Chapter One

CHAPTER ONE

GENERAL INTRODUCTION

1.0.0 INTRODUCTION

Information technology is one of the most evolution in our era1. The significant change brought by

advancement in information and communication technology is the transformation of medium of

communication from paper to electronic form. Today, information technology has substantially

changed the way we interact, communicate and transact with one another. Across the world, there

have been a profound shift toward an electronic-based society and economy2. Information

Technology is a ubiquitous element that brings about new challenges, along with new possibilities

and expectation. Litigation as one of vital methods in the national and international dispute

resolution mechanism cannot escape these changes. The resistance and skepticism of the past are

fading, and today, law firms and courts recognize the need to adapt to these new developments.

In the past, there have been a lot of improvements as well as innovations in the Court’s procedural

rules3. In addition, in some jurisdiction, information technology has been successfully integrated into

the litigation process with the aim of achieving a just, efficient and speedy dispensation of justice.

With the recent launch of Judiciary Information Technology Policy Document by the former Chief

Justice of Nigeria (CJN), Justice Dahiru Musdapher, the Nigerian judiciary can be said to be getting

ready for full transition from paper based to electronically based court system usually referred to as

E-court4.

1 Dory R. Technology for Justice How Information Technology Can Support Judicial Reform (Leiden University Press, 2009) p.162 Gorbachev C. Economic Reform in the Age of High Technology (W W Norton & Co, 1987) p. 73 Lord Woolf, a Justice of the Supreme Court of England was appointed by the Lord Chancellor to review the then existing system of Civil Procedure in England. The final report entitled Access to Justice was published in 2004. Available at < www.legco.gov.hk/yr06-07/english/bc/bc57/.../bc570611cb2-1960-e.pdf > accessed on 15 June, 2013.4Ahuraka Isah, CJN Launches Policy Document For E-Litigation, The Leadership newspaper (Nigeria July 11, 2012); available at <http://leadership.ng/nga/articles/29456/2012/07/11/cjn_launches_policy_document_elitigation.html> accessed on 15/7/13

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This study provides a general understanding on how information technology can improve the

administration of justice and revolve some of the major problems faced by the Nigerian judiciary. It

further examines the prospects of IT integration in the administration of justice in other jurisdictions

where electronic litigation system has been successfully implemented with a view to learn from their

experiences. The level of readiness of Nigerian Judiciary and Court users, especially lawyers were

fully analysed. Equally, possible challenges of the introduction of electronic litigation system into

the Nigerian judiciary were also discussed. In whole, this study set forth a kind of roadmap for the

Nigerian Judiciary and law firms to ensure successful introduction of electronic litigation system in

Nigeria.

1.1.0 BACKGROUND TO THE STUDY

The three critical issues many judiciary faces today are delay, access and corruption in the

administration of justice5. These are the three most common complaints of court users around the

world6. Therefore, the common goal of every judiciary has been to improve access to justice, ensure

transparency and speedy dispensation of justice. The past decades witnessed several judicial reforms

towards enhancing access to justice and dispensing quality and speedy justice through improvement

and innovations in the procedural rules of the Courts. These innovations have achieved considerable

success in reducing the caseload. However, more is still desired in the area of access to justice and

transparency. Some jurisdictions like US, Singapore and Australia have taken a step ahead, by

incorporating information technology in their judicial system.

Following suit, Nigeria is preparing for a holistic integration of the information technology in her

judicial system. To this end, the former Chief Justice of Nigeria (CJN), Justice Dahiru Musdapher

launched Judiciary Information Technology Policy Document to prepare the ground for successful

implementation of the electronic court project in the courts across the county.

5 Dory R. Technology for Justice How Information Technology Can Support Judicial Reform p. 176 Ibid p.17

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Experience from other jurisdictions have shown that introduction of the information technology into

courts system does not solve the problem like a magic wand7. The introduction could cause serious

problems if not properly implemented. Therefore, this study appraised how information technology

could be integrated and harnessed to solve major problems in the Nigeria judicial system.

1.2.0 AIMS AND OBJECTIVES OF THE STUDY

The objective of this thesis are;

To provide general understanding on how information technology can support, improving the

administration of justice and revolving major problems faced by the judiciary.

The study will examine in detail, the requirements and the functionalities of the electronic

litigation system in other jurisdictions where it has been successfully implemented with a

view to learn from their experience.

Examine the prospects and possible challenges of introduction of electronic litigation system

into Nigerian judiciary.

The study will attempt to set forth a roadmap for the Judiciary and law firm to ensure

successful introduction of electronic Litigation system in Nigeria.

1.3.0 STATEMENT OF THE PROBLEM/FOCUS OF THE STUDY

The legal practice and the judiciary in Nigeria is yet to employ the full potentials of information

technology in improving the administration of justice.

In Nigeria, there is a general complaint of poor delivery of legal services and delay in the

administration of justice. One of the reasons for this could be that stakeholders in administration of

justice (legal practitioners and judges) are not maximizing the potentials of information technology

tools in improving justice delivery. In addition, research has shown that Information Technology

7 Feasibility Report on Electronic filing Service Provider Model, (commissioned by the Office of the Registrar, Supreme Court of Canada September, 2002). P. 237

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tools are not readily available and accessible in most of the law firms and courts in Nigeria. Even, in

law firms or courts where they are available there are also problems of either non-utilization or

underutilization of Information Technology devises8.

1.4.0 RESEARCH QUESTIONS

In order to achieve the above objectives stated above, the following research questions are

formulated:

1. How could Information Technology tools improve or solve the problems of delay, access to

justice and restore the integrity of courts in Nigeria?

2. What are the functionalities of the electronic litigation system?

3. What are the benefits if any, the integration of information technology in litigation process

and administration of justice in Nigeria tends to achieve?

4. What are the prospects and challenges of introduction of electronic litigation system in

Nigeria?

1.5.0 SCOPE OF THE STUDY

The scope of the study is limited to examination of prospect of the integration of the information

technology in the administration of justice in Nigeria. The study will examine electronic litigation

system in some selected countries and draw lessons therefrom. The information technology in use in

the law firms and courts are only covered by this study. The study is limited to the integration of the

information technology in the civil litigation.

1.6.0 JUSTIFICATION AND SIGNIFICANCE OF THE STUDY

8 Jide Edward Owoeye, ‘information technology availability and utilisation as correlates of lawyers’ productivity in Nigeria’ (Ph.D Thesis, University Of Ibadan, Ibadan, February, 2011 ) p. 102

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Apart from the general complaint of poor delivery of legal services and the delay in the

administration of justice in Nigeria, there is also growing concern on the level of corruption in

Nigerian Judiciary. It is strongly believed that the integration of Information technology into

litigation process in Nigeria will not only enhance the efficiency in the administration of justice, but

also reduce corruption in the administration of justice. This study is relevant especially at a time

Nigeria is at the verge of embracing electronic litigation system and holistic integration of the

information technology in the administration of justice.

1.7.0 RESEARCH METHODOLOGY

This study by designed is a quantitative research i.e it is library based and for this reason, reference is

made to published and unpublished works of legal writers, hard and soft materials, as well as internet

documents. The existing literature on the e-filing system are reviewed. Essentially, the research

methodology adopted in this research is both comparative and analytical. The various sources of

information relied upon in this research as enumerated herein, have been critically appraised,

analysed and compared in arriving at the conclusion reached in this research.

1.8.0 LITERATURE REVIEW

There are indeed numerous materials (textbooks, essays, articles) have been written on the

integration of information technology in legal practice and administration of justice. Essentially, the

relevant literature that becomes necessary to be reviewed are those written on the electronic filing

system in jurisdictions where electronic filing systems have been successfully implemented. A

thematic classification structure was developed to categorize references into each topic. The vast

majorities of references is American and are from profession-related journals that rely heavily on

description rather than analysis. Especially, the books on electronic filing systems developed by

National Center for State Court of United State.

The literature review covered related topics such information technology usage by the legal

profession and courts and ethical issues thereof, electronic litigation system. It was important to gain

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some understanding of the use of ICT tools in law firms and court to gain a comprehensive

understanding of global trend in the delivery of legal service and justice administration. Moreover, it

was as equally important to gain some form of understanding successful models of electronic filing

system around the world.

