Journal of Appellate Practice and Process 2

Of Note

Special Issue, Journal of Appellate Practice and Process 2, no. 2 (Summer 2000).

This entire issue of this faculty-edited law review, published at the law school at the University of Arkansas at Little Rock, was devoted to matters concerning technology and the courts. Although

it was published a half-dozen years ago, the amount of useful material it contains should make it of interest to our readers. A comparison of the articles presented in this Journal of Appellate Practice and Process special issue with those presented in the special issue you are now reading might well be fruitful, as an indication of how rapidly matters have developed in a half-decade, or have not. Because the symposium focuses on the appellate level of the judiciary, it is particularly important, as much attention given to technology in courts centers on technology's use in trial courts.

In discussing the new technology and appellate practice, Philip A. Talmadge ("New Technologies and Appellate Practice," pp. 363-77) makes the important point that while appellate courts perforce make some use of technology, "[m]any appellate courts are doing their work at the dawn of the twenty-first century in a fashion not entirely dissimilar to the way they were doing their work at the dawn of the twentieth" (p. 363). Thus, much of the use of technology that is discussed is early use-certainly "early" compared to more advanced use in some other institutional sectors.

Among the topics covered, by contributors who include appellate judges, law professors and law librarians, and practicing attorneys, either in separate articles or as part of broader treatments, are developments in technology; the effect of technology on appellate practice for lawyers; legal research; electronic filing; CD-ROM briefs; electronic transcripts; and technology's effect on appellate judicial decision making, including appellate review of an electronic record and effects on collegiality within appellate courts. There are general articles and examinations of particular courts, primarily in the United States (Deborah Leonard Parker, "Electronic Filing in North Carolina: Using the Internet Instead of the Interstate," pp. 351-62; Edward Toussaint, "Minnesota Court of Appeals Hears Oral Argument Via Interactive Teleconferencing Technology," pp. 395-403; and Stephen J. McEwen, Jr., "TV or Not TV: The Telecast of Appellate Arguments in Pennsylvania," pp. 405-10), but also in Canada (Roger Philip Kerans and Patrick Keys, "Use of Electronic Appeal Transcripts in the Alberta Court of Appeal," pp. 329-49).

California Court of Appeal judge George Nicholson opened the symposium by discussing technology-induced changes ("A Vision of the Future of Appellate Practice and Process," pp. 229-50). He placed them in two categories: the more visible "improved efficiency brought to traditional appellate practice and process," including issues of speed, efficiency, and communication, and those that call "into question the scope and direction" of that practice and process (p. 230), including efforts to facilitate interaction among judges, such as the Justice Web Collaboratory. Nicholson gives particular attention to proposed California legislation that would have provided an integrated justice information system for the state-not unlike those discussed in the present special issue of this Journal-and to efforts to redesign court processes to facilitate pro se litigants' use of courts. Despite his enthusiasm, Nicholson does not hide detriments of the new technology, which, while it "allows improvement of processes," he says, "also permits hyperactivity or sloth" (p. 245).

Fredric I. Lederer, whom we associate with "Courtroom 21" at the law school at William & Mary, focused on what has been the traditional (paper) record at trial and on what a new electronic record would look like ("The Effect of Courtroom Technologies on and in Appellate Proceedings and Courtrooms," pp. 251-74). In addition to devoting attention to high-technology appellate briefs and to visual argument that appellate counsel could present either in person or from remote locations, he spoke particularly to whether appellate deference to trial court findings of fact would be maintained if appellate judges have more direct access to witness demeanor, and states, "The new multi-media court record will present appellate courts with an opportunity to expand the scope of judicial review in some cases" (p. 261). This issue is also discussed by Robert C. Owen and Melissa Mather ("Thawing Out the 'Cold Record' . . .," pp. 411-43), who note as well the effects of appellate judges being able to view voir dire. That would allow them to improve how they evaluate lawyers' defense of their peremptory strikes of prospective jurors and their closing arguments, permitting a closer look at nuance that might lead to a determination that the improper comment had been made.

An important point in relation to the spread of technology, which the authors, as users, generally advocate, concerns the role of those we might call "entrepreneurs." Thus, trial attorney Marilyn Devin, in talking of CD-ROM briefs, ("CD-ROM Briefs: Are We There Yet?" pp. 377-94) notes that "introduction of hypertext briefs has been spearheaded by a handful of techno-attorneys and judges" (p. 381). Indeed, it is such individuals who are (properly) overrepresented among the authors in this volume.