Why is Paper
Still King in King County?
by Larry
Johnson
Even
though the first 20 years of my practice were spent in civil litigation, my
real love since the 1980s was computers, and then, in the 1990s, the emerging
Internet.[1] So in 1995 I gladly accepted
the invitation from Presiding Judge Dale Ramerman and King County Superior
Court Clerk Jan Michaels to join the Steering Committee on Electronic Court
Records.[2] We were going to create the
future of paperless courtrooms!
In 1995
there were only a handful of lawyers who even knew what a PDF file was.
Imagine
my surprise to see what still goes on today
In 1994 I
switched to full-time e-discovery consulting and expert witnessing. I followed
my bliss. My work was chiefly in federal courts around the country. Thus, only
a few months ago did I find myself once again in a King County Superior
Courtroom, reluctantly appearing pro bono as counsel for a relative.
Was that
a surprise. I felt I had entered a time warp. I didn’t realize that every
exhibit intended for use at trial still had to be printed out and put in tabbed
binders, with duplicates to the other side and to the judge.
Yes, even
though the clerk got the PDF electronic versions via the online ECR (Electronic
Court Records) system, as did the judge, paper was still king. And even though
it was indeed almost exclusively the electronic PDF exhibits the judge viewed
on his big computer monitor during the course of the trial.
The
obvious wasteful redundancies didn’t seem to bother either the judge or the
clerk.
The
trial from hell
Apparently
nowadays it is left up to the litigants to set up their own electronic
documents presentation system if there is to be one. Otherwise — despite the
presence of electronic documents in the online ECR system — King County
courtrooms linger in the paper-driven 1980s.[3]
The trial
was over a property division of one asset and a community debt of $100,000
still extant five years post-divorce. The case was on remand from the Court of
Appeals for a trial de novo. Because the judge had a very broad view of what
was relevant, the paper exhibits (almost all printed from electronic
originals!) made for a small Library of Congress. The binders were piled
high on the counsel tables, on the bar before the judge, and on benches in the
public area.
It is
dumbfounding that the King County Superior Court has not fully embraced
electronic documents as trial exhibits in order to replace paper documents
wherever possible.
My trial
had been evaluated by the judge initially assigned to the case to take four
hours, yet it extended instead over ten days, conducted in time segments over a
period of six months.
A
small forest sacrificed
In each
segment, up to an hour or more was spent in the courtroom organizing,
duplicating, hole-punching, putting into binders and entering each document
into a database maintained by the clerk. It took forever. And more time was
wasted at trial every time a witness was asked to testify about a document that
everyone then had to spend a minute or more flipping through binders to locate
.
It was
like an absurd Kafka novel. Literally — as in his novel, The Trial.
Time
to change the entire trial process with modern technologies
Then
something else dawned on me: Why are we still conducting trials in windowless
courtrooms before a robed monarch as if this were still 1719, anyway? More has
transpired since 1995 than the advent of the uniform PDF electronic document
format.[4]
Why, for
example, instead of the usual trial process, couldn’t each side make the trial
a video of all the witness testimony they intend to introduce, along with all
their documentary exhibits in searchable electronic format? Video editing
software is now easy to use and cheap (SmithMicro’s Camtasia for Windows or Mac
is a good example).
The
videos would essentially constitute the bulk of the trial. Pretrial, after both
sides submit their videos and e-documents according to a new court rule, the
judge could then rule on which portions of the videos would be edited out as
irrelevant or otherwise objectionable. Then the process would get a second
phase for limited discovery. Cases in chief would be restricted to the videos.
At trial,
live supplemental testimony would be limited to cross examination and rebuttal,
or for whatever special purpose the judge decides.
The trial
would be mostly “in the can” without all the time that gets wasted in the
current slow, sclerotic process, and the dead time of recesses and lunches
would be removed.
This
proposed process could be a huge timesaver. Abuses no doubt could occur, but
surely no worse so than what we now have.
A
voluntary pilot program could test the concept and work out the kinks.
And there’s
a plus: for a fee, a focus group or groups could view the videoed cases in
chief and their associated documentary evidence, plus any visual aids, and then
give the verdict they would give if they were the jury. Such pretrial viewings
would surely significantly help to promote settlements.
Isn’t it
time we put our imaginations to work to use modern technologies in order to
make the judicial system more efficient, less expensive, and more responsive to
public needs?
# # #
____________________
Larry
Johnson is a lawyer in Newcastle and has been a member of the WSBA since 1974.
He is a past chair of the KCBA Law and Technology Section and founder of
E-Discovery ADR (www.esi-adr.com), serving as expert,
mediator and Special Master in e-discovery matters.
Republished with author Larry Jonhnson's permission.
[1]
Factoid: Outgoing Senator Jeff Flake of Arizona and I had the distinction of
being for a while the only lawyers in the entire world with a web site on the
Internet. We had taught ourselves HTML code and how to create a web site. We
corresponded and congratulated ourselves on how very cool we were.
[2]
For more information about this initiative as it was perceived back then, see
https://www.jstor.org/stable/27976980?seq=1#page_scan_tab_contents.
[3]
By contrast, see the sophisticated and efficient, court-driven electronic documents
presentation system operated by Florida’s Fourth Judicial District, as
described at https://www.jud4.org/Technology.
And of course, the federal courts are light years ahead of our dog-eared King
County courtrooms in just about every respect.
[4]
Which, as an aside, should always be in text-searchable format as required by
the Civil Rules. It is a pernicious practice to produce PDFs that are
intentionally created to be not searchable.
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