Technology and Statistical Information Management

CHAPTER 18


18.1 Introduction
18.2 Current Situation
18.3 Today's Technology
18.4 Ontario's Needs
18.5 Revenue Generation
18.6 Critical Next Steps
18.7 Other Recommendations


18.1 Introduction


For I dipt into the future,
far as human eye could see,
Saw the vision of the world,
and all the wonder that would be." [156]
"Technology for the sake of technology is useless, dumb and potentially dangerous."

But,

"Justice is not absent just because there is technology". [157]

Throughout our travels during the course of the Review, another consistent theme emerged. That theme was the need to modernize our justice system. We can no longer accept outdated approaches to conducting business with the advent of the "information age". We have not even scratched the surface of the technology potentials available to the courts and its users.

The implementation of modern computer, electronic, telephonic and video technology -- "multi-media technology, it might be called -- is crucial to the creation of a viable civil justice system. It will provide the structural foundation upon which the timely, manageable, cost-effective and streamlined delivery of services to the public can be designed and built. The changes proposed by our recommendations will not be achievable or affordable without maximizing the efficiencies which technology can create.

There is a certain mystique surrounding "technology", of course, coupled with a certain hyperbole on the one hand and a certain skepticism on the other. These attitudes are fed by ignorance (or at least by misunderstanding), by over-enthusiasm, by fear of the new and unknown, and by concerns about costs and loss of the "human" face of justice. Ignorance and misunderstanding -- and the misgivings which grow out of them -- can be overcome with experience and knowledge, however, and over-enthusiasm can be tempered by reality.

Technology should not be introduced simply for "technology's sake", to be sure. However, the benefits which technology offers for the civil justice system, both in the form of long term savings and in the form of better service, far outweigh the intitial costs and effort which accompany its introduction. Technology is a tool to make the system work more effectively. It is a means to an end, not an end in itself.

Between the two extremes of technnology simply for the sake of technology, and no technology, lies the path to a more streamlined, and improved infrastructure for the civil justice system of the late 20th and the 21st century. While Ontario's justice system has taken a few tentative steps along such a path, at present, it seems that there is neither a firm direction in place nor an ultimate destination in mind. Most of the trail remains to be blazed.

18.2 THE CURRENT SITUATION

  1. The Technology Landscape

    Presently the employment of modern automation technology in the civil justice system across Ontario is in its infancy. It is scattered and uncoordinated at best; non-existent or dysfunctional at worst.

    As a Report to the Senior Management Committee of the Ministry of the Attorney put it, in July 1994 [158] :

    "... the Ministry operates in a decentralized environment with respect to technology. Divisions have managed non-corporate technology [i.e. the large systems such as ICON] in terms of expenditures, development, priorities, etc. which has resulted in disparate levels of expertise among the Divisions, modest levels of automation and uneven distribution and application of technology."

    There exists no functioning management information system to generate reliable and accurate statistical data for analysis, research and management purposes -- something which is critical for a smooth, streamlined and effectively-run system.

    There exists no co-ordinated, inter-connected and compatible technology infrastructure to support the management and processing of cases through the system; or to support the work of administrators and judges in carrying out their functions as a part of that process. To the extent that there is a technology base, it is to be found in a myriad of hardware and software configurations with no single platform or system of design.

    Paper is everywhere. It is handled, re-handled, and handled again. The process is then repeated. And repeated again. In sheer volume alone, all of this paper has a numbing effect on the system. It hampers the ability of administrators, judges and lawyers to cope with the workload in a timely and cost-effective manner. Information only on paper is hugely expensive and inefficient to record, to monitor, to retrieve, to move about in courthouses and between courthouses around the province and, finally, to store.

    The current court process is highly labour intensive. It relies mostly on manually driven processes and procedures. This results in costly, slow and unstimulating employment for a workforce that needs, and wants, to be challenged with more purposeful participation in the justice system.

    To date, a classic error in the introduction of technology has been made. Initiatives which have been taken to introduce computer and electronic technology into the civil justice system, have frequently concentrated on efforts to automate these manual functions, without attempting to re-think what the system needs to do and how those requirements can be met in a more streamlined fashion. This approach to technology is almost as self-defeating as the proliferation of non-compatible and unconnected computer systems across the Province. It results in the perpetuation of unnecessary tasks -- a sort of built-in capacity to do the wrong things faster! Contemporary advice makes it clear that the process needs to be re-thought before it is automated.

    Finally, the members of the public are inconvenienced by all of this. Access to information is cumbersome and costly. What can be obtained over the telephone is limited by the nature of that medium, and, while court administrators do their best to co-operate, the volume of requests in some areas is such that counsel and the public may have difficulty getting through. A visit to the court office is time consuming, and, if it cannot be done personally, involves the expense of retaining a lawyer or agent. Attendances for filing documents form a significant part of the disbursements charged to a client in most litigious matters.

    There are verified stories of law clerks lining up as early as 6 o'clock in the morning at courthouses to preserve a position that will enable them to do their day's work of filing and obtaining information before the day is finished!

  2. Document Processing and Flow Procedures

    The methods of processing documentation and the information contained in that documentation in today's civil justice system, and the flow procedures relating to them, can be summarized in the following broad functional categories:

    • Inquiry
    • Receipt
    • Recording
    • Filing
    • Information Distribution
    • Enforcement
    • Financial Management
    • Scheduling
    • Administrative Management
    • Storage

    Each of these functions is performed in various ways across the Province, but for the most part, as noted -- and except in the three case management pilot project centres -- they are performed manually at the present time.

    Charts 1 and 2 depict:

    • the manual process, and
    • an analysis of paper handling and storage costs for one Court centre (London, Ontario). It is designed to give some indication of the dimension and extent of these costs.

    RECORD MANAGEMENT STORAGE STUDY

    ON SITE RECORDS RETENTION COST (USING LONDON COURTHOUSE AS A TEST SITE)
    A. Space allocated for Records Retention office areas 1,551.95 sq. ft.
    B. Space allocated for Records Retention Storage Rooms 17,288.00 sq.ft
    C. Lease costs per year 2 $25.00 sq./ft./year
    D. Annual Lease Cost attributed to Records Retention(1x2) 3 $220,997.75
    E. Volume of Records stored in the London Courthouse 49.500 cu ft.
    F. Annual Case Load (1993 London Courthouse Figures) 5122,187
    G. Each Case produces (4-5) 6.07 sq. ft
    H. Courthouse Lease Cost/Caseload Comparison  
    Lease Costs  
    50.00/sq. ft x .07 x 1 case 7 $35.00 per yr
    25.00/sq. ft x .07 x 1 case 8 $17.50 per yr
    15.00/sq. ft x .07 x 1 case 9 $10.50 per yr
    COST TO STORE LONDON COURTHOUSE RECORDS IN THE RECORD CENTRE (MISSISSAUGA)
    A. Number of cu ft. of Records forwarded to the Record Centre annually 1480 cu ft.
    B. Cost to ship files to Record Centre  
    500 pages/cu ft @ $4.25  
    50 file folders @ $15.00  
    50 labels @ $0.75  
    10 carton box @ $3.00  
    Total materials   @ $23.00
    Transport @ $5.00  
    Packing & Process @ $16.00  
    Total Cost   @ $44.00 2
    C. Annual cost to ship files to the Record Centre (first year)  
    480 cu ft.1 x $44.00 2 3$21,120.00
    D. Number of years files are stored at the Record Centre 47 years
    E. File storage an range between 1 to 20 years, depending on the nature of the documents stored.
    Administration 1 year
    Financial 6 years
    Legal (Provisional) 7 years
    Legal (General) 20 years
    5 YEAR LIFE CYCLE COST ANALYSIS RECORD STORAGE LONDON COURTHOUSE
    FACTORS/ASSUMPTIONS
    Annual file volume shipped (cu ft.) 480
    Cost to ship per cu ft. $44.00
    Annual storage cost at Record Centre $3.76
    (paid at beginning of year) n/a
    Average annual volume reduction at R/C 15.0%
    MAG annual file shipment (cu ft.) 16,400
    MAG file volume stored (cu ft.) 154,000
    London volume shipped as % MAG 2.9%
    London share MAG storage 4,507
    Annual Inflation Rate 2.0% (entered in decimal)
    London Courthouse storage space (sq ft.) 8,839.91
    Lease cost London Courthouse (per sq ft.) $25.00
    Cost of borrowing 5.0% (entered in decimal)
    5 YEAR LIFE CYCLE COST ANALYSIS RECORD STORAGE LONDON COURTHOUSE ($000)