It would be noted that, one common missing gap in all these various materials, as it is demonstrated

below in their review, is that they have not categorically examined the prospects and challenges of

introduction of electronic litigation system in Nigeria. They have either treated the general trends on

the attitude of lawyers and courts in employing IT in delivery of legal services or justice delivery; or

project into the feasibility of the integration information technology administration of justice or

specifically deals with electronic filing projects in given jurisdiction. Thus, the need for this study is

imperative.

1.9.0 STRUCTURES OF THE STUDY

This work is divided into seven chapters. Chapter one is the introductory chapter. The chapter gives

a brief background of the study and justification for conducting this research. It also highlights

objectives of the Study and among other review some literature on the subject of the study in order

to identifies areas that needs to be addressed in the course of the integration of IT in the

administration of justice in Nigeria

Chapter Two looks at the information technology and the litigation process, the relationship

between information technology and judicial process. It also covers the information technology

used in the law firm and court.

Chapter three provides definition and evolution of the electronic litigation system, it analyses the

functionalities of the electronic litigation system as well as requirements and implementation of the

electronic litigation system

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Chapter four is the comparative analysis of the electronic litigation in some selected countries such

US, Singapore, Canada and Australia. The chapter also draw lessons from the experience of the

selected countries.

Chapter five examines the problems facing judiciary in Nigeria and the need for the introduction of

electronic litigation system in Nigeria. It also appraises the judiciary information technology policy

document for implementation of e-courts in Nigeria litigation system.

Chapter six looks at the prospects and challenges of electronic litigation in Nigeria. And lastly,

chapter seven is the conclusion and it cover findings from the previous chapters; Summary and

Inferences from the Study; and Recommendations.

1.10.0 CONCLUSION

Based on the forgoing, it is clear that the study undergone in this dissertation is very relevant as it

provides necessary guidance for the proper implementation of the electronic litigation system in

Nigeria. Those involved in the administration of justice in the country are better enlightened and

properly guided on what and how information technology could be harnessed for efficient justice

delivery.

It therefore follows that this research provides an all-encompassing insight into the prospects and

challenges of introduction of electronic litigation system in Nigeria.

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CHAPTER TWO

INFORMATION TECHNOLOGY AND LITIGATION PROCESS

2.0.0 INTRODUCTION

We are all experiencing today, a profound shift toward an electronic-based society and economy.9

Information technology has substantially changed the way we interact, communicate and transact

businesses. The most essential of these changes is the sharp increase in international commerce.10

Domestic and international transactions are now largely conducted electronically. Information

Technology is a ubiquitous element that brings about new challenges, along with new possibilities

and expectations. Litigation as one of vital methods in the national and international dispute

resolution mechanism cannot escape the impact of ICT in the administration of justice. The

resistance and skepticism surrounding the integration of ICT in the administration of justice are

fading. Today, law firms and courts have recognized the need to adapt and embrace the use of the

information technology in justice administration.

The relationship between information technology and litigation process in the administration of

justice is integral. This is because of the fact that litigation process is primarily information based. 11

Likewise, administration of justice is an activity that is made up of having information available,

communicating about it, and producing new information.12 For centuries, the litigation process is

predominantly paper-based. Recent advancements in information technology has made it possible to

transmit court processes electronically. This chapter examines the evolution of the litigation process

and how information technology tools could be integrated in the various stages of the litigation

process. The chapter also discusses the use of Information technology in the law firms. The major

complaint about court system is that trial and/or hearing of cases take too long time. There are 9 Gorbachev C, Economic Reform in the Age of High Technology (W W Norton & Co, 1987) p. 7.10 Thomas S, Information Technology and Arbitration, (Cambridge March, 2006) p.111 Dory R Technology for Justice, how information technology can support Judicial reform ( Leiden University Press, 2009) p. 1612 Ibid

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suggestions that the integration of Information Technology in the administration of justice especially

in the running of court business are capable of reducing the problem of delay in the dispensation of

justice. Thus, this chapter discusses the IT support for court system. The chapter concludes by

examining the role of Information Technology in the context of problems confronting administration

of justice in Nigeria.

2.1.0 INFORMATION TECHNOLOGY AND LITIGATION PROCESS

Litigation is a legal proceeding in a court; a judicial contest to determine and enforce legal rights.

Black Law Dictionary defines litigation to mean a law suit, legal action, including all proceedings

therein13. Litigation process involves the resolution of disputes through the court system and the

process starts with the claimant filing and serving of the court processes on the defendant in the trial

court. Litigation process is about the exchange of information by the parties through the court and

their counsels. It also involves presentation of information in a logical sequence by each side before

an unbiased umpire, who will evaluate the information in reaching a decision.14 Information is the

fundamental building block that is present and the focus of attention at almost every stage of the

legal process.15

The entire litigation process is governed by rules of each Court which specify the procedures the

parties must follow from the commencement of the litigation the end of the process. Accordingly,

once a dispute is submitted to the courts for resolution, all parties to the litigation must carefully

follow the Courts procedural rules.

Litigation process consists of four basic stages; 1) information gathering, 2) pleadings, 3) discovery

and motions, as well as 4) trial and post-trial proceedings. Each of the above stages of the litigation

13 Black, Henry Campbell, Blacks law Dictionary, 6the Edition, Centennial Edition, St.Paul Minn. (West publishing Co. 1990), p. 934

14 Susan B, A practical approach to effective litigation by susan Blake seventh edition (oxford University Press 2009) p.715 Ethan M. K, law in a digital world (London, 1995), p.7

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process is now witnessing the integration of information technologies tools. For instance, E-mail, and

instant messaging are used in the first stage to exchange information. In the second stage, Law firms

now use word processing to process court’s processes, store and retrieve of information. Moreso,

litigation support soft wares such as Forensic and e-discovery software are IT tools employ in E-

discovery, in the third stage. Lastly IT tools such image cameral, video conferencing and projector

are now being used during trial for presentation of evidence.16

It is noteworthy therefor that even before the emergence and integration of Information Technology

in the litigation process, there have been a lot of innovations and improvements in the litigation

process towards the achievement of a just, efficient and speedy dispensation of justice.17

The old practice of leading witnesses to give evidence in-chief orally in open court, and oral address

by lawyers have ceased to be the norm as a series of innovations and improvements were introduced

in the litigation process. For instance, the traditional examination in chief has been replaced by

witness written statements on oath or pre-recorded video evidence.18

The new civil procedure rules modify the philosophy of adversarial approach to litigation by

introducing principles of achieving justice through case management otherwise known as pre-trial

conferences and scheduling.19 The purposes of the pre-trial conferences are; disposal of non-

contentious matter which must or can be dealt with an interlocutory application, giving such

directions as to the future course of the action as appear best adapted to secure its just and

16 Dr. Elizabeth Wiggins and Dr. Meghan Dunn ‘Effective Use of Courtroom Technology: A Judge’s Guide to Pre-trial & Trial’ available at www.fjc.gov/public/pdf.nsf/lookup/CTtech00.pdf/$file/CTtech00.pdf accessed on the 13/08/2013.17 For instance, Order 1 Rule 4(2) of the Kwara State High Court (Civil Procedure) Rules, 2005 provides Application of these Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.18 Professor Penny Cooper, ‘The Changing World of Witness Preparation and Witness Evidence: Adapting our traditional approaches to witnesses’ (Keynote Address delivered at the Nigerian Bar Association, Legal Practice Section Conference, Abuja, Nigeria on Tuesday 15th November 2011). P.119 See; Lagos State High Court (Civil Procedure) Rules 2012, Kwara State High Court (Civil Procedure) Rules, 2005, Kaduna State High Court Civil Procedure Rules, 2007, Federal High Court (Civil Procedure) Rules, 2009

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expeditious disposal and prompting amicable settlement of the case or adaptation of alternative

dispute resolution.20

Another innovation in the civil litigation process is the upfront filing the witness statement on oath

and all documents to be used at trial. The old practice of hide and seek or springing surprise on the

opponent are gone. The parties must place all cards on the table at early stage of the litigation

process. That is the parties must accompanying the originating process or defence with all the

evidence they indent to rely upon during trial.21

Frontloading system got its root from Lord Woolf's Access to Justice Reform of 1996 of the United

Kingdom which introduced innovations into the civil justice system in order to make it simpler,

quicker, cheaper, more just and consumer friendly.22 The frontloading system was first imported into

Nigeria by Lagos High Court (Civil procedure) Rules, 2004 of Lagos State.23

The process of conducting litigation is in the middle of a period of massive change. This decade has

witnessed series of innovations and improvements in the civil procedure rules24 and the next decade

is likely to see even more significant change, with the increased use of Information Technology to

provide legal services. It is quite foreseeable that the way in which litigation process are normally

conducted will change quite radically in less than a generation, due to the continue integration of

information Technology in litigation process25. The litigation process, in every jurisdiction, is

transiting from paper based to electronic based by integration of IT into the litigation process.

