The Chief Justice Reports: The Supreme Court to go digital in 2016 and other information of interest

The Chief Justice has issued his annual report. He announced that the Supreme Court will go to a digital filing system in about a year. Be still my heart! While the digital filing system will still require paper submissions, a silly and unnecessary requirement, the Chief Justice clearly recognizes the importance of adopting a digital platform for the sake of transparency.  Why the Supreme Court will apparently have a filing system that is different from CM/ECF puzzles me. I wonder why the Court thinks it necessary to go it alone. Will the Court’s system be able to “talk” to the CM/ECF system maintained by the Courts of Appeal?

By the way: Mr. Chief Justice, can uploading audio and video recordings of oral arguments to your new system be far behind? As the Borg says, resistance is futile!

Fair Use claim.

There are other interesting bits of information in the report including the Chief’s wry discussion of pneumatics. The entire report, including the Appendix dealing with filing numbers, deserves your attention. So, I reproduce it below.

EMBARGOED until 6 p.m. E.S.T.

December 31, 2014 (No wires, TV, radio, Internet, or other formats before 6 p.m. E.S.T.)

For further information, contact the Public Information Office

202-479-3211

2014 Year-End Report on the Federal Judiciary

On November 10, 1893, the Washington Post identified an emerging technology that was reshaping American society: Pneumatics! The miracle of compressed air had led to the creation of new contraptions, including pneumatic tube systems that relied on air compressors to transport cylindrical containers hundreds of feet within buildings. Pneumatic tube systems had found favor in banks and department stores, enabling clerks to transmit documents rapidly from one office to another. Noting this and other applications of pneumatics, the Washington Post lightheartedly proclaimed, “The present era is likely to be known to history as the pneumatic age.”

News of this dawning era was slow to reach the Supreme Court. It was not until 1931 that the Marshal of the Court proposed installing a pneumatic tube system in the Courtroom for the benefit of the press.

Architect Cass Gilbert incorporated that technology into the design of the

Court’s current building, concealing the gray metal tubes behind mahogany desks and beneath the marble floor.

When the Court opened the doors of its new Courtroom in 1935, it also revised its procedure for issuing decisions. Under the new “hand- down” protocol, immediately before a Justice announced a decision in the Courtroom, the Clerk of the Court directed messengers to hand copies to a small group of journalists stationed in front of the bench. The journalists then dispatched the copies through the pneumatic tubes to their colleagues in the press booths one floor below, saving the messengers dozens of steps and precious minutes in communicating the news of Court actions.

For thirty-six years, virtually all of the Court’s decisions reached the press through those portals. A notable exception was the Court’s 1954 decision in Brown v. Board of Education. Chief Justice Warren made a point of delaying delivery of his short opinion until he had read it in full in open Court. But not even things gray can stay, and the venerable steel hardware ultimately outlived its usefulness. In 1968, John P. MacKenzie, the Supreme Court reporter for the Washington Post, described the Court’s process of transmitting decisions as “perhaps the most primitive . . . in the entire communications industry.” The Court’s pneumatic age ended in 1971, when Chief Justice Burger authorized the removal of the pneumatic

tube system at the same time that he introduced the Court’s familiar curved bench.

The Washington Post’s celebration of the marvels of pneumatics, followed by the Supreme Court’s belated embrace and overdue abandonment of a pneumatic conveyance system, illustrates two tenets about technology and the courts, one obvious and the other less so. First, the ceaseless growth of knowledge in a free society produces novel and beneficial innovations that are nonetheless bound for obsolescence from the moment they launch. No one should be surprised that the same surge of creativity that pushed courts from quills to hot-metal type will inevitably propel them past laser printers and HTML files as new technologies continue to emerge. Second, and perhaps less evidently, the courts will often choose to be late to the harvest of American ingenuity. Courts are simply different in important respects when it comes to adopting technology, including information technology. While courts routinely consider evidence and issue decisions concerning the latest technological advances, they have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations. In this year-end report, I would like to describe progress the courts have made in taking advantage of information

technology, recognizing that the courts will always be prudent whenever it comes to embracing the “next big thing.”

