News and Views Issue 4: Spring 2002
Courtroom Technology SCAN
Andrew C. L. Sims, QC
Over the past eighteen months, the Alberta Court of Appeal has undertaken a pilot project using totally electronic appeal documents. This article will describe briefly what is involved and how it has worked so far.
Physically, the electronic appeal documents for an appeal involve a CD-Rom, or in a very large appeal, a DVD disk, containing electronic copies of all the documents for use in an appeal. This includes reasons under appeal, pleadings, facta, transcripts, authorities and exhibits all stored together in electronic form on the disk. What is of more significance is that these various documents are all hypertext linked so that, for example, case quotes, exhibits or transcript extracts can be accessed directly from a factum – that is, you can “click” from one document to another and back.
In the courtroom each judge and lawyer looks at the documents using their own computer and copy of the electronic appeal documents rather than having a centrally controlled projector screen.
The Alberta Court of Appeal has required electronic copies of transcripts for several years. In the past it used a product called Smartext for navigation, annotation and searching. When Lotus discontinued that product, the Court searched for a replacement, which led to the broader experiment with totally electronic appeal documents.
The Court wanted a product that used as open and familiar a standard as possible. It also wanted to avoid, if possible, the loss of pagination, page structure and other familiar elements. It recognized that for some counsel, some judges and some circumstances paper copies would still be needed or at least preferred.
After an initial experiment using HTML, the Court opted to use Adobe Acrobat 5.0 for pilot appeals. The program is well known for its use in transmitting formatted documents on the web. It can accept text or graphics from any pc computer program (Windows or Mac). It preserves pagination, type style and format. Any page from the electronic appeal documents can be printed in its original form.
Advantages? – There are several. First, electronic appeal documents are portable with everything you need in one place. Second, it is easy to navigate. Appeals involve constant cross-referencing from one document to another. Having them all hypertext linked makes this more efficient. Third, you can cut and paste from electronic documents into new documents. This is proving increasingly useful for judges whether preparing for a hearing or writing reasons afterwards. Fourth, you can annotate these documents. You can add notes, create your own hypertext links, highlight or do virtually anything else you can do with a paper copy. In fact, several people can each annotate the documents and share their notes with each other. This is useful when working with colleagues or staff.
Cost is an issue. There are savings for litigants with the elimination of multiple copies of appeal books. However, Court Reporters still need to be paid so it is not a total saving. Also, there is a cost to the hypertext linking, much of which must be done manually to be effective. Large firms may be able to produce the CD’s but smaller firms will still need to retain a service provider as is the case with most appeal book production. The savings will increase as electronic exhibits become more commonplace in the trial courts. For the courts the savings are in ease of handling and storing large volumes of material.
Adding authorities into electronic appeal documents can be done straightforwardly. Most authorities are now available in electronic form. However, Acrobat easily handles scanned documents and, using the optical character recognition function, still yields a fully searchable document.
Electronic appeal documents can incorporate a variety of multi-media formats, although the five pilot project appeals in Alberta have not used this technology. For example, video copies of recorded witness testimony can be included and so can computer simulations and similar exhibits. This will become more significant as courts increase the use of video-conferencing and as electronic exhibits become more commonplace. Several of the appeals did include photographic exhibits. However, it has not been the Court’s intention to encourage high-tech presentations. It is a working tool, not Hollywood comes to Courtroom 5!
Some counsel will react with horror to the idea that their courtroom perambulations will be confined because of the need to refer to a computer screen. What, no factum to wave, no law book to read from with a flourish! Experience shows this is less of a burden than one might suspect. Counsel still tend to print out their key documents. However, when it comes to finding the answer to that pointed question from the bench, the most flamboyant counsel is glad to be able to do a quick search, or click on a hypertext link, to retrieve just the right answer.
Some counsel have used Adobe to prepare their own hypertext linked courtroom reference document, with links to the answers to the questions they thought might be asked.
The Court, in its prototype for the pilot project, required one joint set of electronic documents. Much of the efficiency of hypertext linking is lost if each side creates its own electronic argument. It takes a measure of co-operation between counsel to co-ordinate the production of the single product but the result is beneficial to all. An appearance of unevenness may also arise if one side presents electronic documents while the other does not.
There is a learning curve for judges in getting to know Adobe Acrobat. Most master the basics in a matter of an hour or so, but learning some of the program’s less obvious abilities yields rewards. Those with computer or internet experience find it no challenge. While appeal documents are delivered via CD-Rom they are actually loaded on each judge’s office computer, laptop or both, allowing them to make and save their annotations.
By and large the experience of counsel and judges has been positive. The degree of satisfaction clearly increases with the degree of familiarity. As yet, courtrooms equipped for electronic advocacy are scarce, and improved podiums and the like are needed to enhance the experience. Improvement can also be expected as counsel become more accustomed to writing documents that will be read in electronic form.
There are still many issues to be worked out. Allowance has to be made for the unrepresented litigant. Decisions need to be made about just what size or nature of appeal is suitable for presentation in electronic form. Care still needs to be taken to make sure only materials important to the court are included.
The Alberta Court of Appeal is now evaluating the use of electronic appeal documents based on this pilot project. It has since ordered electronic documents in one case and entertained requests from the parties in others. Consultation with the Bar will continue in the hope this technology can help improve the administration of justice in Alberta.
Andrew Sims is a lawyer practicing in Edmonton and principal of the Sims Group, a consulting practice providing advice to courts and tribunals. He will write “Court Technology Scan” as a regular column for our newsletter.