    Apr 95 Apr 96 Apr 97 Apr 98 Apr 99 Total
    Current files at Record Storage $16.9 $16.2 $15.9 $15.8 $16.1 $809
    Ship new files to Record Centre 21.1 21.1 21.1 21.1 21.1 1056
    Total Record Centre Cost 39.9 39.1 38.8 38.7 39.0 1966
    Annual Inflation Factor 1.0 1.020 1.020 1.020 1.020  
    Cumulative Inflation Factor 1.0 1.020 1.040 1.040 1.040  
    Total Record Centre Cost 39.9 39.9 40.3 40.3 40.6 2010
    Cost of London Courthouse space 220.9 220.9 220.9 220.9 220.9 1,1045
    Total Record Storage Lease Cost 260.8 260.8 261.2 261.2 261.5 1,3055
    Annual financing Cost 13.0 13.0 13.1 13.1 13.1 653
    Cumulative financing Cost 13.0 26.1 39.1 52.2 65.3 1957
    Total Record Storage Costs $273.8 $286.9 $300.4 $313.4 $326.7 $1,5012

    IF THE LONDON FIGURES ARE USED AS THE NORM, THE PROVINCE-WIDE 5 YEAR LIFE CYCLE COSTS WOULD BE ...

    FACTORS/ASSUMPTIONS
    A. London sq. ft. lease cost $25.00
    B. MAG Province-wide average lease cost $ 20.00
    C. London 5-year life cycle cost for record storage $1,501,200.00
    D. London File Storage as a % to MAG total 2.9%
    E. MAG 5 year life cycle for record storage 1 ( $1,501,200.00 x 2.9%) x 100
    = $ 43,534,800.00

Current Initiatives

Computer and multi-media technology are not unknown in the court system, as noted. They are sporadically and incohesively employed, however, and underdeveloped. All is not lost, though. There are some promising initiatives underway that move us toward achieving the necessary infrastructure to support the court process.

The following initiatives demonstrate a renewed commitment to modernizing the justice system and, while there still needs significant development, they give the Review team optimism that our vision for mordernizing the system may be achievable

  1. A Province-Wide Network in Infancy

    The Ministry has the beginnings of a province-wide Wide Area Network (WAN), with Local Area Networks (LANs) in various centres. The Wide Area Network currently connects about 900 people across the province, and another 800 are scheduled to be connected in the near future, as this Report is being written. By March 31, 1995, there are expected to be approximately 26 sites in Ontario which are interconnected by the Wide Area Network. The Ministry intends to expand this network "as budget allows" [159] .

    In our view, this initiative by the Ministry represents a critical step in the modernization of the justice system. It is essential that it be continued, and that funds be allocated to give genuine meaning to the words "as budget allows".

  2. Integrated Justice Strategy Regarding Technology

    Within government significant efforts are underway between various Ministries to create an integrated justice system technology that will provide the necessary infra-structure for our vision. If approved, the investment needed to make not only the civil justice system function more efficiently but the criminal justice system as well, will be forthcoming. We support wholeheartedly these efforts and would strongly recommend that government consider very carefully the potential business cases to be made for this technology investment. We believe this initiative has the ingredients required to bring the civil justice system into the 21st century.

  3. The Case Management Pilot Projects: Technology Lessons to be Learned

    The three case management pilot projects in Windsor, Sault Ste. Marie and Toronto are each supported by a technology infrastructure including both computer hardware and software. While the software system which has been leased to assist with these projects has been the subject of some controversy, and has required -- and received -- constant improvements, the case management pilot projects could not have functioned without this support.

    It is not the role of the Review to examine in detail, or to critique, the strengths and weaknesses of the case management software package. However, there are lessons of a general nature to be learned from the experienceof implementing it, we think. They include the following:

    1. Early and Adequate Training of Staff is Essential

      Much of the early controversy which arose regarding the existing software application supporting the case management projects arose because of a perception that the software application was not capable of servicing the needs of the projects. While there remain certain caveats regarding the program, most of its perceived inadequacies were a direct result of staff not having the proper training to extract the best from the program.

      Staff training on the use and flexibility of the software did not occur until approximately three years after its installation. Had such training been provided earlier,

      1. staff, administrators and judiciary would have had a clearer and more comprehensive understanding of the system and its functionality, thus enabling them to utilize its features more fully and more effectively, and minimizing the frustration, inefficiencies and costs flowing from this lack of understanding; and,
      2. there would have been less need to develop local companion applications in other software with the additional costs and time considerations accompanying such a need.

      Early and adequate training of users of the system is therefore essential. While there is a cost factor in such training -- it is estimated that an additional 10% should be added to the cost of a system to encompass aspects of training -- the full benefits of whatever system is put in place cannot be achieved without it. Moreover, the training will be required at some point; and in the long run, the price of delaying it far outweighs the initial cost.

    2. It is counterproductive simply to automate existing manual systems.

      The software application system implemented to support the case management projects was configured to automate administrative procedures which had been done manually. There appears to have been little effort to re-think those procedures from the process management perspective, in light of today's technology and in light of the needs of case management. As a result many inefficiencies in the system have been perpetuated.

      It is important, when addressing the software needs of a system, to articulate clearly the procedural requirements of the newly designed system. Only then can the resulting expectations of a software application suited to the new procedures be properly identified.

    3. Avoid the Need for Extensive Data Entry by Court Staff

      The existing case management software application requires a great deal of data entry by court staff. Heavy workload pressures in busy centres cause time lags in the entry of data and errors in data entry. As a result, the data produced by the system is not as timely as it should be; moreover, it is not as reliable as it should be, and requires implementation of additional checking at various points of the process, something which in turn adds costs and is less efficient.

      The lesson from all of this is that whatever software application is eventually chosen to support the case management and management information dictates of the civil justice system must feature as minimal manual data entry at the court office as possible. The information must be captured, upon entry, in a reliable, multi-functioned and consistent way.

    4. Useful and Consistent Management Reports Should be Generated.

      The present software produces reports for the case management projects that are not as useful or as suitable and desirable for the Administration and the Court. Customization of the reports is needed.

      A supporting software system must produce information that is reliable, relevant, useful, standardized, and must be available on-line.

  4. The Gathering of Statistics: the Courts' Information Statistical System ("CISS")

    "The government is very keen on amassing statistics. They collect them, add them, raise them to the nth power, take the cube root and prepare wonderful diagrams. But you must never forget that every one of these figures comes in the first instance from the village watchman who puts down what he damn well pleases". [160]

    The Ministry also collects data currently from across the Province and inputs it into a computer data base, for purposes of generating statistical information. There is no cohesive, standardized province-wide system for doing so at the present time, however, and the statistical gathering exercise depends upon the initial assembly and entry of information and data manually by staff. In such a system, the potential for error in the simple transfer of data from one medium to another and for inconsistency of input as a result of differing interpretations of data are great.

    The system produces some useful information, and great improvements have been made in its reliability in the past two or three years. Efforts are being made to continue those improvements. However, because of the frailties arising from the manual entry of that data and from "local interpretation" of non-standardized entry criteria, the information begot by CISS is sometimes neither consistent, dependable nor accurate.

    Moreover, the information which is collected is collected at an aggregrate (or macro) level, and is not case specific. It measures such things as the flow of cases into the system, the number of cases on trial lists and the number of cases that go on to trial. It measures, in addition, the number of motions, the number of applications and the overall number of cases disposed. It provides certain information about types of cases, but only within restricted parameters such as: family and children's law; motor vehicle; construction lien; probate; and "other". In locations outside of the three case management pilot projects in Windsor, Sault Ste Marie and Toronto, decisions as to how each case is classified are made by court staff rather than by litigants or their counsel.

