February 2003

Behind the Technology Curve: Affordable Solutions for Lawyers without Lots of Money

by Thad M. Guyer

Technological innovation super-cedes and overwhelms cultural and personal preferences in law- office systems. Most lawyers are dragged to the new technology, then fall behind the steep learning curves, which minimizes their adaptability to the next wave of technological innovation. Sole practitioners and small firms with high spirits and low incomes may be at greatest risk.

More affluent law firms cope with the technology-curve dynamic by hiring support staff, if not technology employees, to stay on top of the curve. Courts and defense firms are at the leading edge of technological innovation and high-momentum deployment. The Administrative Office of the U.S. Courts has implemented Public Access to Court Electronic Records (PACER)1 and Case Management/Electronic Case Filing (CM/ECF),2 first in Oregon and Florida, now in 10 federal courts and approximately 50 state and bankruptcy courts. Large defense firms are at the forefront of "electronic trials" (DOAR Systems).3 If the small firm feels intimidated in the courtroom, it is with good reason.

To function in these electronic environments, acquisition of considerable computer knowledge is becoming a practice necessity for sole practitioners and small firms. For the technocapable firm, these law-office and courtroom media offer expanded opportunity; for all others, the same media loom as barriers to court access. Since sole practitioners and small-firm lawyers may well be unable to hire staff with high-tech inclination, it is increasingly for lawyers themselves to understand the nature of fast-approaching technological challenges, and find solutions.

This is not to say that lawyers must understand how to use all the hardware, software and Web applications available. But it is to say that, like reading advance sheets or legal literature, lawyers who can't afford to pay someone else need to keep up with the court and law-office technology curve. The more hands-on time you put into technology, the more you will be able to cope when the milieu changes from the voluntary to the mandated.

I have been a sole practitioner and small-firm member for the last 24 years, and I have never been able to afford or retain technologically sophisticated staff. Instead, I have made it my role to teach new technologies to my staff when I can, and to learn it myself when I can't. Like telling the scrivener that he had to learn to use the typewriter rather than handwriting motions in the early 1900s, often staff do not embrace technological innovation because it adds difficult learning to their existing workloads. Fax machines were embraced as fun and easy, but transitioning to Windows or Mac from DOS was not. Learning how to convert scanned documents to Adobe PDF images, and to "distill" or "paper capture" them for maximum use, will not happen in many small law offices unless you make it happen. The hardware, software and net applications used in my office are technologies I have learned before teaching them to my staff, and I am 52 years old. With each acquired skill, the easier it becomes to learn the next technological competence. (Note: The products I reference in the footnotes are not necessarily better than competing products.)

CM/ECF: In January 1996, the Administrative Office of the U.S. Courts began development of the Case Management/Electronic Case Filing (CM/ECF) system, a comprehensive case-management system that will allow courts to maintain electronic case files, offer electronic filing, and make all case information available immediately through the Internet. Eventually, CM/ECF will replace the current case-management systems used by federal courts; federal and state agency forums will not be far behind.

There are a number of significant benefits and features to look forward to:

• Courts will allow registered attorneys to file documents 24 hours a day, seven days a week.

• Paper, photocopy, postage and courier costs will be reduced.

• Full case information will be available immediately to attorneys, parties and the general public. This includes the ability to view the full text of all filed documents.

• Attorneys on the system will receive e-mail notices in CM/ECF cases, greatly speeding delivery, and eliminating costs of handling and mailing paper notices to courts and attorneys.

• Multiple parties will view the same case files simultaneously.

• Since CM/ECF uses Internet-standard software, the out-of-pocket cost of participation for attorneys will be typically very low.

PACER is an electronic public-access service that allows users to obtain case and docket information from federal appellate, district and bankruptcy courts, and from the U.S. party/case index. Currently, most federal courts are available on the Internet to at least a minimal extent. Those few federal courts that are not available must be dialed directly using communication software (such as ProComm Plus, pcAnywhere or Hyperterminal) and a modem. Internet access is available for most federal courts by registering with the PACER Service Center (see http://pacer.uscourts.gov/), the judiciary's centralized registration, billing, and technical-support center. Each court maintains its own databases with case information.

DOAR is the primary provider of the advanced technology-based litigation support system used in federal and state courtrooms. DOAR provides integrated technology for automating evidence presentation and courtroom communications. In a rapidly increasing number of federal and state courtrooms, this technology is being installed to allow high-tech persuasion power, but the reality is that this power is available only for a new generation of litigators who exert the effort to learn the technology. The system provides comprehensive multifunction support for all aspects of evidence display, complete with multiple digital and video inputs and up to 14 display outputs. Functions currently include:

• A computer interface.