Article III of the Constitution specifies the distinctive role of the federal courts, which sets the judiciary apart from other private and public institutions. Article III invests the federal courts with a strictly limited power, and responsibility, to decide prescribed categories of “cases” and “controversies.” Under our constitutional scheme, the courts are neutral arbiters of concrete disputes that rely on parties with genuine grievances to initiate the process and frame the issues for decision. The courts’ passive and circumscribed role directly affects how courts deploy information technology. The courts understandably focus on those innovations that, first and foremost, advance their primary goal of fairly and efficiently adjudicating cases through the application of law.

As one example, the courts have integrated computer-assisted legal research into their case resolution process. Judges and clerks once spent countless hours in the law library, poring through law books and indices just to find the law. They now have access to extensive legal databases and can quickly locate relevant authority through search commands on desktop computers, tablets, and mobile devices. The federal judiciary has likewise modernized courtrooms to take advantage of technological innovations in

exchanging information and ideas. Attorneys can rely on computer-assisted graphics, video, and other technological aids to introduce evidence and facilitate communications with judges and juries. But perhaps most important, the courts have deployed new technologies to automate the filing, acceptance, and retrieval of the vast inflow of litigation documents that reach the courts every day. Throughout the country, clerks’ offices have revolutionized case docketing and administration through electronic case filing and case management—known within the federal courts as “CM/ECF.”

True, in today’s high-tech world, the idea of CM/ECF may seem to some mundane. In the realm of computer science, electronic case filing cannot rival the dazzling design technologies that empower engineers, or even the vivid gaming technologies that entice adolescents and the young-at- heart. Nevertheless, CM/ECF is vitally important to the cause of justice because it can make the courts more accessible, and more affordable, to a diverse body of litigants, drawn from every corner of society, who often enter the courthouse reluctantly, apprehensively, and only as a last resort.

As members of the legal profession know, the basic concept of CM/ECF is simply stated: A litigant, through a lawyer or as a

self-represented party, can file documents using the Internet by logging onto

the system, entering basic information about the case, uploading the document for filing, and submitting it to the court. But the nationwide implementation of CM/ECF—which has restructured operations of the entire federal court system—was no modest feat. The federal judiciary began design of the architecture in the 1990s and began implementation in 2001.

CM/ECF currently contains, in aggregate, more than one billion retrievable documents spread among the 13 courts of appeals, 94 district courts,

90 bankruptcy courts, and other specialized tribunals. More than 600,000 attorneys have filed case documents using CM/ECF, and they currently file electronically more than 2.5 million documents each month.

But this system is not limited to attorneys. By logging onto the Public Access to Court Electronic Records (PACER) system, and paying a modest user fee—in many cases, no fee—members of the public from Alaska to Florida can instantly access and review federal court filings located in courthouses across the Nation. PACER has enabled thousands of reporters, academics, and members of the public to find court records in a way that would have been impossible before the advent of CM/ECF.

The Administrative Office of the United States Courts is currently in the midst of developing its “Next Generation” CM/ECF system, which will increase the functionalities of the system for both bench and bar. For

instance, the enhanced system includes a “central sign-on” feature that will allow court users and attorneys to file and retrieve information in any federal court using the same login and password, greatly simplifying access to the system. Future development efforts will provide automatic calendaring notices to interested parties that will improve access to court proceedings while minimizing scheduling conflicts. Other new features are designed to increase efficiency and ease of use, saving time for judges, court staff, and other system users.

The Supreme Court is currently developing its own electronic filing system, which may be operational as soon as 2016. Once the system is implemented, all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website. Initially, the official filing of documents will continue to be on paper for all parties in all cases, with the electronic submission an additional requirement for parties represented by attorneys. Once the system has operated effectively for some time and the Supreme Court Bar has become well acquainted with it, the Court expects that electronic filing will be the official means for all parties represented by counsel, but paper filings will still be required. Parties proceeding pro se will continue to submit

documents only on paper, and Court personnel will scan and upload those documents to the system for public access. The Court will provide more information about the details of the system, including the process for attorneys to register as authorized filers, in the coming months.

