At issue in the GasTOPS trial was the development and sale of a software program for the computerized maintain of jet engines and aircraft. The benefits of a Computerized Maintenance Management System are that it reduces maintenance mistakes while at the same time reducing labour costs.
When I fly on an airplane or ride on a train I am encouraged to buy my ticket online. I recently was at my family doctors office and instead of a thick file of handwritten notes covering 35 years of attendances, test results and prescriptions, she brought up my file on a monitor in her office. She is a member of a small clinic which has found it advantageous to go paperless by scanning all reports received into the file. She now types her notes into the file which can be searched at a later date. Also the computer prints out the prescription and for the first time in my life I can read what drug I am being prescribed and feel confident that the pharmacist is not guessing at what an illegible scrawl really means.
My dentist has a similar system wherein all information concerning my remaining teeth including ex-rays are stored in a software program. He has the ability to access such information from this office, examining room or from home. His computer programs bills my dental insurance company online and within two days an electronic deposit is made into my bank account and I receive an e-mail advising me of the deposit.
Today my furnace and electronic air exchanger received their annual inspection and when the technician gave them a clean bill of health he produced a handheld computer device and imputed what he had done. The handheld device then printed bill of what he had done and to my horror how much of my money he had spent.
Yesterday FedEx arrived at our door with a parcel and the driver produced a handheld device for me to sign to acknowledge receipt of the package.
We live and function in an electronic world. We bank on-line; we purchase goods and services on-line and pay for them electronically. All of the recent reports indicate that electronic books are making great inroads into the book market. When I travel to Mexico for an extended period of time I purchase a number of electronic bestseller at about half the price of hardcopy books, put them on my Sony Reader and go off to Mexico with a library of over 45 full length novels. If I was prepared to risk the wrath of “she who must be obeyed” I could put pdf. legal files on my Reader for review in Mexico.
Businesses, banks, government services, doctors, hospitals, dentists etc. are converting to an electronic environment as it is more efficient and less expensive.
It would seem to me that law offices whether big or small, rural or urban could reduce their expenses and thereby reduce the fees they charge their clients by going paperless and using an electronic litigation support program. In an electronic environment:
- Electronic documents whether in native digital format or scanned into an electronic document are filed in litigation support program where each is identified by date, author, issue, person who can prove and any other identification;
- Documents can be electronically sorted for disclosure, discovery and trial;
- Documents can be accessed anywhere counsel’s laptop can connect to the firm network;
As well, an electronic environment can lead to:
- Reduced photocopying charges;
- Reduced office space;
- Reduced support staff; and
- Reduced storage costs.
These potential costs savings should result in fewer billable hours preparing for disclosure, motions, discoveries and trial. If billable hours can be reduced without comprising preparation then Access to Justice should improve.
Last week I received a telephone message from a lawyer in a small county town asking for my help in correcting a mistake in a consent Order I signed in his town when on circuit. I sent him an e-mail explaining the steps he should take to amend the order. After receiving, signing and returning the Amended Order I received an e-mail which stated in part: "I have never received an email from a Judge before." It speaks volumes about how the world has changed, and with it, the vehicles through which access to justice is now available.
From my observations the legal profession has been slow to fully convert to an electronic environment. Over 98% of all documents created in a law office or used in the litigation are initially created in an electronic format and yet lawyers when they appear in court invariably decide to plead their client’s case in a paper environment.
Litigants who I have talked to concerning their experience in the litigation process have on more than one occasion said to me when referring to the mountains of paper generated by their lawsuit and the costs of the action:
“My lawyer asked me to send him all of banking records, invoices and e-mails which I did on a DVD and the first thing my lawyer did was print the documents and billed me 25 cents a page and the time of his paralegal at $125.00 per hour.”
“We carry on business in an electronic world.”
“We bank, pay bills and make purchases on-line.”
“We had to learn how to carry on our lives and businesses in an electronic world.”
“Why should we be required to incur the additional cost of converting to paper in order to access the justice system.”
“It’s time judges and lawyers learned how to work in an electronic world.”
Many lawyers and judges appear to take the position that electronic technology in the litigation process is best suited for the large document cases which usually come before the court in large urban areas and are handled by lawyers from large legal firms with IT departments. It is true that electronic technology is invaluable in the large document cases, but it is also cost effective in smaller actions in urban and rural areas. It is the individual middle class litigant who as a result of increasing legal fees does not have Access to Justice. Large corporate clients in large documents are not usually denied Access to Justice as a result of legal fees.
From my vantage point as a trial judge I have the impression that litigation counsel continue to conduct their litigation files from day one in a paper environment because:
- Tradition expects it;
- They have been trained in a paper environment;
- It is time consuming to learn how to manage and present their case in an electronic format;
- It is expensive to purchase computers and litigation support programs;
- The Rules of Practice do not yet fully allow for electronic litigation;
- Counsel does not know when a file is opened for the first time if the judge hearing the motions and/or trial will allow counsel to proceed in an electronic environment to the exclusion of paper.
Having been away from the practice of law for 22 years there may be considerations and reasons which I am unaware of which would militate against going paperless. I would welcome your comments on the suggestion that law offices and courtrooms should start down the path of going paperless in order to improve Access to Justice.