• Two-way color screen markers, which allow you and the witness to interact on the same screen display, exhibit, photograph or pleading. The witness can draw or highlight on a monitor, and you may do the same on a drawing board or from your own computer program.

• An exhibit and photo projector, very similar to overhead projectors, but instead of projecting on a movie screen or wall, the receiving medium is a computer monitor.

• A VCR integrated into the system. However, if your computer has CD, DVD or other video capability, you can use it to show video and photographic clips.

Some systems include a video-conferencing component that allows the remote appearance and cross-examination of live witnesses. The system can connect directly to ISDN (Internet line) in the courtroom or in a conference room. These electronic courtrooms are normally operated by means of a simple remote-control system that supports a multiplicity of evidence-presentation systems and software. Using the judge override switch, the bench retains total control of the electronic display prior to its presentation to the jury.

Because federal adjudicative agencies such as the Department of Labor and Merit System Protection Board normally hold hearings in federal courthouses, there will be increasing opportunities or requirements for administrative-law lawyers to use the DOAR system.

The reduction and elimination of unnecessary law-office paper is not only an end in itself, but is at the core of cost-effective case-file management. This approach can include the following methods, equipment and computer applications:

• "Electronic only" word-processed and other computer-generated documents may be maintained in electronic form only, and printed as needed.

• Scanner/photocopiers are replacing mere photocopiers. These are still fully performing photocopy functions, but the images are printed on paper only as needed. On a leased basis, these machines can be installed for approximately the same monthly payments as traditional photocopiers. Whether printed or not, these sheet-fed scanner/photocopiers scan documents at 30 or more pages per minute. The machines have an onboard computer that converts the images to PDF, TIFF or other formats, and routes them to your computer or server.4 

• Net file storage allows all electronic files to be stored on secure Web-based servers, rather than on CD-ROM or DVD disks and remote hard drives only. There are numerous inexpensive "Net storage" services that allow drag-and-drop uploads and downloads for firm computers. File folders can be individually password-protected to allow lawyers or clients to access files from any computer.5

• Reciprocity protocols are one of the simplest means to reduce paper by agreeing with adverse counsel that pleadings, motions and briefs will be sent to each other as e-mail attachments when filed. Most lawyers will readily agree to this reciprocity.

The world of law-office computer communications, known as "telephony," has two key components: in-office software and Web-based applications. The future of all end-user computing is said to be in Web-based applications, where users don't own or even possess the "software" but use it via HTML and other Web-browser interfaces. Web users need not purchase software updates. Communications and faxing via the Internet have become inexpensive, versatile and effective. There are several kinds of Web-based telephony:

• IP phones are supplementing and, in some firms, even replacing traditional analog and digital phone lines. These "Internet phones" plug into the USB or analog ports of your computer and use the same DSL or cable line used for Internet and e-mail access.6 Numerous Web companies now provide the Web-based "call" applications at no monthly cost, and the user pays as little as two cents per minute anywhere in the United States, and seven cents per minute for international calls. Sound quality and performance are 90 to 100 percent of landline quality.7 

• Conference-call Web applications allow law offices to avoid the high cost and inconvenience of operator-assisted or line-hogging methods. The conferencing Web application places calls through traditional phones, but allows the originator to manage the call with a "call center" screen pop-up mouse. These calls cost as little as 10 cents per minute per participant, including phone charges, and allow up to 10 participants from anywhere in the country.7 Imagine a conference call with five lawyers costing only 50 cents per minute.

• Fax sending and receiving Web-based services allow you to fax any document from your computer, and to receive faxes in your e-mail box fully viewable on your computer screen. Documents that you did not produce, such as exhibits, are simply scanned for sending. You can then file these faxes in client folders on your computer.8 

• "Messaging" and "chat" are no longer for recreation only, but are becoming serious business and law-office telephony. These are free text-, voice- and video-communication applications that allow individuals and groups to interact on your desktop while you perform other functions, such as word processing or legal research. These services indicate who is available at their computer for the quick question, the insider comment or important conference.9 

• Telephone e-mail and voice-mail reply are excellent tools when you can't be near your computer. These low-cost, Web-based services allow you to call a toll-free number and prompt an electronic voice to read your e-mail (and even fax subject lines) to you. You can then reply by dictating a voice message into your phone that will be sent as a voice file to the originating e-mail account, where the recipient can listen to it on headphones, speakers or IP phone.10 

Free Web-based applications and sites are available for several other critical and common lawyer functions, including date reminders and calendaring, legal research and lawyer directories.