These new systems are important steps forward. Indeed, the federal judiciary’s CM/ECF system was pioneering technology when it was introduced, and it remains the premier model among court systems around the world for electronic case management. Nevertheless, the federal courts, including the Supreme Court, must often introduce new technologies at a more measured pace than other institutions, especially those in private industry. They will sometimes seem more guarded in adopting cutting-edge innovations, and for good reason, considering some of the concerns that the judiciary must consider in deploying new technologies.

For instance, the federal courts, like other government institutions, are subject to the federal procurement process, which understandably sacrifices speed in favor of fair procedures for commercial hardware and software vendors to compete for the government’s business. Courts are likewise subject to the federal appropriation process. Congress faces the difficult task of developing a budget for the entire government, and legitimate

disagreements over funding priorities can complicate the planning of nationwide computer system upgrades and roll-outs for the judiciary.

The federal courts, however, also face obstacles that arise from their distinct responsibilities and obligations. The judiciary has a special duty to ensure, as a fundamental matter of equal access to justice, that its case filing process is readily accessible to the entire population, from the most tech- savvy to the most tech-intimidated. Procedural fairness begins in the clerk’s office. When deploying CM/ECF, the judiciary must make sure that its operating instructions are clear, its applications and dashboards are intuitive, and its systems are compatible with a broad range of consumer hardware and software. Unlike commercial enterprises, the courts cannot decide to serve only the most technically-capable or well-equipped segments of the public.

Indeed, the courts must remain open for those who do not have access to personal computers and need to file in paper, rather than electronic, form.

The courts also have important security concerns that must be satisfied before new systems go live and continuously throughout their operational life. Litigation often involves sensitive matters: Criminal prosecutions, bankruptcy petitions, malpractice suits, discrimination cases, and patent disputes may all lead to the collection of confidential information that should be shielded from public view to protect the safety of witnesses,

the privacy of litigants, and the integrity of the adjudicatory process. Courts understandably proceed cautiously in introducing new information technology systems until they have fairly considered how to keep the information contained therein secure from foreign and domestic hackers, whose motives may range from fishing for secrets to discrediting the government or impairing court operations.

The federal judiciary also faces implementation challenges in light of its conscious decision to maintain a decentralized system of organization.

For 225 years, since the enactment of the Judiciary Act of 1789, the federal courts in each state have exercised a fair degree of operational independence to ensure that they are responsive to local challenges, capabilities, and needs. The individual courts have had considerable latitude to experiment with new technologies, which has led to some courts initiating local innovations.

When the Administrative Office plans a nationwide initiative, such as Next Generation CM/ECF, it must devote extensive resources to conferring with judges, court executives, and lawyers across the country, examining what has worked on a local basis, and identifying features that should be adopted nationally. These deliberations ensure that the implementation of a national system takes due account of local experience, including both successes and failures.

Federal judges are stewards of a judicial system that has served the Nation effectively for more than two centuries. Like other centuries-old institutions, courts may have practices that seem archaic and inefficient— and some are. But others rest on traditions that embody intangible wisdom. Judges and court executives are understandably circumspect in introducing change to a court system that works well until they are satisfied that they are introducing change for the good.

As technology proceeds apace, we cannot be sure what changes are in store, for the courts or society generally. Innovations will come and go, but the judiciary will continue to make steady progress in employing new technology to provide litigants with fair and efficient access to the courts.

The sculptures that adorn the Supreme Court provide a reminder of that resolve, a resolve that has outlived the Court’s long-gone pneumatic tube system. The often overlooked east pediment, installed on the rear portion of the building, features images of historic lawgivers and other symbolic figures. It is flanked by imagery drawn from a well-known fable: A hare on one side sprints in full extension for the finish line, while a tortoise on the other slowly plods along. Perhaps to remind us of which animal won that famous race, Cass Gilbert placed at the bases of the Court’s exterior

lampposts sturdy bronze tortoises, symbolizing the judiciary’s commitment to constant but deliberate progress in the cause of justice.

