed examination in a number of respects, including cost effectiveness.
There is also another aspect that might be considered here and that is whether the provision of this material might be handled differently in an electronic appeal situation.
Experience seems to suggest that much of the evidence/exhibit material is not referred to at the appeal hearing although it may be material which the appeal judges wish to examine subsequently. If this is the general situation, then there may be a case for excluding most of this material from the electronic appeal book. If appropriate and cost effective, it may be that only a limited amount of material would need to be scanned into an electronic image.
Solution:
1. Undertake further examination of the cost effectiveness of document imaging
2. Examine whether all non-electronic text material needs to be submitted as part of the appeal book or can be referred to and submitted subsequently if required
At this stage of the project the Working Party has not separately considered the IT requirements for the courtroom. There is already a considerable body of published material on this subject describing many examples of a “Courtroom 2000”.
There is also extensive material relating to litigation support systems for the courtroom, for example the Commonwealth DPP system which is discussed in the Journal of Judicial Administration (May 1996). The relationship of these to the electronic appeal book would need to be examined.
Solution:
Examine “Courtroom 2000” models and courtroom litigation support systems for relationship to electronic appeal books
Reliance on co-operation and synchronisation between the courts’ technology plans and those of law firms:
To some extent this will be an issue but the magnitude of the issue is steadily reducing since many of the proposed components will be utilised for a multiplicity of purposes. For example, electronic lodgment and the associated electronic funds transfer of lodgment fees will not be restricted to electronic appeals. Likewise, on-line information services such as AustLII etc. are already being widely utilised by law-firms. Accessing of transcript, judgments, statutes, other sentences, etc will already part of the lawyer’s skill-set.
While the courts and judicial systems of the future will become very much dependent on IT, it will be many years before the stage is reached of appeals being almost ‘paperless’. The cost of investment in IT, particularly if duplicated across courts, and the effort and resources required in developing new appeal processes and supporting IT systems will be factors in delaying the move of courts to a fully electronic appeal situation.
Notwithstanding these restraining factors, the opportunity now exists for the Appeal Courts to implement strategies, both short and long term, which would have the effect of placing the Appeal Courts in a position to be able to implement elements of electronic appeals on a staged basis, to build towards a fully electronic appeal process in the future.
Fortunately, many of these components are not exclusively in the domain of the electronic appeal book and are already the subject of other initiatives with their own strategic drivers and goals. It is proposed to leverage upon these parallel activities and thereby gain sufficient understanding of the technical and implementation issues for the electronic appeals project to proceed with reduced risk towards a pilot integrated solution.
To assist in this process, a number of strategies are identified for consideration by the Appeal Courts and supporting organisations, namely:
1. Development and promulgation of standards for key areas
2. Introduction of IT support systems for the judiciary (“Judicial Support IT Systems”)
3. Intermediate use of electronic material in appeals
4. Testing of components of the conceptual electronic appeal model
5. Alignment of courts in the use of IT
6. Addressing Cultural Change
7. Develop standard Rules of Court applicable to the use of electronic appeals material
8. Establishment of Shared Data Repositories (sharing electronic data)
9. Judicial Education and Training
10. Integration of electronic appeals with case management systems
11. Installation of IT infrastructure (eg cabling of courtrooms)
Many of these strategies do not involve significant cost or major investment in IT. In fact, where an IT cost is involved, it will often be the case that the IT investment will also have applicability elsewhere within the Appeals Court, such as for case management and existing court administration activities.
The development of standards will underpin the successful move to electronic appeals, being the major means to overcome IT compatibility issues.
The development of Standards is discussed in more detail in Part 7.
In addition to those standards which have specific application to judicial systems, there are also national IT standards published by Standards Australia and these should be adhered to in the development of both information and IT systems.
The judiciary will be one of the major beneficiaries from the introduction of IT to the appeals process, particularly post-hearing, when undertaking research for their judgment and preparing their reasons for decision.
