Prospects and problems associated with technological change in appellate courts: envisioning the appeal of the future.

• Author: Magnuson, Eric J.
• Position: Performance-Focused Technology

Because things are the way they are, things will not stay the way they are. (1)

1. INTRODUCTION

   The advancement of technology is notoriously difficult to predict with any precision. It is no small irony that science fiction authors have, in some real ways, driven the advancement of technology (and not the other way around). (2) In the legal world, the advancement of technology has had an enormous impact on the practice of law, how litigation works, and how trial and appellate courts operate. But there is comparatively little science fiction written about the advancement of technology in the courts, perhaps with good reason. Recognizing that void, this article envisions how technology will impact the appeal of the future.

   This article begins with a discussion of the appellate process and technology in appellate courts today. The article then discusses the impact of technology in appellate courts, including some significant, but often-overlooked, changes that technology may have on appeals, including how video recording of trial court proceedings in the record on appeal can change how appeals are considered. The article follows with the case for additional use of technology in appellate courts, including some examples where technology can accomplish things that were impossible in the "paper world." The article concludes with some thoughts about the future of technology in appellate courts.

   By definition, the future is uncertain and this article asks more questions than it answers. Along with creating previously unknown headaches and issues, advances in technology will afford appellate courts opportunities never possible in the paper world or with technology currently used on appeal. How these opportunities develop and what impact they have will turn on the capabilities of new technologies, the affordability and receptivity of new technologies, and the willingness of courts and lawyers to envision how things can be done better using technology (and not just how to replicate electronically what has been done for decades in the paper world).

2. THE APPELLATE PROCESS AND TECHNOLOGY IN APPELLATE COURTS TODAY

   Historically, disappointed litigants in the United States have had the opportunity to seek appellate review by at least two courts: (1) an appeal to a state or federal appellate court and (2) a request for review by the United States Supreme Court. In the federal system, this two-step appellate process has been in place for decades. The same cannot be said for the state court systems.

   Over the past sixty years, many states have added appellate review by an intermediate appellate court. (3) At present, approximately forty states have intermediate appellate courts. (4) In the states, there is more appellate process now than ever before.

   Counting the United States Supreme Court, the federal courts of appeals, state supreme courts, and state intermediate appellate courts, there are more than 100 appellate court systems in the United States. Although each system has its own unique aspects, similarities in appellate processes abound. A common denominator is that each appellate court system involves judicial officers (typically in panels of three or more) reviewing what other judges have done. In doing so, these systems use technology in a variety of different ways.

   Historically, use of technology in appellate courts ranged from none to some. Today, the extremes of technology use in appellate courts are (1) purely paper-based and (2) purely paperless. It is true that, since the advent of the electronic word-processor in the 1960s, no appellate system has been purely paper-based. With that caveat, however, some appellate courts are still largely paper-based, particularly in various state systems. "In the federal system," by contrast, "the paperless court is nearly here. With the maturation of the Public Access to Court Electronic Records (PACER) system, virtually every federal, district, appellate, bankruptcy and other specialty court filing may be electronically accessed by the public, the litigants, and the courts." (5)

   A paperless appellate court implicates the use of technology in three components, only the first of which is particularly evident to the outside world: (1) electronic filing (the external component of technology in appellate courts); (2) electronic case management and processing (the internal, often staff-based or clerk-of-court-based component), and (3) electronic case analysis and resolution (the internal, judge-based component), (6) However, appellate courts differ dramatically in each of these components.

   1. Electronic Filing

      By late 2012, all federal courts of appeals were using electronic filing (e-filing). (7) State appellate courts, however, have been less universal in adopting e-filing. As of January 2010, only eleven states had implemented e-filing for appeals, although several other states had e-filing pilot programs or were considering e-filing for appeals. (8) And undoubtedly some states have adopted appellate e-filing since that date. It is telling, however, that at about the same time that all federal courts of appeals had adopted e-filing, the vast majority of state appellate court systems had not yet done so.

   2. Electronic Case Management and Processing

      Where do e-filings with appellate courts go? Into an electronic case-management and processing system, the second component of a paperless appellate court. "Case management is aimed at improving the primary processes of courts, which is processing filed cases to" final resolution. (9) Electronic case management and processing also involves a variety of other appellate functions. Along with managing appellate briefs, electronic case management and processing can involve electronic transmission of the record on appeal; electronic distribution of orders, notices and minutes; and electronic payment of appellate filing fees. (10) Such technology use frequently decreases the time involved in perfecting the appellate record and resolving the appeal and decreases the costs for all involved.

   3. Electronic Case Analysis and Resolution

      Electronic case-management systems in trial courts are, in many respects, the next generation of judicial technology, designed to allow trial judges to prepare for and preside over hearings and then issue decisions in real time. (11) Both the requirements and the advantages of such a system are profound, particularly for high-volume trial courts in which a judicial officer may hear dozens of different cases each day. But for appellate courts, electronic case analysis and resolution have different functions and meet different needs. A primary need is ready access to the appellate briefs and filings as well as the trial court record. In addition, a helpful electronic case-analysis-and-resolution system will allow for word searching of documents, will link factual sources cited in briefs or draft decisions to source documents, and will link legal citations in briefs or draft decisions to the actual cases, statutes, or other authorities cited.

3. THE IMPACT OF TECHNOLOGY IN APPELLATE COURTS

   Appellate court technology can have profound effects (both positive and negative) in a variety of different ways. An examination of cases discussing technology issues demonstrates some anticipated uses and consequences of technology, some unexpected uses and consequences, and some potentially troubling uses and consequences.

   1. Processing Appeals

      In the federal system, some cases reveal a novel use of electronic case-management systems that only technology would allow. For example, the Third Circuit addressed a request by a pro se litigant that his case be assigned to a different trial judge by noting that "the District Court's electronic case management system reflects that [the litigant] has initiated over two dozen suits in the past eight years, several of which were assigned to [the same judge]." (12) Although this is perhaps an unintended use of the electronic case-management system, other courts have made comparable use of such technology. (13)

      Courts also have relied upon electronic case-management systems as evidence of receipt of a filing by all involved, even when the filing is not accompanied by a certificate of service. (14) One court even rejected a plaintiffs claim that she had not been served, noting plaintiffs statements in making the claim showed that she

      would have had to access the court's electronic case filing and electronic case-management system to know that defendant filed a certificate of service with its motion and brief. Such access defeats any argument that plaintiff did not have access to the appropriate materials in order to formulate an appropriate response/brief in opposition. (15) Particularly for questions of service, an electronic case-management system allows at least the appearance of precision about whether (and when) a party was served with a filing or order (or at very least when the party had access to such documents). (16)

   2. Enhanced Transparency

      For voluminous or otherwise complicated matters, use of the case-management system allows for added clarity in the record. For example, to avoid ambiguity, courts have cited page numbers "assigned by the court's electronic case management system and not those assigned by the parties." (17) Courts also have noted limitations of, and mistakes in, electronic case-management-system designations. (18) By contrast, another court noted that it had "consulted] its own electronic Case Management docketing system," which showed prior litigation involving the same topic, adding that "[t]he record of a court's own proceedings is a source whose accuracy cannot reasonably be questioned." (19) Other courts have touched on the limitations of these electronic systems and expressed frustration, apparently developed through experience, caused by the transition to electronic case management: "[T]he court is sympathetic to the difficulties many attorneys and...