2.2.0 USE OF INFORMATION TECHNOLOGY IN LEGAL PRACTICE

20 See generally Order 33 of the Kwara State High Court (Civil Procedure) Rules, 2005.21 See generally, Order 2 Rules 2(2) the Kwara State High Court (Civil Procedure) Rules, 200522 Lord Woolf Access to Justice Reform Commission (United Kingdom 2004), Available at <www.legco.gov.hk/yr06-07/english/bc/bc57/.../bc570611cb2-1960-e.pdf > accessed on 15 June, 2013.23 Salmanu Muhammad Rilwanu, ‘A critical appraisal of the front loading justice administration system in Nigeria a case study of the High Court Rules of Kaduna and Kano States’. (LL.M Thesis A.B.U Zaria, June 2012) p.4524 See Lord Woolf access to justice Reform Commission (United Kingdom 2004) Available at < www.legco.gov.hk/yr06-07/english/bc/bc57/.../bc570611cb2-1960-e.pdf > accessed on 15 June, 2013.25 Susan B. A practical approach to effective litigation seventh edition (oxford University Press 2009) p 2

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Law Firms today operate in a hybrid environment of both paper and electronic documents.

Technology has transformed nearly every aspect of the legal profession from methods of

communication, to how lawyers prepare for trial and present cases. Information is now largely

processed, stored, transmitted and retrieved electronically. The legal profession as information

dependent-profession must integrate best suitable information technology tools to handle and process

a tremendous volume data in the information age26.

In the past an average law office had a typewriter, an adding machine, and a duplicating machine of

some type. The law office operation was dominated by paper. File cabinets abounded in the law

office for the storage of case file. However, the new trend is toward eliminating paper in the law

office operation through the use of computer technology and software.27

Susskind has predicted the transformation of medium legal practice and justice delivery from paper

to electronic. He posited that;

Legal practice and the administration of justice will no longer be dominated

by print and paper in tomorrow’s legal settings. Instead, legal system of the

information society will evolve rapidly, under the considerable influence of

ever more powerful information technologies. Legal profession will no longer

suffer from excessive quantity and complexity of legal materials. There will be

a mechanism in place to give every one fair warning of the existence of new

laws and change in the old through the note-up service. Law will become far

more fully integrated with domestic, social and business lives’28.

26 Johnathan Jenkins; ‘What Can Information Technology Do For Law’?, Harvard Journal of Law & Technology, (Volume 21, Number 2 Spring 2008) p. 591 available at < www.jolt.law.harvard.edu/articles/pdf/v21/21HarvJLTech589.pdf > accessed on the 13/8/201327 Scott Adams, Dilbert cartoonist; ‘Technology in the Law Office Technology: No Place for Wimps!’www.gobookee.net/scott-adams-dilber 28 Susskind, R. E. ‘The Future of Law: Facing the Challenges of Information Technology’. (New York: Oxford University Press, 1998). p.42 https://www.mediate.com/Wisdom/.../Future%20Trends_Keystone_06.do.pdf

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The legal profession is slow in keeping pace with the digital revolution as research has pointed out

that change comes slowly to the legal profession, even in the digital age.29 However, legal

professionals have two primary motivations for integrating new information technologies into the

practice of law. First, the volume and diversity of data that lawyers must analyze in the course of

their work have exploded. Second, the efficiency gains in other industries highlight the cost savings

that can be achieved by adopting more sophisticated technology.30

The application of the information technology in Law Office has been classified into five basic

categories thus: (1) client relations and marketing, (2) legal research, (3) word processing, (4)

management and accounting, and (5) litigation support.31 The types of information technology

employed by the law firm and ethical issues arising therewith will be discuss soon.

With regard to the client relations and marketing, information technology has changed the way law

firm procure, communicate and render services to clients. For instance, E-mail has become an

effective tool of communication between lawyers and clients, especially corporate clients or internet

savvy clients. On the impact of electronic communication between law firm and client, Cesar L.

Alvarez, observes,

Technology has created the expectation that attorneys will be responsive to

clients 24/7. At the same time, it has provided flexibility that allows lawyers to

manage their personal commitment while providing clients what they need on

an almost immediate basis’.32

29 Catherine J. Lancott, Attorney-Client Relationship in Cyberspace: The peril and the promise, 49 Duke L.J. (1999) p. 14930 Ayres, Ian. 2007. Data driven decision-making by modern business. In: Harvard Journal of Law Student and technology;20,2: 12731 Craig Calhoun & Martha Copp, Computerization in Legal Work: How Much Does New Technology Change Professional Practice? 4 RES. SOC. WORK 233 (1988); Douglas E. Litowitz, Young Lawyers and Alienation: A Look at the Legal Proletariat, 84 ILL. B.J. 144 (1996).32 See future law office publication containing the Interview granted by Cesar L. Alvarez, executive chairman, Greenberg Traurig LLP, Feb. 15, 2012. Available www.futurelawoffice.com accessed on 1/7/13

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Law firms are increasingly using online knowledge-sharing platforms such as SharePoint to facilitate

collaboration among geographically dispersed legal team. For example, Minter Ellison, an

international Law Firm, introduced a web-based video collaboration tool that combines Cisco

technology with high-definition video, unified computing, real-time social networking and content

management. The purpose was to enable associates in the firm's Australia, Hong Kong, China, New

Zealand and United Kingdom offices to work together more easily.33

A number of online collaboration platforms, such as Firmex, Xerdict and Mavenlink, have been

designed specifically for the legal profession. Firmex features secure, virtual data rooms where

attorneys can perform due diligence, share files, create digital records or exchange documents. Some

lawyers use Xerdict for collaborative case and project management, while others use Mavenlink, an

online platform that features shared work spaces.34

It has been observed, that the type of communication tools law firms should adopted in

communicating with clients has to be client-focused. Dennis Kennedy35, observes that client

requirements have been a key driver of innovation among lawyers. He notes that after initial

resistance by lawyers to the use of electronic communication, email is now an essential tool for client

communication.36 The best approach law firms can take is to ask clients what would help them most

and then base a substantial part of their technology strategy on client-focused initiatives37

Electronic communication with clients involves some ethical issues which lawyers must observed.

These ethical concern involve a wide array of issues, including communications with prospective

33 Banks, Lisa. ‘Minter Ellison Rolls Out Video Collaboration.’ (C/O, July 18, 2011). Available at <www.techworld.com.au/author/19739500/lisa-banks/articles?page=7 > accessed on 13/08/13 34 Black, Nicole. ‘Legal Currents: Cloud-based data backup options for lawyers.’ Available at <www.LegalNews.com> accessed on 1/7/13.35 Dennis Kennedy is an information technology lawyer and legal technology author, who also writes for the ABA Journal and co-hosts "The Kennedy-Mighell Report" podcast, available at <www.futurelawoffice.com> accessed on 1/7/1336 Robert Half Legal, Future Law Office, Technology’s transformation of the law field @ page 2 the publication of Robert Half Legal titled future law office is available at <www.futurelawoffice.com> accessed on 1/7/1337 Ibid p.3

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clients, confidentiality, and the various duties that lawyers must maintain to their clients. Lawyers

must ensure that electronic communications with, or about a client are secure and not accessible to

unauthorized individuals. When communicating confidential information to or about a client,

lawyers should employ reasonably appropriate means to minimize the risk of disclosure or

interception of the information. In assessing whether to use a particular information technology to

communicate confidential information to or about a client, lawyers should assess the situation from

different perspectives.38

Lawyers should inform a client of the risks of unauthorized disclosure and interception before using

a particular information technology tools. Lawyers need to ensure that their clients, too, understand

that they need to protect the confidentiality of communications to them. Seeking client’s consent

before using a particular technology for communications is most desirable.39

There are many sophisticated technologies which may assist lawyers in enhancing their information

security. Anti-virus software, intrusion detection devices and automatic backup applications are

some examples of technologies which are of enormous assistance in structuring information security

management.40

The development in both technology and the law support the use of encryption to protect all

confidential information. Mark therefore recommends that lawyers should.41

i. use encryption to protect confidential information that is transmitted electronically

(e.g. e-mails);

ii. implement computer access restrictions (e.g. strong passwords and encryption) to

protect confidential information that is stored electronically, including confidential

38 Elizabeth F. Judge, ‘Guidelines for Practising Ethically with New Information Technologies’ (Ph.D, Thesis, University of Ottawa, Ottawa;(September, 2008) p.639 Ibid @ p. 740 Mark Heyink, ‘Information Security Guidelines for South African Law Firms’. (South Africa, 2011) P.341 Ibid @ p.6

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information stored on portable storage devices (e.g. USB drives), on mobile

computing devices (e.g. laptops and personal data assistants (PDAs)), and on desktop

and networked computers; and

iii. use full-disk encryption for any mobile computing device.