It is not expected that judges themselves will need to individually use all the IT tools and systems that are, or will become, available. Rather, what is proposed and will be of most benefit is that their support staff (personal secretaries, associates, research staff etc) are provided with all the IT tools to support the judiciary in an effective manner. For example, it is not an effective use of resources for judges’ staff to visit a library seeking reference material which is already available in electronic form.
With transcript being a primary source of information, it will be important to provide judges will easy-to-use software tools to facilitate navigation of textual material, searching for key events, exhibits, etc. and which also allows the judge to ‘tag’ and mark-up the electronic transcript. This same functionality is required by judges in terms of litigation support for long and complex trials and there would be real advantage if the same tools could be used for both.
There are two components of software required: transcript scanning (to verify the structural correctness of the transcript) and transcript analysis. For such software to operate effectively, great importance needs to be placed on the accuracy of the transcript itself and on the development of transcript conventions.
A number of products have recently become available which purport to satisfy this need. At least one is an Australian-based product and is currently being evaluated by a number of courts. Subject to the findings of those evaluations, the Australian product may offer particular advantage in terms of support and willingness to adapt to satisfy local initiatives.
An implication of moving towards an electronic appeal is the fact that judges will need to have access to computer equipment in chambers, in court and (possibly) at home. This implies some form of standardisation and the development of policies concerning the ‘style’ of equipment provided (ie. lap-top computers, standard desktop computers, etc.)
There are also implications in terms of training judicial officers in using the new hardware and software. Until a substantial number of appeals are lodged electronically, there is a substantial risk that skills acquired will quickly fall into disuse unless there are continuing opportunities to keep the skills current. This aspect further underscores the value of selecting products which have a similar ‘look-and-feel’ to users.
There would appear to be a number of situations in which the use of IT and/or electronic material would bring immediate benefits to the appeal processes at the cost of a small investment in IT and which, as already indicated, will also have current or future value in other areas of Appeal Courts.
These are dealt with separately in Part 8.
There would be significant benefit to the Appeal Courts as a whole if their approach to IT were to be aligned where this is possible.
Currently, all Courts are developing and implementing IT solutions generally without giving strategic consideration to the future impact of the use of electronic material in the future.
These solutions are usually identified through an IT strategic planning process and it would be beneficial to establish a means of seeking to align each Appeal Court’s IT strategic plan with a common direction in which the Appeal Courts agree to move.
To achieve this outcome, the Council might wish to consider the following strategies:
• the establishment of a forum for sharing court technology within Australian courts
• establishing a central repository for court IT strategic plans (ie a site on the Internet)
• holding an annual judicial IT conference (involving a mix of judges involved in IT management, managers responsible for IT within a court and IT managers)
• establishing a “newsgroup” for the exchange of information via the Internet
The judiciary, courts and the legal profession need to be made more aware that they need to assist in moving to the electronic age.
If the current directions are not recognised and planned for, some or all of the above will find themselves left behind. Already, the technology is here which can assist all involved in the preparation, hearing and determination of an appeal using electronic means, as well as supporting the management of the appeal by the court and the parties through the appeal process.
The Courts have a responsibility to assist in achieving this cultural change and there are a number of ways in which they might do so:
• by developing an “electronic” culture within their court eg:
- by replacing paper material with electronic versions wherever possible, such as using internal email (electronic mail) to distribute internal material electronically rather than by paper
• by providing the judiciary with judicial support systems
• by arranging for judgments to be distributed electronically immediately following delivery, where appropriate:
- to AustLII and other central database repositories
- to the parties - to the Court’s internal judgments database
- to others as appropriate
• by other initiatives such as:
- electronic lodgment of appeals
- on line enquiry
- down loading of cause lists
- access to judgments
- email distribution of transcript
- electronic access to transcript
- electronic access to own judgments and unreported judgments
In the future the Rules of Court should be amended in a standard manner to allow the use of electronic material in appeal situations and within and across state, territory and Commonwealth boundaries.