    While this sort of aggregrate information is helpful, and indeed necessary, it has numerous limitations and infirmities.

    For one thing, the method of gathering and developing information amounts basically to the counting of numbers. It does not lend itself to tracking information about what is actually happening throughout the system which would be useful for the overall management of the system. For instance, it would be helpful to know more:

    1. about the types of cases dealt with in the system;
    2. about who the litigants in the courts actually are -- individuals, corporations, businesses, associations ? -- and whether they are represented or not;
    3. about the dollar amounts of the claims involved, and the amounts of the judgments ultimately obtained;
    4. about the number of motions in each case, and the length of those motions;
    5. about the type and timing of various kinds of dispositions;
    6. about costs;
    7. about appeal rates for different types of cases;
    8. about the aging of claims from the date of the cause of action through the various stages of litigation;
    9. about trial and motion scheduling effectiveness (i.e. how many cases settle, are adjourned or cannot proceed because of the unavailability of sufficient court time or space);
    10. about the correlation between case management events and case disposition rates and timing;
    11. about the correlation between trial management conferences and trial length;
    12. about the use and effectiveness of available options (e.g. teleconferencing or video conferencing);
    13. about the results of monitoring the use of specific courtrooms or court locations for different purposes; and generally,
    14. about how to determine the amount of judge time, or number of judge days necessary, in across the Province, and in the various court centres, to enable the system to operate effectively.

    This list is not exhaustive. The definition of the types of information required to enable the civil justice system to be managed effectively is an important task which must be addressed.

    In addition to the foregoing weaknesses in the present method of collecting data, that exercise is currently conducted in a manner which lends itself to the numbers captured being distorted -- or at least their meaning blurred -- by the dictates, interpretations and perceptions of those collecting them.

    Courtroom utilization statistics, for example, are a case in point. A different format and different type-of-case information is employed in accumulating figures for that purpose than is employed in generating the aggregate reports referred to previously. Consequently, it is not possible to make cross-references between the two kinds of reports.

    Courtroom utilization statistics are viewed with a jaundiced eye by many members of the judiciary. They are suspected of being an attempt by the Ministry to produce an unrealistic measurement that will serve as a rationale for reducing the number of courtrooms. Courtroom time is not counted as being "utilized", for example, when the Court has been adjourned for meetings with the judge in chambers or to accomodate settlement discussions between the parties during the trial. If those discussions begin during the morning but continue into the afternoon, and court is not reconvened, the courtroom is considered to be idle, even though it must be ready for the trial to continue if the case does not settle.

    Thus, while the statistics generated by these courtroom utilization reports give some indication of the number of hours that courtrooms are in session across the province, they do not provide meaningful information about the amount of work that is being done by judges, lawyers and litigants outside of, and in the shadow of, the courtroom.

    The presence of a courtroom, ready for the commencement of a trial, is itself a critical motivator for the settlement of cases. Moreover, as judges move towards case management, additional time is being spent by them outside of an actual courtroom in the management and settlement of cases. These activities must be recognized and measured as well.

    Finally, as information is captured, it must be captured in a reliable and consistent way, with as little human intervention and interpretation as possible. As much as can be, it needs to be collected automatically, so that whenever a case enters the system information respecting it can be gathered immediately and compiled in a way which allows the necessary management reports to be produced in a timely fashion.

  5. Court Reporting Pilot Projects

    The accurate recording and transcription of evidence in the courtroom is critical for the proper functioning of a court of record. Traditionally this function has been performed by a court reporter or stenographer who is present in the courtroom to "record" what is said. Techniques have included the pen, of course, and in latter years the stenograph machine and the stenomask in combination with a tape recorder.

    As outlined and described in the next section of this Chapter, new technologies have developed and are continuing to develop. These include the use of open-mike audio recording, computer assisted transcription ("C.A.T.")and voice activiated transcription ("V.A.T."). Open-mike audio recording and C.A.T. technology are in common use in various jurisdictions today. V.A.T. technology is still in the development stage.

    The Ontario Government, in conjunction with a Joint Committee on Court Reporting -- comprised of representatives of the bench, bar, administration and court reporters -- is currently examining these available technologies with a view to making recommendations to the Ministry on the issue. At the present time, there are three audio-recording pilot projects in existence. They are located in London, North Bay and Picton, and their results will be evaluated by the Committee.

    While we have not visited these pilot projects, members of the Review have visited court facilities in Hull and in Quebec City where audio-recording facilities are utilized. They appear to function well, and to provide adequate tapes for transcription, in properly equipped facilities. Audio-recording is the technology of the late 1970's, however, and while it appears to function satisfactorily in such circumstances, it is not a technology which is readily compatible with computer technology that is developing.

    These factors, together with the costs of various options, need to be carefully weighed before determining which technology should be adopted on a large scale basis.

  6. 18.3 TODAY'S TECHNOLOGY

    There are many applications of computer and electronic technology which are available on the commercial market and ready for utilization to-day, and which can make the civil justice system function more effectively. Although the introduction of such technology will involve initial capital expenditures in terms of hardware, software and training, these technologies will save money in the (not very) long run and are worth the investment. They include -- to name but a few -- applications which permit:

