Wisconsin's Voyage to Computerized Courts
By R. Timothy Muth & Colleen D.
Ball
The three branches of Wisconsin government cannot agree on how best
to finance the automation of Wisconsin's courts. This article traces the
judicial branch's early steps toward computerization, through its
impasse with the Legislature over funding, to the possibilities for the
courthouse of the future.
The "space" age
Think back to the time before computers. Imagine if every pleading or
letter that you created was prepared on a typewriter. What if all the
research used to support a 50-page brief were done by hand - without the
aid of Westlaw, Lexis or the Wisconsin Statutes on CD-ROM? Suppose
thousands of documents generated each year by your firm were placed in
files and crammed into an already overstuffed, unexpandable storage
room. Now pretend that your firm tripled its annual production of
documents without enlarging its storage facilities. You would be adrift
in a galaxy of paper called "out of space."
Today's computerized lawyer can print out pleadings and briefs faster
than a court can file-stamp them. To defend against the onslaught of
paper, the judicial branch hopes to harness computer automation for
filing, record management and retrieval, legal research and countless
other uses.
Some Wisconsin circuit courts contend with this situation every day.
Take Milwaukee County, for example, which only recently began to use
computers. According to the Court Records Center manager, each day "a
foot or more of paper for filing accumulates," and 300 private-sector
people make inquiries requiring file retrieval. 1 Records are stored in several rooms on different
levels making it enormously difficult to retrieve files. Meanwhile the
storage rooms themselves "suffer from lack of adequate space,
insufficient load-bearing capacity, physical hazards to the staff and
significant rodent and cockroach infestation." 2
Computer literate lawyers doubtless are shocked to learn of these
conditions. They still have paper files, but in the time it takes a
secretary to find them, an attorney can retrieve and print dozens of
documents with a few clicks of the mouse. In fact, each day computers
allow more lawyers to flood more courts with more paper before a judge
can even set a briefing schedule.
If Wisconsin courts retain antediluvian information management
systems, it is not because the judicial branch fears technology. Judges
realize that computers can help stem the tide of paper in Wisconsin's
courthouses. Thus, in 1989 Wisconsin's judicial branch approached the
Legislature about funding a system that would help courts manage
information efficiently, economically and safely.
The quest for computers
At the judicial branch's request, the 1989 Executive Budget Act
included a continuing appropriation from court filing fees to finance
automated information systems for Wisconsin courts. The proposal is
called the Circuit Court Automation
Project (CCAP), and its initial goal is to facilitate case, jury and
financial management for Wisconsin courts. It will create a network
among the state's circuit courts and allow them to process their cases
consistently.
The appropriation was codified at section 20.680(j) of the Wisconsin
Statutes, and this is how it works. The Wisconsin Statutes require
litigants to pay filing fees in civil actions. According to Wis. Stat.
section 814.635(1)(1991), $3 of every filing fee is earmarked to pay for
court automation. These fees are collected and deposited into the
state's general fund, where the appropriate portion is allocated to a
special account used to finance court automation. 3
From 1989 to 1993 the court automation account accumulated nearly $5
million. But then the Legislature passed 1993 Wisconsin Act 16 §
9253 of the 1993 Biennium, which "lapsed" or diverted almost $3 million
from the court automation account to the state's general fund. 4 The reason? According to Cynthia Archer, an
executive policy and budget officer for the Department of
Administration, the courts did not need $5 million to implement and
support CCAP as it was originally envisioned. 5 Though CCAP was not yet fully implemented, judges
already were angling for "enhancements" such as compact disks, fax
boards and public access terminals. Thus, Gov. Thompson's proposed
budget for the 1993-95 biennium included funding for only "core
components" of CCAP. The extra $3 million would be used to offset such
justice-system costs as establishing new circuit courts, paying court
interpreters, creating another appellate judgeship and providing
district attorney salaries. 6 In addition,
the funding mechanism was changed so that the lapsing of unspent court
automation funds would become an annual event. The Wisconsin Legislature
ultimately approved this budget plan along with the new lapsing
mechanism. 7 With passage of the Act, the
state's general fund gained a hefty $3 million.