As the concept of an electronic appeal book is developed, there may be value in developing a standard Practice Note to cover the preparation and contents of an electronic appeal book, allowing for modifications by each Appeal Court to suit their particular requirements.
It is suggested that all Appeal Courts establish data repositories within their court IT systems where common, relevant data resides for access by all within the court. Data might include:
• all judgments (reported and unreported)
• Court Rules and Practice Notes
• legal databases (CD-ROM)
As indicated above, it is not expected that all members of the judiciary will embrace IT. However, it is critically important that they all develop an understanding of the role IT will play in courts in the future. Refusal to acknowledge this role will delay the attainment of benefits to the courts and litigants.
To assist in this regard, it is proposed that the development of the electronic appeal book models would be accompanied by the preparation of information material describing how best use may be made of IT and electronic material in an appeal situation.
The lodgment of an appeal is the initiating event for each new case. It follows then that the processing of that lodgment should create a new case record, cross-linked to the original case number, etc. Courts must be encouraged to ensure that related business functions are closely integrated, such as through each Court’s case management system.
The most significant impediment to the introduction of an electronic appeal system is the lack of uniform standards across the jurisdictions. Without such standards, there is little prospect of developing an efficient and effective electronic appeal system.
Whilst there has been a number of attempts to produce a uniform set of standards for electronic court documentation over the last ten years the problem remains unresolved.
The need for standards assumes critical importance where information technology and the exchange of electronic material is involved otherwise the efficiencies available through the use of IT will not be achieved. The development of, and adherence to, standards applicable to the use of IT represents the major means of overcoming many of the IT issues such as incompatibility of IT systems and software.
Clearly, some of these will be continually evolving as technology improves and therefore standards must, of necessity, be advisory only. However, the very fact of increasing use and diversification of technology makes the need for minimum standards more essential.
In their major study on “Information Technology in Complex Criminal Trials” (1993), Professors Greenleaf and Mowbray pointed to the necessity for advisory standards to be developed in a number of areas, including:
• text and image portability between databases
• marking up codes for transcript
• courtroom networking and display devices
There are also other areas in which the development of advisory standards will either be essential or of benefit
For Australia, the only known standards developed to date are those relating to the uniform production of judgments (ie catchwords, judgment format and a judgments style guide) developed by Justice LT Olsson for the AIJA.
As far as is known, the only other current work being undertaken is by the Commonwealth Committee on Document Handling and Court Presentation. This arose from a meeting, in November 1993, of the Heads of Commonwealth Operational Law Enforcement Agencies (HOCOLEA) when it was agreed to develop compatible litigation support/court presentation systems and standards between Commonwealth agencies and in doing so to consult with appropriate State bodies and the AIJA. This project was reported in the Journal of Judicial Administration of May 1996.
In the U.S.A., the American Bar Association has developed standards for:
• Appellate Court Technology: General Principle (Section 3.90)
• Technical Support for Appellate Judges and Their Staffs (Section 3.91)
• Appellate Court Information Support (Section 3.92)
There are also Australian IT Standards which will have applicability to electronic appeals, relating to electronic communication, document management etc. These are published by Standards Australia and include standards for:
• Information Storage
• Records management
• Privacy
• Security
• Financial Transaction Systems
• Electronic Commerce
It is considered that specific standards for electronic appeals should be developed and agreed for the following:
• Electronic Lodgment (process and format of electronic notice of appeal form)
• Communications protocols (TCP/IP)
• Transcript Format (including coding conventions)
• Case History format (Civil and Criminal)
• Common format for Sentencing Remarks
• Document Management (document identification and file naming conventions)
• Security in relation to the electronic exchange of data and the preparation of appeal books
If appropriate, existing standards should be agreed for the following:
• Catchwords (as developed by Olsson J)
• Judgments format (as developed by Olsson J)
• Electronic Funds Transfer (Standards Australia)
• Electronic Communication (Standards Australia)
It is also considered desirable to develop guidelines for the following, building on work that has already been undertaken in these areas:
• IT Equipment for Judges’ Chambers
• IT Equipment for courtrooms
• Security for IT systems in relation to use of the Internet (eg use of security measure which have appropriate security clearance)
It is recognised that many groups throughout the Executive and Judicial arms of Government together with commercial and philanthropic organisations will have an interest in setting standards. However, the very size and diversity of this grouping makes it extremely difficult to reach consensus on a voluntary basis.