I am privileged and honored to be in a position to thank all of the judges, court staff, and judicial personnel throughout the Nation for their continued excellence and dedication. I wish to extend a special thanks to District Judge John Bates, who will step down on January 1, 2015, as Director of the Administrative Office of the United States Courts and return to his duties as a United States District Judge for the District of Columbia. The judiciary has benefited enormously from his wise counsel, strong leadership, and steadfast commitment to the cause of justice. I am grateful for his service.

Best wishes to all in the New Year.

Appendix Workload of the Courts

In 2014, caseloads held steady in the U.S. district courts and probation offices, but decreased in the U.S. appellate courts, bankruptcy courts, and pretrial services system. Total filings for civil cases and criminal defendants in the district courts grew less than one percent to 376,536, with civil cases increasing four percent while filings from criminal defendants decreased 11 percent. The number of persons under post-conviction supervision rose nearly one percent to 132,858. Filings in the regional courts of appeals fell three percent to 54,988. Cases opened in the pretrial services system declined eight percent to 100,068. Petitions filed in the bankruptcy courts dropped 13 percent to 963,739.

The Supreme Court of the United States

The total number of cases filed in the Supreme Court decreased from 7,509 filings in the 2012 Term to 7,376 filings in the 2013 Term, a decrease of 1.77 percent. The number of cases filed in the Court’s in forma pauperis docket decreased from 6,005 filings in the 2012 Term to 5,808 filings in the 2013 Term, a 3.28 percent decrease. The number of cases filed in the Court’s paid docket increased from 1,504 filings in the 2012 Term to 1,568 filings in the 2013 Term, a 4.26 percent increase. During the 2013 Term,

79 cases were argued and 77 were disposed of in 67 signed opinions, compared to 77 cases argued and 76 disposed of in 73 signed opinions in the 2012 Term. The Court also issued six per curiam decisions during the 2013 Term in cases that were not argued.

The Federal Courts of Appeals

In the regional courts of appeals, filings decreased three percent to 54,988. Appeals involving pro se litigants, which constituted 51 percent of filings, declined three percent. Total criminal appeals fell eight percent.

Appeals of administrative agency decisions dropped 16 percent. Bankruptcy appeals fell 14 percent. Total civil appeals increased one percent.

The Federal District Courts

Civil case filings in the U.S. district courts rose four percent to 295,310. Cases involving diversity of citizenship (i.e., disputes between citizens of different states) increased 13 percent, mainly because of growth in personal injury and product liability filings.

Cases filed with the United States as defendant fell five percent, mostly because of reductions in prisoner petitions and Social Security cases. Filings with the United States as plaintiff declined 14 percent as cases involving contracts and cases involving forfeitures and penalties decreased.

Filings for criminal defendants (including those transferred from other districts) dropped 11 percent to 81,226. Excluding transfers, fewer defendant filings were reported for all types of major offenses. Defendants charged with drug crimes declined 14 percent. Defendants prosecuted for immigration violations fell eight percent, with the southwestern border districts accounting for 77 percent of national immigration defendant filings.

Defendants accused of property offenses (including fraud) decreased 11 percent. Reductions also occurred in defendants charged with firearms and explosives crimes, sex offenses, traffic offenses, and violent crimes.

The Bankruptcy Courts

Filings of bankruptcy petitions decreased 13 percent to 963,739.

Fewer petitions were filed in all bankruptcy courts but one (filings rose three percent in the District of Puerto Rico). Consumer (i.e., non-business) petitions declined 13 percent, and business petitions dropped 19 percent.

Bankruptcy petitions fell 15 percent under Chapter 7, 20 percent under Chapter 11, and nine percent under Chapter 13.

After the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 took effect, a steep reduction in bankruptcy petition filings occurred. Filings thereafter rose from 2007 to 2010, but have fallen in each of the last

four years. The total for 2014 is 40 percent below the total for 2010, and the lowest total since 2007.

The Federal Probation and Pretrial Services System

The 132,858 persons under post-conviction supervision on

September 30, 2014, was nearly one percent above the total one year earlier. Persons serving terms of supervised release after leaving correctional institutions grew two percent to 111,585 and amounted to 84 percent of all persons under supervision.

Cases opened in the pretrial services system in 2014, including pretrial diversion cases, decreased eight percent to 100,068.