In addition, World Wide Web and Internet are now being embraced by the global legal community

as marketing tools.42 More lawyers are using the Web to promote their practices, disseminate

information, communicate with clients and prospective clients, conduct legal research, and carry on

the practice of law.

Law firms in the advanced countries employed website to deliver online legal services to their

internet savvy clients. The new trend of legal service delivery through utilization of the internet is

termed e-Lawyering43 or virtual law office44. This involves delivery of legal services online, such as

utilizing secure client portals and using web-enabled document automation and interactive advisory

applications. The virtual law office provides client with secure portals for uploading and viewing

legal documents, downloading legal forms or interactive with client online. One model of this new

breed of legal practice is the www.LegalAdviceline.com. website. This innovative website allows

clients to discuss their legal concerns with a in real-time online lawyer. With a few clicks, a potential

client can submit a question online and chose to receive an answer by phone or e-mail- for a fraction

of the price that clients seeking traditional counsel may pay.45

Law firm website and the practice of law in the cyberspace (over the Internet) raises serous ethical

issues especially in Nigeria and other jurisdictions where advertisement is prohibited by the rules of

42 Allen W. Chiu; ‘The Ethical Limits of e-Lawyering: Resolving the Multijurisdictional Dilemma of internet practice through Strict Enforcement’ (UCLA Journal of Law and Technology 2004) p.1 available at < www.lawtechjournal.com/notes/2004/01_040809_chiu.php >accessed on 13/08/1343 Ibid @ p. 144 Stephanie Kimbro, Definition of Virtual Law Practice available at http://virtuallawpractice.org accessed on 1/7/2013.45 Allen W. Chiu; ‘The Ethical Limits of e-Lawyering: Resolving the Multijurisdictional Dilemma of internet practice through Strict Enforcement’ (UCLA Journal of Law and Technology 2004) p.1

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professional conduct. For example Rule 39 of Rules of Professional Conduct for Legal Practitioners,

2007 restrict advertisement of legal services.46

It appears from the above provision, that the law firms or legal practitioners in Nigeria cannot

maximize the potentials of the internet or website as a modern day advertising tools. Legal

practitioners in Nigeria, in compliance with the rules of professional conduct, can only maintain a

non-interactive website simply providing information for reference, such as biographical and contact

information of the firm, areas of practice and firm’s publications. However, many of the official

websites of Nigerian legal firms could be regarded as pure advertising tools.47

Although there is nowhere in the world where attorney advertising is unregulated, yet some

jurisdictions like the U.S. allowed legal practitioners to engage in moderate advertisement of their

legal firm48. The global trends of advertising has finally caught up with legal practice and legal

practitioners must act quickly to work out the most appropriate model that will be suitable for the

peculiarity of the legal profession. I. A. Yusuf, observed that it is time for Legal practitioners in

Nigeria to bid farewell to rules and regulations prohibiting advertisement, in order to usher in the era

of the information age or be left behind. Kayode Oladele while condemning the rule preventing legal

practitioners in Nigeria from advertising their service, advocate for the review of the rules to allow

legal practitioners in Nigeria to engage in advertisement with restrictions49.

Nigerian Bar Association is responding to the global trend in legal service delivery. At the end of the

6th session on Legal Practice (SLP) Annual Conference of Nigerian Bar Association, with the theme

“Raising the Bar, International Best Practices In Legal Practice” held in 2012, at Jogor Centre,

Liberty Road, Ibadan a communiqué signed by the Chairman, Section On Legal Practice, conceded

46 Rules of Professional Conduct for Legal Practitioners, 200747 Yusuf I. A., ‘Information Technologies (IT) and its Place in Today’s Legal Practice and Administration of Justice’ (Ghalib Cambers Annual Lecture series, 2012), P. 1148 Ibid49 Kayode Oladele, ‘ Why Lawyers should advertise’ available at >http://nigeriavillagesquare.com/articles/kayode-oladele/interview-why-lawyers-should-advertise.html > accessed on the 10/7/13

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to the need for the review of the rule of advertising. It was resolved among others that, ‘In view of the

global trends in legal service delivery, there is the need to review the Rules of Professional Conduct

as it relates to the restriction against advertising’.50

The legal profession must therefore, act to bring the rule of law into practice of law in cyberspace51.

Without clear guideline for lawyers to follow in the course of such development, the practice of law

over the internet raises many significant ethical dilemma and many of which threaten even the

fundamental concepts of traditional legal practice.52

The next stage in the litigation process after accepting brief from client is legal research. Information

technology tools have made legal research easier. Legal data services have developed some

additional tools that generate useful information in a more automated way. For instance, electronic

data services like LexisNexis and Westlaw have become firmly entrenched as legal research tools.

West’s law Case Evaluator system uses a forms-based interface to collect information about a case

and automatically assembles reports that include relevant case citations, verdict trends for similar

cases in the jurisdiction, and excerpts from relevant expert materials.53 Similar electronic legal data

services such as Law Pavilion54, Legalpedia55 are now available in Nigeria.

Another information technology tool in use in the law firm is case management system. Case

management system is a framework for the entire firm to operate as a more cohesive and consistent

50 Adeolu Adeyemo, ‘Lawyers brush up ethics to improve legal practice in Nigeria’ The Nigerian Tribune, (Nigeria 26, November, 2012) available at< www.tribune.com.ng/index.php/tribune-law?fontstyle=f-larger > accessed on the 13/08/13

51 Allen W. Chiu; ‘The Ethical Limits of eLawyering: Resolving the Multijurisdictional Dilemma of Internet Practice Through Strict Enforcement’ (2004 UCLA J.L. & Tech. Notes 1) available at www.lawtechjournal.com/notes/2004/01_040809_chiu.php accessed on 1/7/1352 Ibid 53 Johnathan Jenkins ‘What Can Information Technology Do For Law?’ Harvard Journal of Law & Technology, (Volume 21, Number 2 Spring 2008) .p 59454 See. <www.lawpavilion.com > accessed on the 13/08/1355 Legalpedia is Nigeria's most comprehensive legal e-library software solution with a super-fast search engine that greatly reduces the time and expense of conducting legal research. With this extremely easy-to-use software, you will have instant access to the largest collection of Nigerian Cases, Laws, Rules of Court, Articles, Dictionary, Latin Maxims e.t.c. see. <www.legalpediaonline.com > accessed on the 13/08/13

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organization. Case management system is an indispensable tool for partners, associates and staff in

their daily work.

The system Provides access to information in a central location from a single interface thereby

saving time for searching documents and other information. It automates new matter intake process,

alerts attorneys and staff when a new file is assigned to them. It has a customized workflows for each

practice area and automatically populating documents with key index56.

Also in widespread use are a number of more law-specific technologies. Legal calendar software

extends the basic project management software by including legal timing rules. Billing software

tracks billable hours and integrates billing information into accounting and financial software

packages.57

In addition to office automation software, lawyers now use a wide range of computational tools of

varying sophistication. These tools include word processors, Optical Character Recognition software,

voice to text software for real-time transcript of voice to text, software for document assembly, and

other litigation support software. 58

2.3.0 USE OF INFORMATION TECHNOLOGIES IN THE COURT SYSTEM

Advances in technology continue to creep into the courtroom with greater and greater frequency.