    1. electronic filing of documents directly from lawyers offices to the court data bank -- computer to computer -- by fax/modem, E-Mail, or other similar method of electronic data transmission;
    2. electronic imaging -- "scanning", it is called -- to facilitate the input of documents brought to the courthouse by those who do not have the equipment for direct electronic filing, or by litigants acting on their own behalf;
    3. electronic mail (E-Mail) -- provides for the exchange of information electronically through the use of telephone lines. The use of E-Mail is widespread within both the government and the private sector. It provides the basis for electronic filing of civil cases.
    4. automatic payment of filing and other fees by debit or credit card;
    5. video conferencing; numerous people, in various locations remote from each other, can conduct meetings through the use of connected video services. Video conferencing operates through a visual and audio environment, utilizing telecommunication services such as fiber optic cable, coax, microwave transmissions, infrared transmissions, or a combination of the foregoing.
    6. the generation of accurate statistics for purposes of financial and administrative management;
    7. the scheduling of cases, motions, case conferences and most other "events" in the system;
    8. the storage of data with much smaller space requirements and in a manner that makes it accessible simultaneously by anyone requiring and entitled to access, from anywhere, for any number of purposes related to the processing of cases.
      A CD-ROM is a physical device for storing and retrieving information. In appearance, it resembles a compact disc device containing music. The CD-ROM is capable of holding a great deal of information. Normally, a CD-ROM access device can accomodate 1 to 20 or more CDs at the same time (depending upon the device). Each disc on the device can be accessed simultaneously.
      CD- ROM technology is used to store and gain access to large quantities of what would otherwise be many bookshelves of materials. For example, all of the decisions of the United States Supreme Court from its creation can be obtained on a single CD-ROM disc. The same thing could be done with federal and provincial statutes, regulations, Rules of Practice, practice directions and any number of other legal digests and periodicals. In fact, the Ontario Citator Service is now available from Canada Law Book Inc. on CD-ROM.
    9. Teleconferencing -- Multiple numbers of individuals, in various remote locations, can converse or conduct meetings through the use of connected telephones. This is strictly an audio environment. With connected computers and recording devices, exchanges of information and a record of the meeting can occur.
      The Rules of Civil Procedure in Ontario currently provide for motions and applications to be heard by conference telephone call where an appointment is obtained from a judge or officer before whom the motion or application is to be heard [161] . Pre-trials may be held by conference telephone call where all the parties and the judge consent [162] .
    10. Touch Screens -- Touch screen automated information and counselling centres are available today in some court locations in the U.S.A.
      Touch screen technology permits the design of self help computerized information centres. The system is graphically driven, with audio reinforcement. The user gains access to information in the system simply by the process of touching specified areas on a monitor.
      "Kiosks", or other forms of automated information centres are the most frequent application of this form of technology. They allow the public ready and easy access -- in courthouses or in other public places remote from the courthouse -- to such things as
      • automated information regarding the courts, court procedures, the status of cases and court calendars;
      • automated information for jurors, and the ability to make telephone inquiries regarding service, attendance, fees, court locations, etc.;
      • automated information centres to provide support for children in family matters, for witnesses, or for victims;
      • automated Government directories.
    11. Audiotext, with Voice Response Unit (VRU) and Interactive Voice Response (IVR) -- Audiotext is a passive application using a touch-tone telephone, which allows interaction between a person and pre-recorded scripts or programs to provide verbal information. With the added feature of a Voice Response Unit, the application can access a database and bring back, through a digitized voice, the answer to a question posed through the scripts.
      Interactive Voice Response technology incorporates audiotext (pre-recorded scripts) and Voice Response, and adds the capacity for interactive action. For example, it allows enquiries about and the payment of fines, using a credit card.
      These forms of technology, together with touch screen technology, are central to the concept of "kiosk" access to information.
    12. Voice Recognition and Voice Activated Technology -- Voice Recognition is a technology which involves the ability of a computer to identify and learn a person's voice patterns, and to interpret them into text electronically. Voice Activation permits an activity to occur by voice command.
      These technologies form the basis for the "voice activated" computer, which has the ability to create Wordprocessing text out of its human's voice.
      They are also the basis for an extremely sophisticated form of evidence transcription. In this form of transcription a reporter speaks into a stenomask and the computer converts his or her voice to text immediately. The text is viewable on a computer screen almost simultaneously, and can be projected on a larger screen in the courtroom for the assistance of jurors, the hearing or visually impaired, or anyone else in the courtroom. "Real time" reporting is the name given to this phenomen.
    13. Computer Aided Transcription (C.A.T.) -- The C.A.T. system of evidence transcription uses a stenograph writer, which is a machine into which the reporter enters the proceedings in the form of stenographic symbols. These symbols are printed on a running tape, similar to an adding machine tape, as well as onto a computer disk.
      When the proceedings are complete, the reporter removes the disk or tape from the writing machine and inserts it into a computer that has a special C.A.T. software. The computer produces the transcript by translating the stenographic symbols into English from an individual, personalized dictionary developed by the reporter. The reporter proof reads the computer produced transcripts, making all necessary corrections. When the verification process is complete, the transcript is printed and is available in both written and diskette form.
      "Real time" transcription is available in an unedited form, using this technology.
    14. Video Recording -- In the United States, video recording to create the official court record is becoming increasingly popular. There are experiments in many states. Video recording systems commonly consist of:
      • a series of voice activated cameras with a manual override and control operated by the judge or a designated member of the court staff
      • tape logging performed by the operator of the system (either the judge or a member of the court staff)
      • four or five recording units
      • a tape storage system
      • capability for media hookup
      • the ability to provide copies of video tapes to counsel on request with or without a fee attached
    15. Open Mike Recording -- Open mike recording is a technique for court reporting of proceedings using a tape recorder. No court reporter is present in the courtroom, but the tape is monitored, either by a member of the courtroom staff or by personnel in a central recording room.
      In facilities where there is a central recording room a bank of tape recorders transcribes the proceedings from different courtrooms simultaneously. One multi-track master tape operates as a backup for all transcriptions.
      In properly constructed facilities with properly equipped courtrooms and proper sound recording facilities this technology produces and accurate transcript. Time and events are logged at regular intervals, and evidence can be "read back" during a trial or hearing, on request, within a very few minutes. Tapes can be made available to the judge, the lawyers, the media or other members of the public. Hard copy transcripts can be produced, either by a court reporter or by the recipient of the tape.
    16. Bar Coding -- Bar coding is an inventory control system which allows the user to record product or file information in a condensed version using varying width sizes of black straight lines, assembled in a specific fashion and which can then be read through the use of an electronic scanner. The details contained in the bar code can be converted to text or connected to a data base for tracking.
      Apart from the enhanced management information that would be generated from the investment in these technologies, the amount of savings in terms of reduced paper flow, reduced storage, and the re-allocation of staff will be very significant.
      Given the advantages of these modes of techology -- including the compelling business case which exists for them -- it is imperative, in our opinion, that steps be taken immediately to expedite efforts to automate the civil justice system. The responsible utilisation of public resources in an age of competing claims on such resources by different segments of government mandates nothing less.
    17. 18.4 ONTARIO'S NEEDS

      We turn now to an analysis of what are the needs of that system which these technology tools can help to meet.

      A brief word of caution may be in order before doing so, however. Without a cultural change in the way we approach the need for documentaion and the presentation of information there is a risk that the "information superhighway" will be engulfed by the information society's version of Noah's flood. Because it will be easier to transmit materials electronically to the Court there will be a temptation to transmit more, and to do so indiscriminately. This temptation must be resisted. The object, after all, is not to drown the recipient, but to help everyone involved to understand the dispute and, thus, to be able to resolve or decide it.

      In addition, ingrained habits which drive people to reproduce material in hard copy on a "just in case" basis rather than on an "as needed" basis, make it debatable whether technology will indeed reduce the amount of paper being handled, without such a cultural change. The Lawyers' Weekly recently reported, in fact, that the opposite seems to be true. In an article dealing with technology in the law firm entitled "Is the Paperless Law Firm just a Pipe Dream ?", this legal publication said:

      "Dreams of a 'paperless office' appear to be going up in smoke, according to a recent survey which shows paper use is actually up in about 50 per cent of Canadian companies....
      ".... half the companies surveyed use more paper as a result of computer and electronic technology. .... The top reason for increased paper use is that employees like to keep hard copies of their work, according to 62 per cent of the companies."
      " .... It's estimated that office workers in North America handle 21 trillion pages of information every year and create one million new pages every minute of every working day." [163]

      Overall, what is needed in Ontario, in our opinion, is a province-wide system of Wide Area Networks, Local Area Networks and computerized work stations that will feature and ensure:

      1. the establishment of a functioning management information system which will permit those working within the system to have timely and current access to reliable and accurate statistical data for analysis, research and management purposes;
      2. the significant streamlining of the capture and flow of information, by electronic means -- between courthouses and the legal community, between courthouses and the public, and between administration and judiciary around the Province -- in order to eliminate the avalanche of paper which is paralyzing the system and the excessive cost accompanying it, and in order to expedite the civil justice process generally;
      3. the creation of opportunities for the public to have access to the system through such available technologies as kiosk terminals (using "touch screen" computers) in public places, shopping centres and court information centres, thus permitting the public to do business with the courts without necessarily attending at or telephoning court offices;
      4. the utilization of video technology, where appropriate, to aid the court and parties to deal with matters over long distances without the inconveniences and expense of extended travel;
      5. the support to caseflow management and the approach to the processing of cases through the system which it entails, through the creation of a province-wide computer network and software program which will enable it to operate effectually in a way which will facilitate a timely and responsive civil justice system.
      6. an improved and more streamlined workplace which will enable administrators and judges to perform their functions in an effective and fulfilling way; and,
      7. the necessary co-operation and co-ordination between the Bar, Courts Administration, and the Bench, to ensure compatability between the technology systems in use by each.
      8. an enabling set of Rules of Civil Procedure which will allow for the use of multi-media technologies for processing work in the courts.

      The Need for an Accurate and Reliable Management Information System

      This need cannot be overemphasized. Accurate civil justice statistical information is a critical element in developing an effective strategy to manage the Courts' caseload.

      The requirement for a management information system must be differentiated from the need for an automated infrastructure to support caseflow management. They serve a different purpose. A "management information system" is necessary for the monitoring and evaluation of the effectiveness of the civil justice system as a whole. The support system for case management, and the "management information" which it produces for that function, are necessary for dealing with the specifics of caseflow management. Both are important.

      However, the civil justice system simply cannot continue to function without a proper management information system which generates dependable data and statistics on a province-wide, regional and local basis. The implementation of such a system must be made a priority.

      RECOMMENDATION:

      We therefore recommend that steps be taken immediately to put in place the necessary technology for the creation of a proper management information system for the civil justice system, and thereafter to implement such a system.