 RGK

16 responses

  1. While the digital filing system will still require paper submissions, a silly and unnecessary requirement,

    I had an idle thought about this.
    What if the Court offered to go into the printing business and said, “If you pay us to print the required paper copies, no need to submit on paper as well,” and then offered a reasonable charge to reproduce briefs.

    Would that be an effective incentive for parties to pay the Court’s reproduction fee and reduce the whole hassle of physical delivery on top of the hassle of physical printing?

    Then one could imagine the Court slowly reducing the number of paper copies it prints if various justices’ chambers decide they don’t need/want them. Or not.

    On the substance of the report, I was pretty disappointed that it took the entire report to say only one thing, and one thing that was not very remarkable. At least the SCOTUS system will be totally free, but I’m pretty skeptical of the Chief’s repeated claim that “in many cases, no fee” is paid for PACER.

  2. John,

    Yes, I think your suggestion about paying printing fees is a better response. Let me tell you a secret though: Judicial assistants (secretaries) or Clerk’s office staff fear extra work! That’s what is really going on. Not cost. The even better solution is for judges and clerks to get used to printing their own copies or using tablets like I-thingy/Chromebooks etc., rather than printed copies.

    All the best.

    RGK

  3. Your Honor: I let rhetoric get away from me. I didn’t mean the Court would actually make the copies, just farm out the copying to a local copy shop (excuse me, “Printer”), that would get orders electronically and deliver all the bound briefs, properly colored, the same day.

    I don’t want to suggest electronic briefs are always better than printed copies. Sometimes they are, but sometimes they’re not. Paper is fully random-access and supports specialized annotation features including tearing and coffeecup rings, and rarely fails the prepared in the middle of a hearing. The idea is to let the Court do what it wants (and giving them the cover to do so) on the timescale it wants…

  4. Quill and parchment were good enough for John Marshall. And submitted briefs were briefer then, too. And so were published opinions.

    Eric Hines

  5. If this account (Aaron Greenspun’s account of the printing requirements to file a cert petition with the Court, in case linking is disabled here) accurately represents the printing requirements for filing at the Court, I’m not so sure that electronic filing is harder than filing on paper, as the Chief Justice makes it out to be as to some petitioners. Of the (financial and otherwise) expenses involved in filing a case (not to mention its having been appealed and defended once or twice already), getting access to a computer to create an electronic version of a document is surely one of the smallest. (Prisoners physically restricted from access to a computer excepted, to be sure — that problem is one of our judicial system’s own making, requiring a corresponding mitigation.)

  6. John,

    Sure, it could be farmed out. But, in truth, there is no need for that. With high speed copying and scanning now readily available, the Court’s staff could easily do it. For pro se filings, and we get a ton of those (I manage the pro se docket for our court), it is an easy matter to scan and file the PDF copy.

    Digital filing should be designed to make it easier for the litigants. It can be done if the processes are examined from the viewpoint of the litigant rather than the Court.

    All the best.

    RGK

  7. Jeff,

    I agree. As noted above, it is a matter of the Court designing the “paper” flow in such a way that it is easier for the litigant. Ultimately, paper is almost completely unnecessary and virtually every federal district in this nation has proven that almost without exception. And, not to be nasty, a medium sized federal district court files many more things each and every day than does the Court.

    All the best.

    RGK

  8. It is curious how things change as you go up the appellate chain. In some ways they are better (e.g. free access to Supreme Court docket metainformation now, and free access to the briefs in the forthcoming system), but in some ways they are worse.

    In my home Circuit, the First, appendices to briefs are not filed electronically. In fact their electronic filing is barred by local rule (!).
    [See Rule 1(e) of Administrative Order Regarding Case Management/Electronic Case Files System (“CM/ECF”); Rules Governing Electronic Filing at http://www.ca1.uscourts.gov/sites/ca1/files/AdministrativeOrder.pdf%5D.
    I do feel newly inspired to try to find out the reasoning behind the prohibition. (Does anyone know?)