Although many judges and practitioners initially resisted the use of technology in the courtrooms.59

The use of information technology in court is considered as one of the key elements to significantly

improve the administration of justice.60

56 Matt Ryan, ‘Why Doesn’t Every Law Firm Use It? Criteria for Use, Success and Failure’ (White Paper) p.457 Ibid58 Johnathan Jenkins ‘What Can Information Technology Do For Law?’ Harvard Journal of Law & Technology, (Volume 21, Number 2 Spring 2008) .p 59459 By Stan Gibson, ‘Evolving Courtroom Technology’ (GPSolo Technology & Practice Guide - June 2006) available at <http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/courtroomtechnology.html > accessed on 25/4/201360 Marco Velicogna, ‘Justice Systems and ICT; What can be learned from Europe?’ (Utrecht law review Volume 3, Issue 1 (June) 2007) available at < http://www.utrechtlawreview.org/ > accessed on the 13/08/13

19

While it is important to harness technology for the purposes of enhancing efficiency in the justice

processes, it must be emphasised that courts exist for the primary purpose of dispensing justice in a

manner that secures the public’s enduring confidence. When technology is added to the process, the

end of justice must not be compromised or jeopardised. Accordingly, fairness to the parties, integrity

and efficiency of the legal process, reliability of evidence given with the aid of technology as well as

public acceptance of technology in the justice process must be carefully weighed and considered

when new technology is used in the courtroom61

Professor Fredric Lederer, an astute thought leader on the ongoing fascinating interplay between

technology and legal processes, has insightfully noted that.62

High-technology courtrooms and technology-augmented litigation are reflections of the understood, but rarely voiced, nature of legal practice. Legal practice, especially litigation and adjudication, is a highly sophisticated form of information management.The courtroom is a place of adjudication, but it is also an information hub. Outside information is assembled, sorted and brought into the courtroom for presentation. Once presented, various theories of interpretation are argued to the fact finder who then analyzes the data according to prescribed rules (determined by the judge through research, analysis and interpretation) and determines a verdict and result. That result, often with collateral consequences, is then transmitted throughout the legal system as necessary. The courtroom is thus the centre of a complex system of information exchange

Information technology tools have made the business of the courts more effective, efficient and

transparent. The core stage in litigation process is the hearing of case during the trial by the judge.

The hearing is essentially about the presentation of information to the fact finder (judge) in the form

of pleadings, written depositions of witness and arguments. Information technologies tools has been

incorporated in litigation in many jurisdictions like U.S. and Singapore with a view to enhance

presentation and management of information in court63.61 keynote address delivered by V K Rajah; Judge of Appeal, Supreme Court, Singapore International Conference on Electronic Litigation August 2011, Singapore. P.162 Fredric Lederer, “The Road to the Virtual Courtroom? A Consideration of Today’s – and Tomorrow’s – High-Technology Courtrooms”(1998-1999) 50 South Carolina Law Review 799 (“The Road to the Virtual Courtroom”) at 800;63 Marco Velicogna, ‘Justice Systems and ICT; What can be learned from Europe?’ (Utrecht law review Volume 3, Issue 1 (June) 2007) available at < http://www.utrechtlawreview.org/ > accessed on the 13/08/13.

20

According to Charles W. Nihan and Russell R. Wheeler, information Technology has three general

uses in the courts. First, it can provide management and operational support, enabling courts to deal

better with the increased size and complexity of their caseloads. Second, it can speed up the

execution of routine tasks and increase the amount of useful information available to a court. Finally,

it can help courts accomplish the research and planning tasks necessary for the proper administration

of justice.64 To Marco Velicogna, court room technologies is categorised into three groups. The first

group consists of basic technologies such as desktop computers, word processing, spreadsheets and

both internal and external e-mail for both judges and administrative personnel. The second group

consists of applications used to support the administrative personnel of the court, which include

automated registers and case management systems. Finally, the third group consists of technologies

used to support the activities of the judges, such as case law electronic libraries, and sentencing

support systems65.

Dory Reiling held the view that Information Technology for courts can be distinguished into

technology for:66

i. The courtroom, supporting what happens in the courtroom itself

ii. The back office, supporting the processes that are related to case administration, document production and court management

iii. External communication, supporting all communication with parties and the general public outside the courts.67

In view of the above classification, the use of information technology in court will be discussed on

the following division; i.e Information Technology Support for Court Management, Information

64 Charles W. Nihan and Russell R. Wheeler; ‘Using Technology to Improve the Administration of Justice in the Federal Courts’ (Brigham Young University Law Review 1981) p.661

65 Marco Velicogna, ‘Justice Systems and ICT; What can be learned from Europe?’ (Utrecht law review Volume 3, Issue 1 (June) 2007) p.13066 Dory Reiling; Technology for Justice How Information Technology Can Support Judicial Reform (Leiden University Press, 2009) p.4867 Dory R; Technology for Justice How Information Technology Can Support Judicial Reform (Leiden University Press, 2009) p.48

21

Technology Support for Judges and Court Staff and Information Technology Support for Interaction

between Courts and Parties.

IT Support for Court Management

A number of different applications have been developed to support the administrative component of

the court offices organization and to automate administrative tasks.68 Automated registers is one of

the application developed in court to automate court docket and other court register activities.

Automated registers is a database technology used in courts for registration and management of

cases. Case registration systems replace the functionality of traditional court dockets.69 Automated

registers databases contains virtually all the important information concerning every action, cause or

matter filed in the court, including parties’ particulars, the nature and quantum of the claim, the

document filed and the outcome of hearings and more.70

Another information technology tool developed in various jurisdiction where technology has been

fully integrated in the litigation system is the Case Management and Tracking System (CMTS). Case

Management and Tracking System (CMTS) involves the monitoring and managing of cases in the

court docket from the time the action is filed to the moment it is finally disposed of by way of trial,

settlement or otherwise. It ensure that all cases progress swiftly without unnecessary delay.71

The Case management and Tracking System Support and automate the back-office and the

administrative work of court staff, case tracking, case planning, document management, scheduling

of hearings and support of judicial activities. For example, after the receipt of a pleading the event

needs to be registered, the case needs to be allocated to a judge, notices need to be sent, a hearing

must to be set, as well as time allocated for the judge to review the pleading before the hearing. If a 68 Marco Velicogna, ‘Justice Systems and ICT; What can be learned from Europe?’ (Utrecht law review Volume 3, Issue 1 (June) 2007) p.13069 Dory R; Technology for Justice How Information Technology Can Support Judicial Reform (Leiden University Press, 2009) p.5070 Ibid 71 Marco Velicogna, ‘Justice Systems and ICT; What can be learned from Europe?’ (Utrecht law review Volume 3, Issue 1 (June) 2007) p.130

22

response is not received from the opposing party, a reminder may be sent by the clerk. In the paper

based system, the flow of cases is carried around in the heads of court personnel, or is ingrained in

procedures and material such as to-do lists.72 The Case Management System embeds such knowledge

and automatically performs most of these tasks, providing support to others (e.g. tracking events and

generating reminders of deadlines) and thus helping to improve the service.73

Workflow management system is another court management system. It helps to monitor the output

and performance of the courts, helping the planning and organisation of court activities and the

allocation of resources.74 The more sophisticated Workflow management packages summarise the

court workflow on a daily, weekly and monthly basis. They are able to display the aggregate

information on the court activities in different graphical views. A monthly calendar can show the

number of actions and the time allocated in the courtroom for each day. Alternatively, bar charts can

be produced to show each day of the week and the number of matters, by type, scheduled for the

court and help plan court activities.75

Furthermore, as the operation of the courts generates a significant volume of financial transactions

including, fines, bails, fees, etc. Courts acquire goods and services and in some cases also hire

personnel. In several countries, software applications have been developed or are under development

in several countries to help processing and accounting for such transactions. In Ireland, for example,

the Courts Accounting System (CAS) has been piloted in a small number of District Court offices.

Moreover, it is now being extended to all the 44 District Courts.76

IT Support for Judges.