The fight for funding
Members of the judicial branch did not take kindly to this
reallocation of court automation funds.
If only on principle, sections 20.680(j) and 814.635 allowed for a
portion of certain filing fees to finance court automation - and nothing
else. The 1993 Biennium trumpeted the Governor's (and the Legislature's)
power to use that money for purposes unrelated to automation.
The circuit courts were counting on this money. Those that chose to
participate in CCAP found that the lapsing prevented logical,
cost-effective purchasing. According to former Chief Justice Heffernan,
money had been accumulating in the automation account so that the
judicial branch could purchase many machines at the best possible price.
The goal was to have all counties use similar computers and to update
workstations consistently with compatible hardware and software. 8 The $3 million lapse also prevented CCAP
coordinators from replacing aging computer infrastructure such as
personal computers, monitors and servers.
Circuit court automation found a champion in Judge Dennis Flynn of
the Racine County Circuit Court. On March 28, 1995, Judge Flynn filed a
class action lawsuit against the Department of Administration on behalf
of all citizen users of the Wisconsin court system. Judge Flynn asked
the Dane County Circuit Court to declare that the lapse effected by
section 9253 of the 1993 Biennium was unlawful because it: 1) defied the
budget management rules set forth in Chapter 20 of the Wisconsin
Statutes; 2) violated the doctrine of separation of powers; and 3)
constituted a misuse of tax funds that had been collected specifically
for court automation. 9 Eventually, both
Judge Flynn and the Department filed cross motions for summary judgment
before Judge Mark Frankel of the Dane County Circuit Court. In an
exhaustive memorandum decision, Judge Frankel stated that section 9253
smacked of "legislative legerdemain," and, deciding the case on public
policy grounds, ruled:
"[I]n a state that prides itself on principles of open government,
fundamental public policy prohibits our legislature from taxing the
public for a specific purpose, passing a continuing appropriation to
fund the accomplishment of that purpose, and then later transferring
those accumulated monies to the general fund of the state without either
repealing the continuing appropriation or accomplishing the public
purpose for which the money was taxed and appropriated." 10
The Department of Administration appealed Judge Frankel's decision,
and the case is pending in the Wisconsin Supreme Court.
The future is here
Regardless of how the supreme court resolves the lapsing issue, the
fact remains that Wisconsin courts must embrace automation if only to
keep pace with the computerized lawyer. Automation is not just a
buzzword - it already exists in many forms in many courts around the
country. Here is a small sampling of the technologies employed
nationwide that - with a bit of luck and adequate funding - may soon
appear at a courthouse near you.
Paperless trials
You may have read about paperless trials in a bar journal or watched
one live in Judge Barbara Crabb's courtroom in the Western District of
Wisconsin. The fabled paperless trial is commonplace in many courts
today, and this is how it operates. Lawyers do not prove their cases
with papers, easels and "blown-up" exhibits. They now direct their case
on television screens watched by the judge and jury. They still use live
witnesses, but evidence is stored on a compact disk and displayed to
everyone in the courtroom on monitor screens, while the witness is
testifying. The examining attorney can then enlarge a portion of a
photograph or use an electronic pen to highlight text from an agreement.
Suppose a witness gives an answer that strays from the deposition
testimony. Click! Within seconds the examining attorney can make the
original answer appear on screen right next to the contradictory trial
testimony. What if the attorney wants to show a videotape of a severely
injured plaintiff playing tackle football? Click! The judge and jury can
watch the video clip on their monitors.
There are countless advantages to a paperless trial. It is cheaper.
It eliminates "blow-ups," easels, overhead projectors and endless
copying. It reduces distractions - such as paper shuffling - and keeps
the judge and the jury focused on the screen, where the evidence is
playing. It is also easy to use - even for those who fear computers.
