Sacramento Small Claims Goes Paperless

On February 18, 1998, Judge Joe S. Gray, who chairs the technology committee of the Sacramento County Superior and Municipal Courts, impressed the members of the Sacramento Lawyer Computer Users Group (SLUG) with the urgency of what to him is both an organizational mission and a personal quest: to move the courts into the information age. He focused on two topics: paperless courts, and the computer as a decisional tool.

Gray started by recalling earlier law practice days. In 1960, he got his law degree and started practice at a mid-size Sacramento firm: Downey Brand, with under 10 attorneys. Copying was by carbon paper, with an 8-copy ceiling, or by Thermofax. One secretary refused to use an electric typewriter, preferring an ancient Underwood. It could take two years to purchase a dictating machine. (No wonder he moved to Wilke Fleury!).

On the bench, Gray has learned to function largely without secretarial assistance, since the nearest secretary is across the street from his court annex. Trained only in a one-semester high school typing course, he types his tentative rulings directly into SACJIBBS (the Sacramento Judicial Bulletin Board System), and characterizes the tentative ruling database program's built-in text editor as "better than most." He types his other papers; and, to avoid having to address an envelope for them, he faxes them from his desktop.

In this Gray resembles the many small firm practitioners and government attorneys who cannot call on unlimited secretarial support. In his view, technology does not just level the playing field; it is becoming a "great competitive advantage" without whose aid courts and practitioners will become "roadkill on the information highway."

Our profession's bloated appetite for paper may someday be such a casualty. Although predicting paperlessness has been a risky undertaking, the chapter on "Information Technology and Justice" in the 1993 report of the Commission on the Future of the California Courts, handed out at the session, says: "Paper and cash transactions will be virtually unknown by 2020."

To Be Paperless

At his son's wedding, Gray met a federal courts administrator from Washington and broached the idea of a paperless Small Claims court. The administrator, opining that no paperless courts yet existed anywhere in the world, encouraged Gray to "Do It!"

Gray came back home to ask his MIS director, "Why won't this work?" By mid-1995, the County had scheduled and budgeted $250,000 to create a paperless Small Claims court within a year. In the fall of 1995, however, this plan fell victim to a turf war between the County and the State, which, under the state trial court funding scheme, stopped approving court automation projects.

The paperless Small Claims court is scheduled for completion this year. In it, software processes scanned-in court papers; software accounts for incoming fees; software prints out papers to serve and service instructions for the claimant; software keeps the calendar; and software assigns the pro tem judges.

How, one might ask, will this court fulfill its obligation to keep permanent records? The answer: this is not a court of record!

On the Sacramento courts as a whole, Gray said that although they have no automation master plan, they have made progress. Their 600 employees use over 500 computers, with Ethernet connections and a significant amount of fiber optic cabling. The courts have a Web site and have modem access to the Internet, especially e-mail. The master calendar is automated; Gray relies on it to list the matters on his future law and motion calendars. The staff has gone from fearing automation to embracing it as a way to eliminate drudgery.

Gray then plunged into another topic, inspired by the Dissomaster software that calculates property division and support in the family law courts: computer-aided decision making.

Do Litigants Dream of Electric Judges?

Gray looked forward to the day that technology will help with the substance of law practice by making some rules available to everyone in advance of any decision. He envisioned the litigator calling up the Court's database and picking the "deposition witness no-show" topic. The litigator (or litigant pro se) could go through an orderly sequence of questions from a rule-based expert system that would make the outcome of many controversies predictable.

Although people think courts try cases, judicial decisions are a relative rarity. Only 1/2% to 2-1/2% of contested civil cases are decided, and judges are more administrators of the litigation process than deciders of cases, he said. Efficient processing would suggest a search for software solutions.

Gray pointed out that automakers have shortened their model development cycle from four years to one year, and the cycle for computers is even shorter. Why, he asked, should anyone tolerate two years in court?

In addition to the slow process, Gray pointed to litigation's high cost and lack of predictability. He said that fairness should imply deciding like cases alike, but that the role of the courts as social change agents can destroy their predictability. While one would expect a lack of consensus on the relative desirability of the change agent versus the predictable decider, few would want to discard all predictability.

SLUG member Jim Mize brought up a horrendous example of two neighbors who, despite identical facts, received disparate support judgments. One got $200 per month; the other (the one with the more persuasive advocate!) got $2,000. A Dissomaster-style calculation for both would have been fairer according to the predictability criterion. As Gray suggested, if any of Dissomaster's rules are wrong, it can be corrected by either a bug fix or legislation.

There are limits to the reach of a Dissomaster model of decision making. It would seem difficult, given present technology, to emulate in software a decisional process on an issue of relative witness credibility, or an issue of competing legal characterizations. For the credibility contest, given the notorious unreliability of eyewitness testimony, perhaps a random number generator could approach a trial in accuracy, but be faster and cheaper.

Reference

Commission on the Future of the California Courts, Report: Justice in the Balance 2020 (1993), at 101-15

Philip K. Dick, Do Androids Dream of Electric Sheep? (New York: Ballantine Books, 1996)

Nicholas Negroponte, Being Digital (New York: Vintage Books, 1995)