72McMillan J.E. ‘Case Management Systems: The Four Bubbles’ available at: <http:// www.ncsconline.org/WC/Publications/KIS_CasSysCTB1995McMillanPub.pdf > accessed on 3/7/1373 Ibid 74 Ibid75 Ibid76 Marco Velicogna, ‘Use of Information and Communication Technologies (ICT) In European Judicial Systems’ (EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ) P. 27

23

Various IT tools have been developed to improve efficiency of judges. These have been designed to

support and to automate judges’ activities. IT supports the work of the judges in several areas, which

include the legal research, the information management and retrieval, document production and the

decision-making.77

Legal research is one of the aspects of the judge’s activity that has been probably most affected by

the use of IT tools. Many electronic legal database are now available which provide access to judicial

decisions, rules of various courts, statutes and much more. Conducting on-line legal research and

surfing the growing number of websites has become a part of a judge’s daily activity. Real time

publication of the judgment on the court official website will not only enhance quality, efficiency

and transparency of the judiciary but also reduce the problem of conflicting decisions which is on the

raise in some jurisdiction, like Nigeria.

Another important innovation is the use of electronic forums and discussion groups in which judges

can ‘virtually’ meet with his brother judges in another divisions and discuss legislation, procedures

and cases. This information technology tool provides an opportunity for judges in various judicial

divisions to share information and receive support from his brother judges.78

Another innovative information technology tool recently developed in some jurisdiction to support

Judges is the sentencing support and automated judgment systems. These systems help in improving

the quality and aptness of judgements. One of the most successful examples is the Sentencing

Information System for the High Court of Scotland. The system ‘uses computer technology to a

allow trial Judge quick, easy access to relevant information about past sentencing of the court in

‘similar’ cases, without placing any formal restrictions on the exercise of judicial discretion.79

IT Support for Interaction Between Courts and the Users.

77 Ibid78 ibid

79 ibid24

This technologies deal with judicial data interchange between courts and the network of actors with

whom the courts interact in perusing their functions.

Court official website is a communication tool that is used to interact and exchange information with

court user as such lawyers and parties. Different groups of court users (attorneys, prosecutors and

parties and well as public) have different information exchange needs. Therefore, Information

provided by court websites can be divided into four groups with respect to their content: general

information, information on court activities and organisation, legal information, and case

information.80

The peak of evolution of the electronic means of communication between the court and the court

users is the electronic filing system. Many jurisdictions have implemented the E-filing system to

radically change the paper based infrastructure underlying the formal communication exchange

within judicial proceedings to electronic. With electronic filing system, a lawyer, using a computer

from office, home or even from a vacation location, can electronically file a suit, get information on

a case, receive court e-notices, download electronic documents concerning the case. He or she can

search for the next court appearance in a case, of the occurrence of a number of relevant events on

the cases he/she is following, or be automatically remained by the court of any impending deadline.

The court front office became open 24 hours a day, 7 days a week, both for the consultation and for

submission of documents.81

2.3.0 CONCLUSION

The use of information technology in automating litigation process in both in the law firm and court

have not been maximised. Even though, integration of the information technology into the litigation

process has proven to be an inevitable option in dealing with the volume of data in the information

80 ibid

81 ibid25

age, yet the level of integration of information technology in legal profession is low compared to

other industries such as the financial institution.

The legal profession must act to fast bring the rule of law into practice of law in cyberspace. Without

clear guideline for lawyers to follow in the course of such development, the practice of law over the

internet raises many significant ethical dilemma, many of which threaten even the fundamental

concepts of traditional legal practice.

26

Information technology and litigation process deals with information processing and manipulating to

produce certain output. Each stages of the litigation process have witnessed integration of

information technologies tools such as using of; email to communicate with client, in the first stage,

word processing to process, store and retrieve information in the second stage, forensic and e-

discovery software in the third stage and lastly, e-filling, image cameral, video conferencing and

projector for presentation of evidence in the fourth states.

However, the use of information technology in automating litigation process in both in the Law Firm

and court have not been maximised. Even though, integration of the information technology into the

litigation process has proven to be an inevitable option in dealing with the volume of data in the

information age, yet the level of integration of information technology in legal profession is low

compared to other industries such as the financial institution.

The ethical issues associated with the integration of information technology demand urgent response

from legal practitioners. Some jurisdictions for instance, US has responded to the new ethical issues

arising from integration of information technology into legal practice. The jurisdiction has provided

guideline on ethical issues on e-lawyering and virtual law office.

The Nigeria Bar Association must realise that Internet has successfully removed geographical

barriers and make the whole world a single market. Therefore, in view of the global trends in legal

service delivery, there is the need to review the Rules of Professional Conduct as it relates to the

restriction against advertising to enable legal practitioner in Nigeria maximize the potentials of the

internet or website as a modern day advertising tools.

The information technology have been seen as an essential tool in administration of justice as it

reduce case delay and cost, promote access to justice, improve effectiveness and efficiency, and

ensure transparency and convenience.

27

CHAPTER THREEELECTRONIC LITIGATION SYSTEM

3.0.0 INTRODUCTION

The move toward using technology in the courtroom is gaining momentum around the world,

especially in the US, Australia and Singapore.82 Driving this trend is the continued evolution of

information technology into every aspect of the human endeavour.83 The world, with evolution of

information technology, is currently transforming to electronic based. Most of the domestic and

international transactions are now conducted electronically. Therefore, court must respond to, and

keep up with the technological advancement of society. Thus, integration in the information

technology in the legal practice and court system is inevitable.

This chapter provides the definition of what electronic litigation system. The chapter also trace the

origin and evolution of the electronic litigation system. The chapter finally examines in details the

functionalities and benefits of the electronic litigation system.

3.1.0 CONCEPT OF ELECTRONIC LITIGATION SYSTEM

The phrase Electronic Litigation System is a new Singapore electronic platform which provide

infrastructure for law firms, litigants, and court to interact with each other. Various terms are

employed to describe electronic integration into legal practice and justice system. The terms E-Court,

E-litigation, E-Justice System or E-filing System are used in various jurisdictions. However, it must

be noted that the underlining factor that cut across the electronic litigation is the electronic

transmission, management and access to court process.84

82 Thomas C. Moore and Paul Neal ‘New York Lawyers lead way in taking Technology to Court’ (Techtrends, New York Law Journal, Monday, March 31, 2003 volume7, No.2) P.183 Ibid P.184 Feasibility Report on Electronic filing Service Provider Model, (commissioned by the Office of the Registrar, Supreme Court of Canada September, 2002). P. 237

28

In view of the above, electronic filing will be used as a general terms in explaining the concept of

electronic litigation system. Various definitions of electronic filing system exist, ranging from the

simple action of submitting documents by electronic process, to the development of more complex

systems that include a variety of sub-functions. Simply defined, electronic filing consists in

transmitting a document by electronic means. A more appropriate description for electronic filing is

the electronic transfer of legal documents to and from court, and between parties using the Internet.

A Guidebook for Electronic Court Filing, developed by National Center for State (NCNC) provide

comprehensive definition of electronic filing system. It define electronic filing thus;

Electronic filing is the process of transmitting documents and other court

information to the court through an electronic medium, rather than on paper.

Electronic filing lets people get more of their work done with their personal

computers, to send and receive documents, pay filing fees, notify other parties,

receive court notices, and retrieve court information. Electronic filing works

by replacing the traditional method of filing, serving and storing court

documents with a more efficient electronic process.

Electronic filing system facilitates the transmission, storage of information and allows access by

many court user simultaneously from different locations. It has changed the way courts interact with

each other, with lawyers, litigants and with the public. Electronic filing system creates an electronic

envelope in which the contents are placed for the secure management of case files by the court and

transmission of digital information between lawyers and the courts.85

3.2.0 EVOLUTION OF ELECTRONIC FILING SYSTEM

85 Kala M. Finn, ‘Electronic Filing Trends in 2002: The Paperless Law Practice’, (Knowledge & Information Services, National Center for State Courts, November 25, 2002). P.13

29

Historically, the term electronic filing has included fax filing, email, modem-based online services,

and more recently CD-ROM transfer, however, these approaches are now considered crude in terms

of information management, reliability, and security.86 The early example of the use of information

technology in the court-room, was that of the war crimes tribunals after World War II. The war crime

tribunal made use of film material and simultaneous translation87. In 1961, the court trying WWII

war criminal Adolf Eichmann used simultaneous interpretation of testimony, photocopies and

super8-films88. Today, many different kinds of IT are used by the United Nations, International

Criminal Tribunal: video and audio recording of the court sessions, simultaneous interpretation of

testimony, electronic court reporting, videoconferencing for witness hearings, and electronic files.

Moreover, the tribunals maintain web sites with their decisions, back-ground information, and

sounds and images from the courtroom89.