Judge Carl Rubin from the Southern District of Ohio is a self-confessed
computer illiterate. He has no idea how the scanner, monitor and
computers in his courtroom operate or integrate. Nevertheless, he
routinely conducts paperless trials and has declared, "I have seen the
future, and it works." 11
Auto clerks
You use an automated teller machine to conduct routine banking
transactions. Now think of how many routine transactions court clerks
process every day. They accept payment for traffic tickets, dispense
information about small claims court, enter not guilty pleas and accept
filings for uncontested divorces. The same interactive computer software
that allows you to withdraw $20 from your savings account enables you to
take care of certain legal matters - at least in California and Arizona.
Courts in those states have "auto clerk" kiosks that can process
payments and produce forms for forcible detainers, divorces and child
support payments. They can answer questions - in English or Spanish.
They are prompt, patient, polite and efficient. They do not discriminate
by race, gender or social status. And best of all, they never have a bad
day. 12
Electronic filing and recordkeeping
Imagine a lawyer working late at night putting the finishing touches
on a set of pleadings. A few more clicks of the mouse and the document
is on file with the court. 13
This is not possible in Wisconsin, but it is a routine event in some
other courts. In Delaware, for instance, in 1991 courts mandated that
attorneys file all documents in asbestos actions and complex insurance
cases by modem. Since then, more than 25,000 documents have been filed
electronically. The system permits lawyers to file lawsuits and retrieve
documents without leaving their offices. It enables judges to copy and
paste from briefs and other documents when preparing opinions. 14
A similar system used for motor vehicle and foreclosure cases in
Prince George's County, Maryland, also offers automatic date-stamps on
documents and electronic fund transfers. 15At the federal level, courts recently amended
procedure rules to permit electronic filing in appellate, district and
bankruptcy courts. 16
Of course, electronic filing works best if the court has an
electronic record management system. Like Wisconsin, other states are
striving to develop this ability. An Alabama court, for example, stores
documents on disks, and just one disk can hold a year's worth of
records. The court no longer needs to retain and store originals,
thereby freeing courthouse space for other uses. Record retrieval that
previously took hours or days is now "accomplished in minutes with a few
keystrokes."17
The Bankruptcy Court for the Southern District of New York has
pioneered "the use of the World Wide Web for providing docket listings,
and access to copies of documents filed with the court." 18Still more ingenious, the court's dockets are
created automatically when users complete a set of computer screens.
Judges and the parties have access to case management reports, case and
judicial calendars, financial reports and motion tracking listings.
19
Electronic file management is faster, easier and more efficient - and
it is more prudent, too. In 1993 a district justice office in
Pennsylvania was fire-bombed and many records were destroyed. 20Fortunately, the court possessed a computerized
filing system, which enabled it to rebuild all of the necessary files in
a matter of hours.
CD-ROM briefs
Of all documents prepared by lawyers, briefs are accused most often
of killing forests. From early drafts through service and filing, briefs
devour reams of paper. Yet, even briefs cannot escape the tentacles of
technology. Some courts across the country have begun to accept CD-ROM
briefs - an electronic version of a paper brief with links to published
cases, statutes, transcripts, photographs, videotapes and any other
authority or evidence that can be stored on a compact disk. 21
R. Timothy Muth is a shareholder at
Reinhart, Boerner, Van Deuren, Norris & Rieselbach's Milwaukee
office, where he chairs the firm's Computer & Technology Law
Practice Group.
Colleen D. Ball is an associate at the
firm's Milwaukee office, where she assists with computer litigation and
chairs the firm's Appellate Practice Group.
Both can be found on the World Wide Web. Both authors were
counsel to the Milwaukee Bar Association which filed an amicus brief in
the Flynn litigation.