      The Need to Manage and Control the Information and Documentation Circulating in and out of the System

      Information handling -- the recording, retrieving, transmitting and storing of documentation and data -- is the second major sphere in which technology can play a significant role in improving the problems of the civil justice system. We are literally drowning in paper and in information. Originals, photocopies, facsimile messages, copies of the original facsimile messages, computer printouts, diskettes, (E-mail) messages -- the list is virtually endless. Yesterday's methods cannot handle this inundation. We are being driven to this change, moreover -- and will be driven to a certain extent by it -- as a result of the increase in speed, generally, and the increase in turnaround time, particularly, generated by the force of these factors on the Court by outside influences.

      The pleadings, affidavits, notices, memoranda of argument and other documents produced by the parties, generally through their lawyers, in litigation, together with the reports and documents produced by and on their behalf as exhibits and evidence, form the grist of a lawsuit. At present these documents, and the information contained in them, are recorded, stored, secured and transmitted manually. We observe in passing that most of them have already been prepared electronically in the lawyers' offices, and produced in hard copy to be filed with the Court. Court staff then are required to extract, manually, from those documents the necessary information to provide a record of the Court's activity. As already noted, they review the documentation -- or, at least, some of it -- for information to be recorded into the Court's statistical base, returning it in the process to its original electronic form.

      There are significant administrative costs associated with the performance of these tasks, and limited and expensive space must be allocated to the storage of court files.

      While a totally "paperless court" may be no more than an amazing technicolour dreamcoat in the eyes of some high technology purists and court administrators of that persuasion, it is much more closely attainable -- and attainable in commercially viable ways -- than it was a few short years ago. Many of the benefits of such a system are readily available today.

      When information is entered into a computer system, it can be shared by many users at the same time. Transmission of documents, and of the information contained in them, can be accomplished instantly by the use of a few key strokes on a computer. Storage costs are radically reduced. The possiblities of losing documents are virtually eliminated. Data is captured in a consistent and accurate manner. Moreover, it is captured, and saved on backup, in a secure manner.

      The technology which makes the creation of such an environment possible today is described in more detail elsewhere in this Report. In summary, however, it encompasses such things as filing by diskette, electronic filing by remote modem access, electronic imaging, E-Mail, facsimile methodology and the technology of telephony.

      The Need to Provide Service to the Public, Directly

      It was submitted to the Review on many occasions that there is inadequate information about the system and its processes available to the public, who are the ultimate users of the civil justice system. To the extent that such information exists, it is not readily accessible or in a format that is easily understood by members of the public.

      We believe that information about the system and its processes should be made more readily available to the public. This can be done through the distribution of pamphlets and other written information in court locations and in other public places in the community. Technology provides other mechanisms, however, to facilitate the task, and to broaden the scope of dissemination. Some of these technologies include familiar devices such as video tapes, "touch screen" computers, and technology based on the use of the telephone.

      It is quite possible, at present, to do most of one's banking and to pay most of one's bills by telephone. Kiosk and "touch screen" technology is already in use for such things as the payment of traffic fines and the renewal of drivers' licenses. Why should it not be possible to contact the court system and elicit at least basic information about the courts, about how to access them and about what is happening in them, in the same fashion, using an extended version of these mechanisms ?

      In short, technology can be used in this sense to:

      1. increase public access to, and public awareness of, the civil justice system;
      2. ensure the consistency and quality of information provided to the public, and its wide dissemination;
      3. maximize the effectiveness of existing staff resources;
      4. ensure that in this context the members of the public are given information only and not legal advice;
      5. provide easy information updates;
      6. allow for remote access to court information;
      7. allow for access outside of "normal" business hours.

      These sorts of technology systems would be discrete and separate from those systems that might be required to support the actual court processes, in order to ensure security, data protection and confidentiality.

      Potential exists for co-operation between the provincial and federal levels of government, and between provincial governments, for the shared use of hardware systems and technology which are already in place, and for the cost savings which can accompanying such co-operation. For instance, as previously mentioned, Ontario is presently using kiosk technology for motor vehicle licensing matters and for payment of fines in some areas. The Federal Government uses a similar form of technology for the provision of income tax information and for unemployment information services.

      The Need for Video Conferencing

      Video conferencing has been defined earlier in this Chapter. Briefly, it involves multi-point communications between persons in the same and different locations, both in audio and video, and through the medium of telecommunication transmission services.

      In its most sophisticated form video conferencing can provide,

      • interactive communications featuring high quality audio and video transmission, with full colour and motion;
      • simultaneous conferencing amongst many people located in multiple places;
      • graphics and fax capablilities
      • storage and retrieval of images; and,
      • communication of data [164] .

      Video conferencing technology is complex and, at present, expensive. However, like many things relating to technology, improvements are rapid and costs are falling.

      The Ministry of the Attorney General is experimenting with video conferencing in pilot projects respecting bail remands in London and Kingston. In the United States, between 150 and 200 courts are using this technology for first appearances and misdeamour arraignments. Although the process has been used primarily in the criminal field, the members of the Civil Justice Review believe that it has marked potential for certain civil proceedings -- particularly for motions, applications, and case conferences of one sort or another. It might also be useful for the presentation of some forms of expert testimony at trial, and, perhaps, for other purposes at trial. The extension of video conferencing to the trial process raises difficult issues with respect to the conduct and general fairness of the trial, however, and would require much careful consideration before implementation.

      Nonetheless, there is little doubt that video conferencing technology creates the potential for reduced costs and greater flexibility in the system. It facilitates access to each other by parties, lawyers and judges for purposes the disposition of many pre-trial matters. It opens up the capacity to deal with remote testimony in interlocutory matters and even -- subject to the caution expressed above -- for dealing with certain kinds of evidence at trial. It eliminates a great deal of travel by parties, witnesses and lawyers, in particular, and saves the time and costs attendant upon such travel.

      Video conferencing is a very practical way in which a judge, who is away from his or her home base on circuit, can continue to deal with case management hearings or conferences that must be attended to while on the road.

      Finally, we believe that the use of video conferencing has particular potential to benefit members of the public, the Bar, administrators and judges in the northern parts of Ontario. Distances define the North. All of the characteristics which make video conferencing attractive in any environment, make it doubly so for those who must have access to the courts in the North East and North West Regions of the Province.

      Because video conferencing remains a complex and expensive innovation, care and planning must accompany its introduction.

      RECOMMENDATION

      We therefore recommend that a pilot project be established to test the utility of video conferencing technology in civil matters. We suggest that the project be established amongst a number of communities in Northern Ontario.

      There is no reason why efforts should not be made to co-operate with other Departments of Government in those communities to share the costs and the benefits of such a program.

      Arnstein and Goodwin have emphasized that thorough planning is critical to the success and affordability of a video conferencing project. In their presentation to the Fourth National Court Technology Conference, sponsored by the National Centre for State Courts in October 1994, they said (in a passage entitled "Some Critical Success Factors for Implementing Videoconferencing" [165] :

      For courts to successfully implement videoconferencing, several key issues must be addressed. These include:

      • Procedures - videoconferencing applications that involve multiple agencies, such as arraignments, require very careful coordination of procedural changes;
      • Project Management - Each project must have a project manager responsible for development and ongoing operations. The project manager must have top management/judicial commitment, and also be supported by working groups of users for each functional area;
      • Training - Adequate time and resources must be allocated for training in both the operation of the technology and in new procedures; and
      • Staffing - Users must develop a clear understanding of what staffing is required to operate the videoconferencing system. This will depend on the complexity of the system and application. Options include full- time dedicated operations staff, part-time dedicated staff, or user operators.
      • Jurisdictions investigating video technology must begin by first reviewing their application. Because of the wide range of available solutions for incorporating video technology today, a thorough assessment of a court's present needs, as well as its future operations must be conducted. Some of the universal questions that should be asked include:
        • How many different sites must communicate together?
        • How frequently is the equipment to be used?
        • Are groups of people (as opposed to single individuals) going to appear on camera at each site?
        • Does every video participant have to see each other?
        • Is this recorded?
        • What communication services do the local carriers offer?
        • How much money is available for one-time equipment purchases?
        • How much money is required for recurring expenses?
        • What other types of future uses can be identified?

