Before entering the courtroom, counsel relies on a court’s technology to electronically file and serve documents and obtain court records. Once inside the courtroom, counsel, judges, and court staff rely on the court’s technology when attending and participating in proceedings, such as hearings, trials, conferences, and other events, that are increasingly held remotely. Counsel must also leverage the court’s infrastructure — such as document storage and transfer — to use exhibits and other materials during a proceeding.

I recently moderated a bar association panel, comprised of state court judges, on how best to use existing technology in state court proceedings. There were several key considerations that the panel discussed that merit further exploration.

Does the court have compatible systems for electronic filing and case record management?

Electronic filing, while convenient, creates an element of uncertainty until counsel can identify a filing as accepted on the court docket, an uncertainty complicated by the risk of a technical issue with a submission. Counsel must be able to promptly determine from the court docket whether the court processed an electronic submission, or if not, they must be able to refile if necessary. Any delay in making this determination creates a risk that counsel misses a filing deadline.

Judges must also be able to access directly all electronically filed documents. Absent this access, judges run the risk of overlooking a key document or exhibit filed by counsel.

As a result, courts must use a comprehensive system that combines the convenience of electronic filing with real-time access to the court’s records. A court should use a single case management and electronic filing system; or, if that is unavailable, courts should integrate their existing electronic filing and court records systems. Otherwise, the risks of an error exist, and counsel may opt to file in paper format (unless mandatory) to minimize potential filing issues.

Can counsel digitally submit materials in any format?

Court electronic filing systems typically require that counsel use PDF format to electronically file materials and to limit file sizes. However, PDF format is not always available for digital evidence because of the size or format of the material involved. For example, electronic filing systems often do not accept photographs, emails, text messages, and audio or video recordings in original format.

Counsel must determine in advance the best way and timing for electronically submitting materials to ensure proper consideration by the court. This requires counsel to inquire whether they can file materials using a thumb drive, CD, shared cloud drive, or other means. Counsel must also determine whether the court has compatible software or applications to access materials using counsel’s preferred file format and, if appropriate, to copy and edit materials. In turn, courts should have the latest software and applications to review, access, and use electronic submissions.

Even when a document is electronically submitted, is it accessible as counsel intended?

Counsel must understand in advance what happens to documents and other materials after filing them with the court. For example, counsel should understand the court’s capabilities for whether documents retain color features after electronic filing and if the court can print any or all copies in color. If counsel electronically file lengthy documents or multiple related documents, counsel should understand how the documents appear to the court (such as linking related documents and numbering pages).

Counsel often lacks the ability to preview documents, using a court’s electronic filing system, and see how their submissions will appear to the judge and court staff. To minimize these issues, counsel may need to provide courtesy copies of filed materials where color is relevant and independently mark page numbers of exhibits and other associated materials to ensure that a filing is complete and reviewable as intended.

Counsel should survey the courtroom in advance to determine the available equipment and technology features. This is particularly important before trial, where counsel often must use exhibits and other materials to convince a judge or jury. Even as courts adapt to use electronic methods, their physical facilities can lag. Courtrooms do not always have sufficient existing equipment or capabilities, such as ample or nearby electrical outlets, display monitors, computer cables, or wireless internet access. The construction or location of some courtrooms may interfere with a cell phone signal to contact others or access the internet.

As a result, counsel must understand whether and how to address any shortcomings and develop a backup plan. For example, counsel must bring necessary equipment, such as power strips, cables, or a mobile hotspot. Counsel should also account for using traditional ways to present evidence, such as a whiteboard or using oversized paper versions of exhibits, especially if internet access is unavailable or unreliable or the courtroom lacks monitors.

Many courts adapted to the pandemic by using videoconferencing to conduct a fully or partially remote proceeding. While a court may use a videoconferencing platform, this requires reliance on the court’s existing infrastructure, which can present challenges unless the court has upgraded that infrastructure.

Counsel must determine in advance whether the court’s technology places them at a disadvantage with a complex remote proceeding, such as a trial. For example, the court’s videoconferencing platform may need to accommodate multiple participants (such as parties and witnesses), display sophisticated exhibits (such as high-resolution documents, videos, or simulations), and provide or sync to a means for recording the proceeding. This also may require the court, as a host, to have enough bandwidth to hold the proceeding and place sufficient cameras and audio equipment inside the courtroom to avoid putting any remote participants at a disadvantage. Otherwise, counsel may need to have any complex proceeding held in person.

Source: Reuters

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