A CD-ROM brief allows the reader to move between the text of the
brief and citations to legal authorities or the trial record with the
click of a button. A judge pulls up the CD-ROM brief on a computer
screen. As she reads, the judge may see a citation to an interesting
case that she would like to skim - even though she is reading on her
laptop at home, far from the bound volumes of the Wisconsin
Digest in the courthouse library. She merely clicks on the citation
to Vosberg v. Putney, and the entire case appears instantly for
her review. Or maybe the judge wonders just how accurately the brief has
paraphrased the defendant's trial testimony. Click! She can see the
transcript for herself. Perhaps the judge would like to view the
"inflammatory" videotape that allegedly prejudiced the jury. She can
watch that, too, on her computer screen while she is reading the
brief.
The advantages of CD-ROM briefs are readily apparent. They require
little space; they are portable; and the user can even print hypertext
documents while viewing them. 22 They are
particularly useful in complex cases and appeals. For that reason, the
U.S. Court of Appeals for the Federal Circuit (which handles numerous
patent cases) and the U.S. Supreme Court already have accepted briefs on
CD-ROM, and many federal courts are drafting guidelines for the
preparation and filing of these so-called "cyberbriefs."
Conclusion
For some, the journey to the courthouse of the future is all but
over. Funding fights have prevented Wisconsin from making the voyage at
warp speed, but it is well on its way. Hopefully, Wisconsin's
computerized lawyers will soon find a virtual welcome mat at the
courthouse of the future.
Endnotes
1 Milwaukee County Judicial System
Study, March 31, 1994, at II-36.
2 In re Judicial Fact
Finding, ¶ 51, Case No. 90-CV-14944, Feb. 8, 1993.
3 Flynn v. Dept. of
Administration, Case No. 95-CV-805, slip op. at 4 (Dane County
Circuit Court, April 23, 1996).
4 Id.
5 Affidavit of Cynthia Archer at
¶ 2, dated Dec. 8, 1995, filed in Flynn v. Dept. of
Administration, Case No. 95-CV-805 (Dane County Circuit Court).
6 Id. at ¶ 4, Exhibit
A (Letter of May 3, 1993, from Gov. Thompson to Washington County
Register in Probate Kristine Deiss explaining the governor's 1993-95
CCAP appropriations request).
7 Flynn at 5.
8 Affidavit of Nathan S. Heffernan
at ¶¶ 3-4, dated Dec. 7, 1995, filed in Flynn v. Dept. of
Administration, Case No. 95-CV-805 (Dane County Circuit Court).
9 Flynn at 2-3.
10 Flynn at 29.
11 D. Wong, Judge Rubin on
How to Run an Automated Courtroom, Computer Counsel at 22 (Sept.
1993).
12 Interactive Computer Helps
Arizona Court Users, 78 Judicature 158 (1994); L. Weiss & J.
Weaver, ATMs Bring the Court to You, 32 No. 3 Judges' J. at 57
(Summer 1993).
13 A. Jacobius, Two More
Courts Add Electronic Filing, ABA J. at 20 (Sept. 1995).
14 Id.
15 Id.
16 F.R.C.P. 5; F.R.A.P. 25;
F.R.B.P. 5005.
17 Electronic Filing System
Helps Manage Alabama Court Records, Lawyer's PC at 6, 7 (Aug. 15,
1995).
18 Email letter from Bill Kammer,
Gray Cary Ware & Freidenrich, San Diego, Calif. (Feb. 11, 1997) (on
file with NET-LAWYERS@eva.dc.lsoft.com; re Electronic filing in federal
courts).
19 Email letter from M. Sean
Fosmire, Marquette, Mich. (Feb. 14, 1997) (on file with
NET-LAWYERS@eva.dc.lsoft.com; re Update to Courts.net page re
SDNY-BK).
20 S. Willoughby, Automating
and Linking Pennsylvania's District Justice Courts: A Success
Story, Judge's J. at 30 (Summer 1993).
21 T. Newman & S. Ahmuty,
CD-ROM Briefs, 218 N.Y.L.J. (Sept. 3, 1997).
22Id.
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