      The Need to Provide a Supporting Infrastructure for Caseflow Management

      As described elsewhere in this Report, caseflow management is essential if the modern civil justice system is to meet the challenges of caseload growth, particularly in the urban centres.

      We have earlier described the need for, and the role played by a proper technology infrastructure in the provision of management information for the three case management pilot projects. With our recommendation that caseflow management become the norm across the Province, this need is even more pronounced.

      Technology is important to case management for other reasons, too, however.

      Monitoring is an essential aspect of the case management imperatives. The elements of such a system include early intervention and evaluation of incoming cases and the scheduling of events which allow for supervision of the progress of each case. There is a need for tracking of cases according to pre-determined time standards which set the parameters for completion of the various phases of litigation. These events must be monitored, and the only way in which such monitoring can be accomplished effectively is for each case to be entered into a system that can diarize the events.

      Supervision of cases requires an ability on the part of judges and administrators to make direct inquiries as to the progress of the litigation. In a manual, paper-based environment, such a task is overwhelming, if not impossible. In an electronic milieu, it can be done with the stroke of a few keys.

      Lawyers, too, will be seeking readier access to information regarding the status of their matters, because of the dictates to adhere more strictly to time lines in a case managed system than in a non-case managed system. Remote modem access makes it possible for them to do so directly from their office, or from wherever their lap top computer rests.

      In a totally electronic environment, the documents in a case, and the information contained in them, can be retrieved at any time by more than one user -- from anywhere access is available by modem, by E-mail or by any other method of computer communication. Case conferences and settlement meetings can be held anywhere where there is access to the system. Tele-conferencing and video conferencing can unite parties in different locations, for similar purposes, or for the disposition of motions.

      For a superior trial court that will continue to circuit around the Province, these tools have particular importance for the effective management of the Court's caseflow.

      The Need for an Improved and More Streamlined Workplace to Enable Administrators and Judges to Perform their Functions in an Effective and Fulfilling Way

      There is an urgent need to improve and to streamline the workplaces of judges and administrators in order to maximize their effectiveness and, thus, to maximize the utilization of public resources in this respect.

      While larger technology applications are critical to serve the macro needs of data and information handling and case management, there are many micro-level applications which can be used to enhance the ability of individuals in the system to perform their tasks.

      The Judiciary

      Access to, and the ability to use, modern computer technology is an enormous aid to a judge in carrying out his or her work.

      The work of a trial judge is varied and complex. Judges do not simply spend their days observing and listening to witnesses and lawyers, and then, at the conclusion of a case, drawing upon some deep pool of wisdom and experience to instruct a jury upon the law or to give judgment. They do observe, listen, instruct juries and give judgments; but much happens in the course of that process regarding which computer technology can be a great support.

      A judge must take notes. Occasions where transcripts of the evidence are made available are very rare. Note taking is time-consuming, tiring and attention-diverting. Observing the witnesses, and the general courtroom setting -- over which it is the judge's duty to preside -- are difficult. Trials are becoming increasingly long and complicated, and the evidence led at them similarly lengthy, complex, technical and scientific. The challenge of taking accurate and dependable notes increases accordingly.

      Unfortunately, as one group of judges submitted to us,

      this vital note taking process has developed little for most judges since the time courts of record first came into existence. The line of technological advancement may be summarized in this way: from the quill pen to the steel nib pen, to the fountain pen, (many have stopped here), to the ball point pen, to the roller ball pen! [166]

      Notes have traditionally been inscribed by judges in Ontario in red "benchbooks". These books serve as the basis for their findings of fact and their judgments, and are kept and stored as their record of the proceedings. The writing in them is generally illegible. They are cumbersome to organize for purposes of preparing jury instructions or decisions. They occupy a great deal of storage space over the years, and are not always easily accessible. Moreover, they are expensive.

      None of these sorts of problems need any longer exist, in the day of the lap top and notebook computer. Nor should they.

      Even where a computer is used only for wordprocessing purposes, it is immensely helpful to the user. A judge who prepares his or her own judgments and uses the computer for other organizational tasks is a judge is a more effecient and effective judge.

      In terms of assisting in the processing of cases, however, the computer has incalculable advantages. Notes which are taken on a computer are legible, easily organized and searched for purposes of preparing jury instructions and decisions, accessible, and capable of very economical and convenient storage. Jury charges and memos of law can be stored in electronic form, quickly and easily retrievable. Research is facilitated and expedited. A computer equipped with a modem or a fax modem provides ready access to Quicklaw and other legal data bases, and the ability to communicate with other judges, law clerks, court administrators and even law firms. This latter flexibility is particularly valuable for a judge who is out on circuit.

      After describing his odyssey from yellow notepad to notebook computer, and his use of the instrument as note-taking vehicle, legal research tool and mechanismfor the assembly and preparation of decisions, one American judge concluded as follows: [167]

      "I do all this on a notebook computer that weighs about six pounds. The keyboard is quiet enough for courtroom use, the screen bright and colorful..... The size of the computer permits me to use it on the bench, carry it into chambers, take it home when I need to complete a project or review my notes, take it on the road when I work out of town. Attached to a Local Area Network, it is a communications tool in the courthouse. Attached to a fax/modem, you can deliver your written opinion to counsel's office before they can make it back from your courtroom. You can reach out to legal and nonlegal databases, such as Westlaw and Lexis. You can communicate with colleagues across the country and even around the world on Internet or another online service."

      While judges cannot be compelled to drink from the fountain of new technology, the availability of such technolgy should become the rule, and those who are already computer literate, or who are prepared to devote the time and effort to becoming so, should have that opportunity.

      This should not be something which is dependent entirely upon the judiciary demonstrating that they can make some sort of "business case" for such innovations, and thus save the government money -- although such a case can be made. A judge who works more efficiently and more effectively, with modern aids, and who draws upon a reorganized support staff in respect of these matters, is a judge who is less costly to the system, who is more productive, and who is better able to deliver a higher quality of justice. In virtually every other segment of society, however -- be it in the home, be it in business, in government, or in the legal community itself -- the wide use of available technology is recognized and accepted as indispensable to the efficient collection, storage, and processing of information and to the efficient conduct of daily work. We believe the judiciary should have access to the prevalent technology so that they can derive the many benefits in the performance of their important work.

      Administrators and Staff

      To no less an extent do administrators and staff in the various court service centres around the Province require the availability of modern computer technology for the perfomance of their important tasks. While individual computers and work stations are springing up, the Courts Administration Division of the Ministry of the Attorney General lags behind other Ministries, in reaping the benefits of the new technnology.

      As we have frequently noted, with the exception of the three pilot case management project locations, the co-ordinated use of computer technology is not widespread across the province in the civil justice area. Manual entry, manual record keeping, manual storage, and the manual handling of information and documentation are commonplace. They are also expensive for the system, and personally stultifying for those performing the functions.

      Staff need to be able to work in an environment where what they do is seen and understood to be useful in their tasks of serving the public and the Bar, and in supporting the judiciary. This is difficult, if not impossible, where many of those tasks are unnecessarily repetitive, hopelessly outdated, boring, or outright redundant.

      Submissions from Courts Administration representatives across the Province consistently pointed out the need for automation in its varying forms, and in particular the need for such things as:

      • a proper networking system
      • office and user terminals for information access
      • access to court lists by lawyers
      • applications permitting the monitoring of events and results in a case; file tracking; automated accounting, including the payment and recording of fees; and the generation and capture of case aging, management and statistical information

      The Impact of Technology on the Bar and the Need for Co-ordination and Compatibility Between the Bar and Courts Administration

      The widespread introduction of technology will have an impact on the Bar as well and will require co-operation and co-ordination between Bar and Administration to ensure that the systems in use are technically compatible.

      Our consultations with various law associations and law firms revealed that lawyers and their firms, generally, are much more advanced in the utilization of computer and electronic technology than are the courts. Larger law firms, in turn, typically operate more sophisticated systems than do smaller sole practitioners. There are firms where the level of technology consists of an electronic wordprocessor only, but we suspect that the number of such firms is dwindling rapidly. The cost of technology is clearly an issue for smaller firms. However, technology can make smaller firms more competitive.