It is therefore proposed that the Council take the lead in this regard, in that it has the most influence in the setting of standards. It is suggested that the task of coordinating the IT standards be performed by the Working Party with the research officer being the focal point for coordinating the IT standards necessary to establish the working electronic appeal models.
As already indicated, one of the strategies for moving to electronic appeals is to develop and test the two proposed models of an electronic appeal book. At this stage, detailed development work is now required to translate the concept into practical working models.
Following their development, these models would be piloted prior to be refined into final models which can then be adopted, adapted as required and implemented by each Appeal Court.
There is also other activity in train or proposed which may assist with the eventual development of the electronic appeal model.
The High Court is currently undertaking a separate project to design a new case management system as the existing case management system is approaching the end of its useful life. Within the framework of this project, it is proposed to trial the feasibility of an electronic appeal system, by simulating the electronic submission of appeal documentation utilising the Internet. The trial would not attempt to transmit ‘live’ appeal documentation. Rather, the electronic data submitted would have already have passed through the Court in printed form. The matters themselves would have already been heard and finalised.
It is envisaged that, if a suitable interface can be designed, the trial would allow the High Court to test if electronic documents could be submitted to the Court over the Internet. If this was possible, the trial would be extended to test the electronic submission of appeal documentation.
The aims of the trial would be to examine:
1. if an interface can be designed that allows electronic appeal documentation to be automatically incorporated within the framework of a judicial case management system
2. appropriate methods to manage the resultant document flow
3. if the Internet can be utilised as the transmission medium
4. what changes would be required to be made to High Court Rules and procedures to allow electronic appeal documentation to be submitted to the High Court
Interim security measures will be employed by the High Court to ensure there is no direct connection between its internal system and the Internet pending the establishment of Australian Government approved security measures.
8.3 South Australia - Courts Administration Authority
The Courts Administration Authority of South Australia are proposing to, or are in the process of, testing the following electronic components and relevant information will be input to the electronic appeals project:
1. Electronic downloading of cause lists for legal profession
2. Electronic settling of orders with legal profession
3. Online lodgment (will be instituting online lodgment of minor civil claims) (A subsequent stage of that project will address the electronic funds transfer aspects related to lodgment fees)
4. Integration with case management system (associated with 3 above)
5. Transcript repository (already have in existence a repository of all higher court judgments)
6. Electronic communication with legal profession: - automatic generation and sending of messages via facsimile gateways
- automatic generation of electronic mail messages (to be delivered via the Internet)
7. Evaluation of desktop transcript analysis tools for use by judges and associates
8. Evaluation of transcript checking tools for use by transcript recording service
There are many elements of the future electronic appeal model that could be introduced reasonably quickly into the Appeal Courts to provide immediate benefit from the use of IT and electronic material in appeal cases.
Many of these would involve only a modest investment in IT hardware/software and, as already pointed out, would generally have application elsewhere in the Court environment.
Most courts now store judgments and sometimes ex-tempore judgments and/or sentencing remarks. Ideally, this information should be stored in a central repository so as to be readily accessible for:
• providing judgments in electronic form to the Appeal Court and/or parties for inclusion as part of the electronic appeal book
• access by judges and their staff for research purposes, particularly if the trial court and appeal court form part of the same judicial system
A number of Courts have implemented consolidated judgment databases and these offer a potential basis for providing wider access to material in an electronic form.