Electronic revolution is currently taking place within court systems across the world. Electronic

filing of documents has gathered impetus as a viable method of conducting the daily business of the

courts.90 For instance, in the US, electronic filing is the fastest growing innovation for managing

documents in the American Judicial System.91

It is reported that Superior Court of Delaware in 1991 created the very first electronic docketing and

filing system for civil cases in the United States. The system is called CLAD which stands for

Complex Litigation Automated Docket. The Delaware Superior Court is also the first state court to

adopt a rule which allows parties to file briefs and appendices with the court on hyperlinked CD-

86 A Guild to model rules for electronic filing and service, (LexisNexis@ File & Serve 2000) p. 487 Dory R; ‘Technology for Justice How Information Technology Can Support Judicial Reform’ (Leiden University Press, 2009) p.4788 ibid89 Ibid90 Julie C. Turner, ‘Changes in the Courthouse - Electronic Records, Filings and Court Dockets: Goals, Issues and the Road Ahead’, (University of Washington Law School Library), page 275.

91 Richard N. Bien, Esq., Chair of the American Bar Association’s Judicial Division, American Bar Association, Judicial Division, Standards Relating to Court Organization, Standard 1.65: Court Use of Electronic Filing Processes, 2004, p 2.

30

ROM disks.92 Research has shown that the federal judiciary in the US has played a major role in the

evolution and development of electronic filing of court pleadings. Beginning in January 1996, when

the first federal court began allowing the electronic filing of pleadings and continuing to the present,

the federal judiciary has compiled an impressive record of successes.93 Previous studies concluded

that the federal judiciary made two key fundamental “e-filing” decisions correctly from the

beginning: (1) to use the Internet and (2) to require that documents be in Adobe's PDF (Portable

Document Format) to maintain formatting across all platforms. It is widely reported that the federal

Electronic Case Files (ECF) system, which is overseen by the Administrative Office of the United

States Courts, has been a triumph from the beginning.94

Other jurisdictions that follow suit in the implementation of the electronic filing system are

Australia, Singapore and Canada. It is suffice to say that these countries are major point of reference

in the implementation of the electronic filing projects. This is due to the fact that the electronic filing

systems projects in these countries are not only early in time but also have resounding success.

3.3.0 FUNCTIONALITIES OF ELECTRONIC LITIGATION SYSTEM

The functionalities of the electronic litigation system differs from one jurisdictions to another

depending on the type of model integrated. Standard electronic litigation system consists e-filing and

service component, case management system, and electronic hearing. The electronic litigation

system of Singapore will be used as a model in discussing the functionalities of the Electronic

Litigation System in this chapter. The choice of using Singapore electronic litigation system as a

model is because of the simplicity of its user interface and the fact that its functionalities cover law

firm. The Electronic Litigation System provides an effective and efficient litigation tools that

litigation lawyers and court will utilise in their daily work. The Electronic Litigation System

92 Sharon D. Nelson, Esq. and John W. Simek, ‘Electronic Filing in the Federal Courts: A Status Report’, (Sensei Enterprises, Inc., 2001), page 1.93 Ibid94 Ibid

31

functionalities in Singapore model are (1) are case management for Law Firms, (2) case management

for Court and (3) Electronic hearing95. However, in this discussion case management for law firm

and that of Court will be treated together.

Case Management for law firm and Court;

One of the components of the Electronic Litigation System for case management is Electronic data

rooms (EDRs)96 for both lawyers and the courts. The Electronic data rooms facilitate online case

management. Essentially, the Electronic data rooms can be viewed in terms of three distinct but

interconnected parts:

(i) War Rooms;

(ii) Lawyers’ Case File; and

(iii) Courts’ Case File.

War Rooms

A War Room facilitates communication and correspondence between a litigant and his lawyer.

Where a litigant engages a lawyer in respect of a matter, a War Room is set up in respect of that

matter. All documents and relevant material relating to the case are stored in the War Room, for

example:

(i) Pleadings and other documents that are in various stages of preparation; and

(ii) Other documents (including documentary evidence) that have been supplied by the client and

which may be used in the litigation process.

If the opposing litigant and his lawyer decide to contest the matter, a separate War Room is set up for

their use. In this separate War Room, the opposing litigant and his lawyer can communicate with

each other and exchange correspondence.

95 Electronic Litigation in Singapore: A Roadmap for the Implementation of Technology in the Litigation Process (Revised Edition, May 2005)96 Ibid p. 13

32

Access to each individual War Room will be restricted to the litigants and their respective lawyers.

Opposing parties and counsel will not have access to it, for example, the claimant’s lawyer will not

have access to the War Room between the defendant and his lawyer97.

The War Room can also ease the process of discovery. As a matter of course, all documents for a

case can be uploaded into the War Room (if the litigant and his lawyer choose to use one). For

documents that are to be discovered, the lawyer can simply grant the opposing counsel access to

these discoverable documents98.

Individual War Rooms is integrated with a law firm’s document management system. In this regard,

law firms will be able to draw on case information in the EDRs to enhance their internal information

repository or knowledge base. With the full integration of these systems and functions, law firms will

be better equipped in the preparation of cases as the Electronic Litigation System serves as a one-

stop knowledge hub upon which law firm can fully capitalise.

Ability of a lawyer and his client to exchange documents in their War Rooms encourages the use of

the War Rooms as a virtual meeting room for collaboration. For example, clients will be able to

upload documents and other electronic evidence into the War Room, lawyers can make use of the

War Room to give clients access to draft court documents and exchange notes with clients, and

lawyers can grant clients access to court documents in the Lawyers’ Case File that have been filed

and served99.

Lawyers’ Case File

Besides the War Rooms, the EDRs also hosts the Lawyers’ Case File100. When a lawyer files a

document to the court, the document will be filed in the Courts’ Case File. An exact copy of that

97 Ibid p. 1498 Ibid 99 Ibid p. 15100 Ibid 16

33

document will be deposited into the Lawyers’ Case File. Only the lawyers will have access to the

Lawyers’ Case File101.

The Lawyers’ Case File will be a repository of the following categories of material:

(a) Pleadings and other documents that have been prepared on behalf of the client and filed with

the courts;

(b) Pleadings and other documents that have been served by the opposing party;

(c) Correspondence between lawyers; and

(d) Communications between lawyers and the courts.

A key feature of the Lawyers’ Case File is that the lawyer will be able to make annotations on the

documents to aid his presentation of the case in court. These annotations will be saved separately for

each lawyer and only the lawyer who made those annotations will have access to them; neither the

courts nor opposing counsel will be able to see those annotations as he prepares them.

Courts’ Case File

The Courts’ Case File contains all documents filed by the parties for a particular case. Only the

courts will be able to access the documents filed in the Courts’ Case File. The documents in the

Courts’ Case File will be an exact replica of the documents found in the Lawyers’ Case File, except

that the annotations saved by the lawyers are not captured in the Courts’ Case File.

During hearings whether in court or chambers a lawyer can access documents which he has filed and

documents which have been served on him. He will be able to access these documents when he

prepares for the hearing at his office and also in court during the conduct of the hearing. This will

contribute to a ‘paper-less’ hearing

Communications channel

101 Ibid 34

The Electronic Litigation System also performs a crucial role as a channel for communications

between the courts and the law firms on one hand and amongst law firms inter se on the other hand.

The Electronic Filing System component retained under the Electronic Litigation System allows

electronic filing and service of documents between law firms

Essentially, there are four main components under Electronic Filing System:102

a) Electronic Filing Service

b) Electronic Service of Documents

c) Electronic Extract Service

d) Electronic Information System

Electronic Filing System

Electronic Filing System allows a Lawyers to electronically sign and submit their legal documents

on-line to the Courts. The filer also needs to fill in the document profile, based on a standardised

template, which accompanies their PDF court documents. An EFS smart card is needed for the filer

to digitally sign the documents. Smaller law firms or litigants-in person who do not have the

facilities to submit their documents on-line can approach the service bureau, operated by the

Singapore Academy of Law to assist in electronic filing103.

In addition, EFS at its front end, also determines the amount of court document fees, transmission

and processing fees incurred by the law firms (transmission fees are dependent on the amount of

documents filed while the processing fees are based on a fixed rate). Fees will be deducted

electronically through inter-bank debit system.