      Law firms tend to purchase software applications which have been developed commercially to address the performance of specific functions such as the handling of estate matters and real estate files, the management of documents and transcripts in litigation proceedings, and the performance of bookkeeping and accounting functions. Remote access to court files, the electronic filing and retrieval of court documents, the automatic payment of fees, etc. will require additional software programs and purchases. Lawyers, like everyone else, will require time, training and experience to become accustomed to such changes.

      We have noted that within the Courts Administration system, where technology does exist, there are a variety of unconnected and unco-ordinated systems and applications in use. The same is true in the law firms. Software programs and applications in use vary widely.

      It is therefore of critical importance that representatives of the Bar and representatives of Courts Administration co-operate and co-ordinate their efforts in respect of the installation of technology systems, in order to ensure that the Bar's systems and the Court's systems can communicate effectively with each other, technologically speaking. Standardization requirements, protocols and communications formats must be worked out.

      The introduction of a technology interface between Courts Administration and the Bar will have significant impact upon the practices of lawyers, as well as upon the working environment of administrators and judges. These impacts cannot be ignored, and the Bar must prepare for them. They include such things as:

      • major investments in hardware and software
      • major investments in training of lawyers and staff
      • the conversion of exisitng files and systems to a new environment
      • the location of dependable suppliers and services to support and maintain the new systems
      • decisions about whether to develop and maintain systems internally or whether to purchase from outside third parties
      • the need for support for the entire system from all groups

      There are great advantages, however. Firm and client information can be stored, retrieved, analyzed and converted to working product more easily and less expensively. The time needed to prepare material for the Court, and to file and deposit the material with the Court, is significantly reduced. Communications are improved. Information about what is happening with a case is readily obtained -- at any hour of the day or night, from any location where a computer and modem is handy, and by any number of authorized users -- without the expense and delays of attending at a court counter and waiting in line.

      Information retrieved and handled in such a fashion is worth money to lawyers and their clients. There is some consensus amongst the members of the Bar that a service fee would be appropriate, and accepted, for access to such things as as the status of trial lists, the status of files generally, and dealing with consent adjournments.

      The creation and handling of documentation, however, is the major area in which computer technology in the law firm and in Courts Administration will connect. By far the greatest portion of the documentation which must be dealt with in the system is generated in, or at least comes to the Court through, the lawyers' offices in a seemingly never-ending flood -- pleadings, notices, affidavits, discovery transcripts, exhibits, reports, motion and application records, trial records, case books, memoranda of argument. With an appropriate software program, coupled where necessary with electronic imaging technology, this documentation can be transformed into electronic data and used, organized, searched, stored, retrieved, collected and transferred with the strokes of a few keys. Transcripts and written arguments can be provided to judges on diskette. Documents already filed can be gathered and re-used for subsequent court proceedings without the need to re-copy, re-collate and re-file them. Judges, lawyers and administrators can have ready access to them once they have been electronically filed in the court data base.

      Here, again, the compatibility of technology is critical.

      The electronic exchange of information, including the issuing and filing of material and access to court calendars or lists, is of added importance in areas such as Northern Ontario where distances from court locations define many of the problems. In many areas lawyers are required to forward their material to agents in the community where the Court is located. The agents attend to the filing requirements and charge the law firms for their services. These costs are passed on to their clients, as disbursements. An electronic environment would eliminate such costs.

      Video conferencing is also a technology with great potential for the practice of law in such areas, particularly for motions and pre-trials. There appears to be a general acceptance amongst the members of the Bar to experiment, at least, with the use of such techniques.

      In the end, technology will prove to be successful amongst lawyers, administrators and judges when it becomes "user driven", that is, when tangible benefits are seen to occur and the enthusiasm arising from those benefits creates, in turn, broader acceptance of the system. It is important for members of the Bar, the Administration and the Judiciary to develop a shared sense of ownership and responsibility for the development of the kind of "technology environment" which is necessary to enable the civil justice system to function effectively in the modern age, for the benefit of the public. There is much expertise in each of these sectors. It should be pooled co-operatively, rather than employed in a disjointed fashion in order to ensure that systems compatability is achieved.

      The public must be involved as well. A proper technology foundation is a vital element for their civil justice system. The various techniques of modern technology referred to earlier in this Chapter will facilitate the broader dissemination of information about the court system, generally, to the public and enhance their direct communications with court offices. Participation by members of the public in the development of that system, will breed acceptance and support of it.

      18.5 REVENUE GENERATION, COST SHARING, AND COST AVOIDANCE

      The introduction of technology solutions creates opportunities for revenue generation and for government/private enterprise "partnering" of ventures to implement the technology. It also creates the capacity for significant cost avoidance.

      Potential exists for the sale of standardized software applications developed by government, or by government/private enterprise partnerships, to law offices and to large retail corporations, the media, and various credit agencies -- to name only a few possibilities -- to provide on-line access to that part of the court data base which is in the public domain. Such enterprises already resort to the public information in court files for their own business purposes, but must do so through the laborious and cumbersome method of attending at court offices and culling through the files.

      In today's manual environment it is very difficult to make the large amount of public information which is contained in court files broadly available. In an electronic environment, however, tracking, locating and distributing information about the contents of files, precedents, decisions and calendar events for a fee -- even by remote fax/modem access -- can become very feasible.

      Kiosk and touch tone telephone services can be made self-funding through the implementation of modest user fees.

      Service fees can be attached to the use of the system by law firms, either on a per time basis or by way of periodic advance fees for monthly or annual access, similar to the access availability currently provided for by the Automated Writ System regarding executions registered against properties.

      With the use of electronic account debiting or electronic deposits, the Government will receive the additional advantage of having its fee revenues deposited immediately to the Consolidated Revenue Fund. At present there is unavoidable delay in the making of such deposits -- even when done on a daily basis -- where staff are required to make physical bank deposits. When the funds are deposited automatically, and immediately, the additional revenues generated in the form daily interest payments can be very susbstantial, on a Province-wide basis.

      Perhaps the greatest benefit flowing from the introduction of technology solutions to the operation of the civil justice system, however, is that of cost avoidance. Re-thinking the way the business works, and making changes accordingly, can in itself provide financial savings for the system. The introduction of computer and electronic technology, though, has the potential -- in addition to improving service -- to reduce costs relating to paper handling and storage, and relating to the organization of staff, dramatically.

      Much of the initial cost of introducing some of the hardware and software applications necessary to create the technology environment we envision, can be blunted, we believe, through government/private enterprise partnerships or joint ventures. Considerable opportunity for revenue production lies in the creation and operation of these systems. Considerable talent and expertise exists in both Government and private enterprise to exploit such opportunities. We believe that there will be extensive interest in the private sector to participate with Government in doing so.

      A precedent already exists for this sort of approach in connection with Ontario's Automated Writ System.

      18.6 CRITICAL NEXT STEPS

      1. Implementation of the Technological Infrastructure

        RECOMMENDATION

        We recommend that the technological infrastructure -- including network systems, hardware equipment, software applications, and provision for adequate training -- be put in place in Ontario to enable the civil justice system to operate on the basis of:

        • the electronic filing of documents by lawyers, by members of the public, and by other agencies
        • the electronic exchange of information as needed between lawyers, court offices, the judiciary, the public
        • the ability to provide data in courtrooms and the ability to provide electronic inquiry
        • electronic imaging, to supplement these features
        • video conferencing available provincially for specific types of hearings such as motions and applications, pre-trials and case management meetings
        • data entry at initial source
        • fees paid through automated account debit or credit card
        • automated information centres
        • kiosk access for the public

        Chart 3 is a graphic depiction of the way such a system might operate.

        RECOMMENDATION:

        We further recommend that, as part of the implementation program for this techological infrastructure, the Ministry continue, and expedite, its current initiative in the expansion of network facilities across the Province.

        We recommend that these initiatives be implemented over a period of 5 - 7 years. Planning must include the need for flexibility to accomodate future advances in technology.

        There will be costs associated with this proposal, both with respect to its initial implementation and with respect to the training of personnel which must accompany that implementation. Those costs, however -- as we have pointed out elsewhere -- will be more than offset by savings and by improved effectiveness in the system. They are outweighed by the advantages of proceeding.

