Wisconsin's Voyage to Computerized Courts

• CCAP is Making Headway
• Model Rules for Electronic Filing in the Works

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."

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

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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