Although many courts provide the full text of judgments to separate information services including SCALE, AustLII, Law Book Company Information Services, INFO-ONE, etc. there is often a delay in the material becoming accessible to the court in electronic form. To some extent this would be overcome through each Court providing direct access to an in-house electronic database of their judgments, both reported and unreported (including ex-tempore judgments).
Benefits:
Quicker access to legal research data leading to improved delivery of justice.
The High Court proposes using the Internet to publish the fact that an appeal has been lodged against certain decisions and the grounds which have been cited. This initiative is supported and is especially relevant for High Court matters because of their importance.
With the text of transcript forming a significant portion of the material contained within the paper-based Appeal Book, this represents another area in which immediate action can be taken. Transcript providers should be approached by Courts and/or court administration authorities to establish transcript repositories (where already transcribed to electronic format) for ready access by Courts.
Consideration should also be given as to how this information might be accessed by litigants. Initially, this might take the form of magnetic media but the trend should be towards electronic distribution such as email or providing on-line access for inquiry/down-load. Recognising that most transcription services charge for transcript production, policies will need to be developed to protect the financial viability of the service yet also minimising the cost to litigants, especially if they had previously procured the transcript in relation to the original hearing.
Benefits:
Time saving in the preparation of an appeal and in the decision making stage.
A valuable means of gaining experience in the use of electronic material would be for Courts to request and/or obtain appeals material which already exists in electronic form.
This might include:
• notice of appeal
• grounds of appeal
• response to grounds of appeal
• judgment/order being appealed against
• reasons for judgment order being appealed against
• sentencing remarks
• transcript of previous proceedings
This material might be obtained from the parties, the lower court or transcription service.
Whoever is responsible for preparing the appeal book could be requested to also provide this material in electronic format (eg on floppy disc, CD or directly via email).
Benefits:
• Judges, Judges’ staff, legal representatives and the Courts gain experience in the use of electronic material (eg text searching as part of the research undertaken in the decision making phase)
• Collating all electronic appeal material and storing onto a read-only CD-ROM as the electronic parts of an appeal book
• Electronic sharing of data between parties
• Make more use of judicial support tools e.g.: - text searching
• Where transcript already available in electronic form, provide in this form as part of the appeal book
Similarly, the transcript of the appeal hearing, if required, should be obtained in electronic form for use by the Judge.
Benefits:
• Judge and/or personal staff gain experience in searching transcript electronically
• Speedier decision making
Considerable time would be saved through the judiciary and their staff having direct access to electronic legal research databases and training in their use.
Benefits:
Time saved in researching or looking for particular legal sources
In early 1997 Queensland Law Foundation Technology Services Pty Ltd (QLFTS) was selected by the CCJ to perform a consultancy relating to the feasibility of electronic appeal books.
This project represents an exciting opportunity for the appellate Courts within Australia and New Zealand. The major effort will be to determine a practical model for the preparation and use of an electronic appeal book to replace, whether partially or wholly, the current paper based appeal books where this is beneficial. This vision needs to be clearly defined in terms of best practice initiatives worldwide, technology trends and opportunities, and should also be positioned in the light of a clear cost benefits analysis which takes into account qualitative and quantitative issues.
The consultancy will not specifically focus upon registry case management systems or electronic filing systems except to acknowledge that these systems typically need to interact and be consistent with the “whole of Court” technology environment including the electronic appeal book solution.
The consultancy will include:
1. A Cost Benefit Analysis (Including qualitative and quantitative issues),
2. Standards Guidance,
3. A “Virtual” Appeal Book Model, and
4. Facilitation of Pilot Initiatives.
A Report will be prepared for the CCJ’s consideration in early 1998. Interested parties should contact Ms Joanne Sherman on (07) 3839 9660 or fax (07) 3839 9729. More information on the project can be found at http://www.highcourt.gov.au.
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URL: http://www.austlii.edu.au/au/journals/JlLawInfoSci/1997/16.html