    As for high-speed photocopiers, I’m not sure they’re in a good position to to meet the Court’s Rule 33 requirements for 6 1/8″-by 9 1/4″ booklets with 10 different colors of cardstock covers and perfectbinding (if you haven’t read Aaron Greenspan’s blog post, linked above, you should. It’s quite a hoot, even though I’m not sure the core point — that the Court’s rules are a little silly — is really supported.) But either way, if it’s in house or farmed out, the point is that it’s doable.

  9. It’s not far off, even for practitioners. The first time I sent a brief to the Supremes, it went to Cockle. It went to Cockle because it was the only printer in the US that knew how to do the job. Every other printer looked at me in the same puzzled manner that my dog gives a snake. It cost a fortune, and had to be in Cockle’s hands at least a week early. That brief was filed in 1998. Only Cockle or someone using the same equipment that printed the original Dickens could do the job.

    The next arose from a district using ECF, which it had in 2003. Documents filed in the district and circuit were electronically filed, but not so with the Supremes. The same cute, antiquated rules still applied. Cockle again.

    With the last, I discovered that my local printer could finally do the job. It cost a half-fortune. It was ready in four hours. The process still sucked, but Cockle was gone from my life.

    Pacer/ECF has been around for 11 years. It works. It didn’t work so well in the beginning, but it’s positively current 1990’s technology. The documents get written, converted to pdf, filed and everyone gets served. Law clerks and judges read the prose in wonder and issue decisions, regardless that it gets to them from their own printer and on whatever paper they choose. Decisions are made; orders and opinions appear in lawyers’ email inboxes.

    Why, then, do the Supremes need a completely different system? If we know anything about technology, it’s that new stuff breaks. And, if they get an e-file system, why hold on to the Dickens’ model as a back-up? Do they expect to get the little books by e-file?

    Imagine this: you have a law office. You get to make the rules. Your primary rule is that all dictation must be in person and by shorthand. The final documents must be produced on a Smith Carona.

    How many secretaries do you hire for the year?

  10. While I practice in a state in which all of the appellate courts use electronic filing, the issue of paper copies (both at the state and federal level) is somewhat inconsistent. Appellate courts (I am assuming mostly the appellate judges) still want multiple paper copies of briefs, but each appellate court has a different number that they require. Most trial courts do not want paper copies (although on larger more complex pleadings with multiple paper exhibits, some trial judges ask for us to send a paper copy — when they do so, I just print out the e-filed copy from the court and send it back to them).

  11. Skink,

    You are correct in every respect. By the way, I have my own special rules. After the brief has been e-filed, I demand 3000 copies with flattering photos of me on the cover. They must be hand delivered to my chambers wrapped in red ribbon. I use them for kindling during the winter as I read Dickens next to a blazing brief fueled fire. I am, after all, an Article III judge.

    All the best.

    RGK

  12. I don’t know the specifics of why the Supreme Court will have its own system, but this is a good example of Conway’s Law. Conway’s Law is an adage that any organization that builds computer systems is constrained to build systems that mimic the organization’s communication flows.
    You bump into Conway’s Law after you’ve built a few computer systems; the foolish try to fight it while the bright setup their organization’s communication flows to match the systems they want to build.

  13. Robert,

    I was unfamiliar with Conway’s Law, but one of the things our court did in anticipation of going digital was to look hard on our communication and paper flow. What we found was that our systems were built to deal with “one off” problems or the concerns of a tiny minority who disliked change of any kind. We decided to change that those old ways. I don’t know if the Court has examined how the communication and paper flows. If it hasn’t, it should. Lots could be learned.

    Here is a concrete example. I understand that at present signed memos are hand delivered among the Justices when they wish to communicate with each other about cases. Why e-mail would not serve that purpose equally as well (with numerous advantages, such as automatic archiving) as hand-delivered paper is beyond my limited powers of analysis.

    All the best.

    RGK

  14. Anonymous, You left out thermofax. I miss George Cockle delivering drafts and professional gossip when NE SCt. and 8th Cir briefs had to be printed. This technology is the road to perdition. What joy could surpass the thrill of getting the printed version of the record in Deep Throat, sent to all law profs, and trying to figure out what was going on those tiny prints of the film strips.

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