Web-calendaring applications are now far more than simply another place to enter appointments and due dates. These applications will automatically send e-mail notifications each day, and throughout the day, to remind you of appointments, events and tasks. These applications have two major advantages. First, the date reminder e-mail can be sent to you, your associates or assistants, and to other e-mail addresses you may be using, such as your home account. You can also give password access to others who are authorized to check or make entries or edits to your calendar. Secondly, these online calendars are available from any computer, for example, from the computer of a judge's assistant when you are unexpectedly resetting court dates.11 

Free legal-research Web sites are actually more convenient than Lexis or Westlaw for certain matters, and can result in time savings and convenience. Among the most convenient legal-research sites are those for state statutes and regulations, and the most recent U.S. Supreme Court cases.12 

Online lawyer directories seem to be published by every state bar, and each now has a "member search" function on its Web site. These are far quicker, and more inclusive and updated than paging through a phonebook or paper directory. You can bookmark the most frequent directories to instantly find the name, address, phone, fax, e-mail and Web page of any lawyer. You don't even need to know the correct spelling, since the first name and a few letters of the last name will bring the information to your screen for easy cutting and pasting into letters and certificates of service.13 

"E-transcripts" of depositions are available in at least two forms. In addition to the ability of court reporters to send transcript files as e-mail attachments, there are dedicated Web-based applications for easy viewing and searching of deposition transcripts.14 

Most lawyers have to travel on business, or worse, have to be prepared to do some work on vacation. On-the-road computing is sometimes a necessity that cannot be met by logging on to someone else's computer.

Roaming charges can be very expensive. One solution is a prepaid Internet card, similar to a phone card, for Internet use. Your provider sends you a disk, or allows an Internet download of the software or application. Some providers allow international Internet use at very low costs.15 

Compact flash and smartmedia cards, commonly used with expensive digital cameras but often overlooked for other applications, have fast and powerful file-transfer features. These tiny cards (a third the size of your business card) are basically computer chips encased in plastic, and plug into a very small card reader with a short USB cable. This solution is so cheap you can have a card reader at home and another at the office. The standard 128-megabyte card holds the same data as 40 floppy disks, and transfers the data to and from your computer 10 times as fast. Because they are basically external USB port disk drives, you can carry one in your pocket and plug it into computers anywhere to access thousands of pages of your documents.16 

Handheld and palm computing have now transcended the gadgetry stage, and are no longer simple electronic date and address books. Many models have ports for flash and smartmedia cards. Besides use for basic calendar and address functions, these handhelds allow you to load a 1,000-page trial transcript and to "yellow accent" and excerpt it on the screen (in easy-to-read zoom sizes) while sitting in your lounge chair. You can also download your last one or two hundred e-mails to read on an airplane, complete with attachments. Scores of free and low-cost applications for handhelds may be downloaded from the Internet. Some of the more expensive models (which are well worth it) also have voice dictation and Internet access. These devices allow you to have all state and federal rules of evidence and procedure, statutes, cases, and anything else at your fingertips in the courtroom.17 

With any technology, there are both real and imaginary problems with its use in the present and in the future. We lawyers worry about hackers breaking in to our Net storage files, but these are as secure as the lock on your office door. The determined thief will get whatever he or she wants, whether it's paper or an electronic file. We worry about viruses, but we should also worry about floods, fires and misfiled paper. We are concerned that all electronic office files will be unreadable by newer platforms, and that the new developers will fail to develop "migration" programs to convert the old to the new. But high-tech computer developers are competitive, and know their products won't sell without this obvious solution.

We are frustrated at the prospect of forever having to chase new technology. This frustration is valid, but just like the infirmities of age, it is simply a battle you have to fight to stay atop your game and profession. High-minded lawyers fear that as courts and the legal profession move ever more toward the digital age, low-income and disenfranchised people will be left out. Unless we advocate that this is unacceptable, it might indeed happen, but we can have both technological progress and enhanced access to justice.

1. See http://pacer.psc.uscourts.gov/.

2. See http://pacer.psc.uscourts.gov/cmecf/.

3. See
http://www.usa.canon.com/cpr/pdf/ Brochures/iR5000ibrochure.pdf.

4. See list of Web-based file storage services at http://useful.webwizards.net/wbfs.htm. (We use Yahoo Briefcase.)

5. See http://www.yapgear.com/.

6. See http://web.net2phone.com/.

7. See http://j2.com/ and http://web.net2phone.com/.

8. See http://j2.com/.

9. See http://messenger.yahoo.com/.

10. See http://j2.com/services/email_by_phone.asp.

11. See http://calendar.yahoo.com/.

12. See http://www.findlaw.com/11stategov.

13. See http://pro.wsba.org/ (Washington state); http://www.osbcle.org/members/start.asp (Oregon); and http://www.dcbar.org/find_a_member/index.cfm  (Washington, D.C.).

14. See http://www.reallegal.com/etranscript_ATT.asp.

15. See http://www.maglobe.com/home.htm.

16. See http://www.sandisk.com/consumer.