102 Case Study Proposal, Electronic Filing System (EFS) of The Supreme Court of Singapore Focus 3 – Government Elaine Goh National Archives of Singapore September 2003103 Ibid

35

The registry staff at the Court will verify and process the documents from their electronic in-trays.

Eg: They will check the details of the document profile against the court documents, which is in

PDF. Once the document has been verified, it may be sent to the registrar or juridical officer for

approval. The approved documents are then sealed electronically (affixed with the electronic seal of

the Supreme Court and the digital signature of the duty registrar)104.

Electronic Service of Documents

This module allows law firms to serve court documents to other law firms electronically, provided

that the firms are connected to the EFS network. It automatically issues an electronic certificate of

service, which includes details like the document number, the date and time the document was sent.

This can be submitted in court in place of an affidavit of service105.

Court calendaring

After service, the Electronic Litigation System’ calendaring function automatically generates a

schedule of dates for the completion of key steps in the litigation process according to the courts’

timelines for case disposal106. For example, deadlines for exchange and close of pleadings, list of

documents, affidavits, expected Pre-Trial Conference dates, etc., can be automatically generated

from the Electronic Litigation System. Additional the court calendaring module include107:

(a) Automatic notification of impending deadlines by email or short message service (SMS) on a

date pre-selected by a lawyer or his secretary;

(b) Option to opt-out of being sent certain types of reminders;

(c) Option to allow reminders to be sent or forwarded to clients; and

(d) Allowing secretaries and litigation support staff access to view court calendars.

104 Ibid105 Ibid106 Electronic Litigation in Singapore: A Roadmap for the Implementation of Technology in the Litigation Process (Revised Edition, May 2005)107 Ibid

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Docket system

Electronic Litigation System uses a docket system for the management of cases in the courts. The

docket system entails one judge or judicial officer dealing with the case from its commencement to

its conclusion, i.e., individual case management system108.

The docket system instils certainty in the pattern of judicial decision making. It also saves judicial

resources to the extent that it cuts down the need for a judge or judicial officer to sieve through the

file afresh each time it is assigned to a new person. However, it is acknowledged that the docket

system has various drawbacks. Currently, Electronic Litigation System allows the courts’ case

management timelines to be set such that hearing dates can be fixed automatically.

Electronic Hearings

The court room is not merely a place where a lawyer presents his prepared case, but is also a place

where he is constantly refining his case as the hearing proceeds. As such, technology should equip

the lawyer with the necessary tools for the refinement of his case in court109.

As the court room plays host to lawyers with differing approaches to the conduct of their cases, the

technology implemented in the court room should cater to the individual preferences and styles of

the lawyers. Technology should assist lawyers in the conduct of their cases and not hinder them110.

Technology should also assist judges and judicial officers in the decision-making process. This will

facilitate the more, efficient hearing of cases, which will in turn benefit the lawyers in the

presentation of their case before the court.

108 Ibid109 Ibid110 Ibid

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The important aspect of a lawyer’s work is the presentation of his client’s case in court, both at the

trial and on appeal. It follows that a lawyer has to make the necessary preparations in order to be

effective in court. As his preparation for the case will invariably be carried out in different places, for

example, in his office or at his home, all the relevant materials that he has worked on for the

preparation of the case should be made available to him in court. At the same time, the system should

allow him the flexibility of refining the preparation for his case as the hearing progresses in court.

The court room is connected to the Internet. During the hearing, the lawyer will then be able to

access his preparation and the tools which are available on his firm’s corporate intranet or on any

other similar portal. Seen in the context of the EDRs discussed above, this also means that a lawyer

will be able to access the relevant War Rooms and the Lawyers’ Case File whilst in court.

2.4.0 THE BENEFITS OF ELECTRONIC LITIGATION SYSTEM

The main goals of all litigation systems are to achieve just, efficient and speedy dispensation of

justice. The primary drive for incorporation of information technology into the litigation system and

administration of justice are to reduce case delay and cost, promote access to justice, improve

effectiveness and efficiency, and ensure transparency and convenience. It is believed that integration

of information technology into the system and administration of justice will have the following

impacts.

Efficiency

The most apparent and acclaimed impact of integration of information technology in the litigation

system is that is reduces cases delay111. This is because information technology brings about

efficiency at every level of litigation processes. With the integration of information technology in the

administration of justice, Litigation preparation in the Law Firm, filing of pleadings, and trial

111 Dory Reiling; Technology for Justice How Information Technology Can Support Judicial Reform (Leiden University Press, 2009) p.17

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become more efficient for the parties involved, for their attorneys, for the individual judges and for

the judicial system as a whole112. For instance, the possibility for e-filing of cases and online service

of process will reduce costs and allow for efficient storing of data. Electronic Filing System, improve

the efficiency of Law Firms, with the Electronic Filing System in place, Law Firms can perform

document submission, request for electronic copies of the documents and serve documents on other

Law Firms from their offices. They will not need to make physical trips to the Courts, hence, saving

precious time. Electronic case management system will also ensure efficient monitoring and

managing of cases in the court docket from the time the action is filed to the moment it is finally

disposed of. Moreover, the possibility for accessing files automatically, from the office and from

home, serves to shorten proceedings. Finally, judges’ ability to view all materials digitally during the

trial shortens the time needed for writing a decision113.

Access to Justice

As court proceedings become more efficient, access to justice increases. Therefore, the enhanced

efficiency offered through technology is expected to promote access to justice. Integration of

information technology enable poor litigant access to justice, because IT ensure speedy disposition of

cases and thereby reduces considerably costs associated with prolonged litigation114. Information

technology also helps to make our court system more accessible to the court users, litigants and the

general public by making the judgments, hearing calendar, court procedures and case information

available over the Internet115.

Participation

112 Orna Rabinovich-Einy; BEYOND EFFICIENCY: THE TRANSFORMATION OF COURTS THROUGH TECHNOLOGY (UCLA Journal of Law & Technology) (spring, 2008), Volume 12, Issue 1 at p. 34 available at www.lawtechjournal.com accessed on 3/7/2013113 Ibid at p. 34114 Ibid at p. 35115 Judge Lungten Dubgyur, Judicial Reforms And Access To Justice Through The Use Of Information And Communication Technology (Ict) In Bhutan, It Management And Judicial Reforms In Bhutan at P.4 available at www.judiciary.gov.bt/html/education/.../IT%20Paper-Lungten.pdf

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A related value, which impacts the legitimacy of the judicial system, is participation. Research in the

field of procedural justice has underscored the significance of participation for certain litigants, often

bypassing the importance of the substantive outcome of litigation116. The introduction of technology

into court proceedings could contribute to greater involvement, if not participation, by parties

themselves.

Transparency

Information Technology also help the judiciary to deliver highest quality of justice by promoting

accountability, transparency, and non-arbitrary decision making under the rule of law. Information

Technology can do this by giving judges better access to the law and to tools that can make them

more effective. Information Technology can also achieve the objectives of accountability and

transparency by giving the public access to the court’s judgments, procedures, and case

information117.

Convenience

Integration of information technology in the litigation process law firm can file process from his

office with a single click 24 hours a day, 7 days a week. This brings greater convenience and

flexibility to the law firms. Integration of information technology makes it possible for law firm to

receive court e-notices, download electronic documents concerning the case. He or she can search for

the next court appearance in a case, of the occurrence of a number of relevant events on the cases he

is following, or be automatically remained by the court of any impending deadline118.

116 See John M. Conley & William M. O’Barr, Hearing the Hidden Agenda: The Ethnographic Investigation of Procedure, 51 LAW & CONTEMP. PROBS. 181, 181-97 (1998); William M. O’Barr & John M. Conley, Litigant Satisfaction Versus Legal Adequacy in Small Claims Court Narratives, 19 LAW & SOC’Y REV. 661, 663 (1985).

117 Judge Lungten Dubgyur, Judicial Reforms And Access To Justice Through The Use Of Information And Communication Technology (Ict) In Bhutan, It Management And Judicial Reforms In Bhutan at P.5 available at www.judiciary.gov.bt/html/education/.../IT%20Paper-Lungten.pdf 118 Ibid

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3.3.0 CONCLUSION

The electronic filing system introduced into the court has been a successful. The electronic filing

system was introduced in response to the explosion of data as a result of advancement in the

information technology. The integration of the Electronic filing system has not only reduce case

delay and cost, promote access to justice, improve effectiveness and efficiency, and ensure

transparency and convenience in the administration of justice.

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