Members of the judiciary are often perceived as being a little, well, out of touch with the world. As one example, commentators have pointed to Justice Scalia's recent questioning why a V-chip could not be used to regulate the ability of minors to watch violent video games, instead of the 2007 California law that was the subject of the oral arguments. Apparently counsel for the State had to patiently, gently explain that V-chip technology only works in televisions... Nevertheless, jokes at the Justices' expense aside, the world has gone digital and it is inevitable that the judiciary will also be swept along in its wake, in time.
For the past decade, state and federal courts have been investing in and upgrading courtroom technology to meet the needs of lawyers and associated professional in presenting and recording evidence. Increasingly, chalk board or paper pad diagrams are being replaced by digital exhibits displayed on flat-screen judge and juror monitors. Court reporting/transcription is also being digitized.
In the recent ABA Judges' Journal (Fall 2010), Judge William E. Smith of the U.S. District Court for the District of Rhode Island explores the next step, when judicial opinions themselves incorporate today's exciting new media. See "Judicial Opinions and the Digital Revolution." Judge Smith points to the judiciary having "embraced" the use of Internet based sources in their decisions, through hyperlinks. Id., see cites therein. Judge Smith also points to the 2007 U.S. Supreme Court Fourth Amendment case, Scott v. Harris, 550 U.S. 372, as a harbinger.
In Scott v. Harris, the Supreme Court included a link to a video maintained in the Court's Web server and relied upon in making its determination, stating "the court preferred to 'let the videotape to speak for itself.' " While some commentators were appalled by the Courts' linkage of the video, Judge Smith observed that Majority (as well as the Dissent) relied on review of the video-taped police conduct in rendering its decision, and "what better way to describe" the Court's actions in reviewing the case "than to 'run the tape.' " The fact is, appellate bodies routinely review evidence for sufficiency, and there is no reason we should pretend otherwise. There is also no reason the judiciary should not use the technology available to best render its reasoning when it fulfills it review role. As Judge Smith notes, "[a]t a minimum, Scott v. Harris is a recognition and an endorsement by the Supreme Court of the explanatory power of visual and audio evidence."
Now, Judge Smith himself, has gone even further. Confronted with trying to explain highly technical and complex IT matters when he reversed a jury's conclusion of patent infringement, Judge Smith has authored the first judicial opinion in which an expert witness's computerized demonstrative exhibit is combined with the digital recording of the witness's testimony and the entire "movie" then embedded inside the legal opinion itself! Talk about necessity being the mother of invention. See http://www.rid.uscourts.gov/
Judge Smith's article describes some of the technical challenges of his decision, and also forecasts future challenges that will confront courts as they too move into this brave new digital world, including storage capacity of court servers and private databases; the best format to use going forward in light of changing technologies and need for long term preservation of electronic judicial decision; and broader intellectual property complications. Both the embedded movie and his article on it are good "reads," and Judge Smith is obviously quite a visionary. However, as a near-Luddite (or what passes for one in today's post-modern era), I for one hope that as times change, some things will still remain the same and the parties will be able to provide this kind of work-up, if necessary, through their proposed findings!
My next posting will review another, related article in the Fall 2010 ABA Judges' Journal, "Is Primary Legal Information on the Web Trustworthy?," by legal librarians David G. Badertscher and Deborah E. Melnick.
In the meantime if you are interested in moderately tech-savy arbitration, mediation, or contract ALJ services, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com.