        Those advantages include:

        • remote access by lawyers, members of the public and agencies
        • reduction in the volume of paper that must be handled and stored at court locations
        • the ability to transfer file contents to courtrooms for use in court, and to other remote terminals where available
        • remote inquiry access by users and clients
        • reduction in the amount of cash receipts kept on court premises and an increase in the amount of daily interest earned on deposits received by the Court
        • reduction of the cost and trouble of cheque production for lawyers
        • the capture of ad hoc documents not available in electronic format, using electronic imaging and scanning techniques
        • 24 hour access
        • video conferencing
        • data entry at source, thus eliminating internal data entry by staff and the errors and time delays attendant to that manual process
        • remote access to public through kiosks
        • automated information centres
        • the ability for immediate on-line update of information

        At the end of the day, the Court will be more streamlined and effective, and will be up-to-date and compatible with the private sector. It will be in a much better position to be able to continue to advance and to adapt to what is going on elsewhere. This will have advantages not only internally and in its dealings generally with the legal sector, but also in its dealings with other elements in society such as the media.

      2. The Need for a Separate Dedicated Support Team

        Continued support and service are prerequisites to an effective technology system. As the Operating Manager in charge of the software program used in the case management pilot projects has noted:

        "Whatever system is chosen or developed, it is important to remember that support for the hardware and software once it is installed is critical. Unfortunately, the systems work does not stop once the system is up and running. There are always problems and changes which require a systems officer's expertise. Therefore planning for ongoing systems support is essential." [168]

        In our opinion the mechanism which is put in place to support and service the needs of the Court's technology infrastructure should be separate from that of other parts of the Ministry, and from that of other Ministries. The support team should be dedicated to responding to and meeting the needs of the civil justice system.

      3. Evidentiary Changes and Changes to the Rules of Civil Procedure

        Changes will be required both in the areas of the rules of evidence and the Rules of Civil Procedure to accomodate the changes to be introduced in technology. These changes will include matters relating to the service, filing and proof of documentation.

        They are important.

        Equally important is the need to ensure that the reproduction, recording, retrieval and storage technology implemented is accurate and reliable. The reproduced images must be capable of being accepted as authentic and as evidence of the original court copy, exhibit or other document, as the case may be, or as an accurate copy of the original.

        RECOMMENDATION

        We recommend that a special committee be struck, to work with the Rules Committee, in conjunction with the Implementation Team, to examine these issues and to make recommendations for the implementation of evidentiary and rules changes necessary to accompany the technology changes to be implemented.

      4. The Need for Training

        We have emphasized the need for training on other occasions throughout this Report. We emphasize it again in the context of this section, because of its importance.

        Operational, systems and planning staff cannot function properly in a technological setting without training, nor can the system be utlized to it potential. Both of these inefficiencies lead to inevitable frustration, unnecessary skepticism about the system, and increased costs. Ultimately the expense of training must be incurred in any event.

        This, as we have previously noted, is one of the most important lessons to be learned from the case management pilot projects.

        Judges, too, must receive training in how to use computers, and in how to them as computers. Otherwise, there is a risk that they will simply become expensive typewriters, or at best expensive wordprocessors. Judges need to receive training which will enable them to use their computers as tools to enhance their abilities to preside effectively, to do research, to prepare their decisions, and to manage their caseloads.

        Once judges and staff become familiar with the use of computer technology -- and more and more of them gradually become "hooked" on it -- their support and enthusiasm will, in turn, stimulate the better use of technology and, with it, an improved and more effective workplace.

      5. Systems Security

        Systems and data security is a major concern when working in an electronic environment, as is privacy of personal data and information. Because of the distinctive nature of the justice system -- and, in particular, the need to preserve judicial independence and the need to preserve the confidentiality of the judiciary's work process -- this concern takes on an added dimension in the context of the court system.

        Several levels of security alternatives are now available to preserve system and data security. They include passwords, encryption and partitioning technology, and layers of network and application security.

        Continuing and rapidly improving developments in these areas are important. Multi-user hardware systems and software applications, cutting across differing segments of the justice system, are the likely imperatives of the economies of technology. They save duplication of systems and, more importantly, of costs.

        Court technology cannot be designed and implemented in isolation from these demands for systems harmonization. At the same time, however, the Court must preserve its independence in the justice system. Can this be done in a multi-user system which, because of the dictates of size, will be driven and controlled by the major litigant in the courts -- the Attorney General and her Crown law officers -- by the police and by correction officials ? Can the security and confidentiality of the judiciary's communication links be absolutely ensured, in such a system?

        These questions will require very thorough and careful consideration.

      18.7 OTHER RECOMMENDATIONS

      Multi-media technology is far too complex and technical for the Civil Justice Review to be in a position to devise specific proposals for the implementation of an appropriate technology infrastructure for the civil justice system. It will be necessary to call upon the expertise and knowledge of people from all constituents in the system for that accomplishment. Much co-ordination and planning will be necessary.

      RECOMMENDATION:

      We accordingly recommend that a Courts Technology Committee be established with a mandate to develop specific proposals for the implementation of technology solutions for the civil justice system. This Committee should be comprised of representatives from the Judiciary, the Ministry of the Attorney General, the Bar and the Public. It should be ready to release its proposals within a period of 9 months. Its terms of reference will include the following:

      1. The Committee will determine the optimum solution for the implementation of technology for Ontario's civil justice system, in accordance with the following criteria:
        • the system must be cost effective
        • it must support the implementation of caseflow management
        • it must provide the infrastructure for a new management information system
        • it must provide appropriate training opportunities and facilities for users of the system
        • it must enhance public access to the system
        • it must ensure integrity of the court record
        • it must be responsive to the unique needs of the judiciary
        • it must be viable into the 21st century
        • it must be able to integrate data and process information from all parts of the justice system -- Bar, Bench, Ministry, Police, Corrections and others -- while at the same time not threatening the principles of an independent judicary
      2. The Committee will determine the costs of acquiring the necessary technology, and will identify funding opportunities and develop the necessary business case in support of the required funding.
      3. The Committee will work, through a special sub-group, to identify the requirements for an effective management information system, and to develop the means to implement such a system.
      4. The Committee will develop a detailed province-wide implementation plan, to be spread over a period of 5-7 years and will work with the Rules Committee to ensure that appropriate changes are implemented to the Rules of Civil Procedure to enable the technological changes to work effectively in practice.


      Footnotes:

      [156] Alfred Lord Tennyson

      [157] Professor F. Lederer, Cancellor Professor of Law at the Marshall-Wythe School of Law, College of William and Mary, Virginia, and Director of Courtroom 21, "The Courtroom of the 21st Century Today" at Williamsburg, Virginia

      [158] Information Technology Integration Project Report to the Senior Management Committee of the Ministry of the Attorney General, July 1994

      [159] Integration Technology Project Report to Senior Management Committee of Ministry of the Attorney General, July 1994

      [160] Sir Josiah Stamp, English Inland Revenue Department, 1896-1916

      [161] Rule 37.12; Rule 38.12

      [162] Rule 50.08

      [163] From the article, Is Paperless Law Firm Just a Pipe Dream?, The Lawyers Weekly, 14:24, October 28, 1994, pg. 13

      [164] As to this, and as to video conferencing generally, see John Arnstein and James D. Goodwin, III, "The Technology of Video Conferencing", Session No. 401, Fourth National Court Technology Conference (CTC4), National Centre for State Courts, October 1994 [hereinafter "Arnstein & Goodwin"]

      [165] Arnstein and Goodwin, supra.

      [166] Submission to the Civil Justice Task Force from the Technology Committee of the Ontario Court of Justice (General Division), November 1994.

      [167] Hon. M.E. Donohue, Judge, Superior Court of the State of Washington, at a Session entitled "Technology at the Bench" (Session No. 203), Fourth National Court Technology Conference (CTC4), National Centre Centre for State Courts, October 1994.

      [168] G. Carson, Manager, Operational Planning, Ministry of the Attorney General: Report to the Civil Justice Review regarding the Sustain Software Program, November 1994.