Academic journal article Journal of Appellate Practice and Process

Prospects and Problems Associated with Technological Change in Appellate Courts: Envisioning the Appeal of the Future

Academic journal article Journal of Appellate Practice and Process

Prospects and Problems Associated with Technological Change in Appellate Courts: Envisioning the Appeal of the Future

Article excerpt

Because things are the way they are, things will not stay the way they are. (1)

I. INTRODUCTION

The advancement of technology is notoriously difficult to predict with any precision. It is no small irony that science fiction authors have, in some real ways, driven the advancement of technology (and not the other way around). (2) In the legal world, the advancement of technology has had an enormous impact on the practice of law, how litigation works, and how trial and appellate courts operate. But there is comparatively little science fiction written about the advancement of technology in the courts, perhaps with good reason. Recognizing that void, this article envisions how technology will impact the appeal of the future.

This article begins with a discussion of the appellate process and technology in appellate courts today. The article then discusses the impact of technology in appellate courts, including some significant, but often-overlooked, changes that technology may have on appeals, including how video recording of trial court proceedings in the record on appeal can change how appeals are considered. The article follows with the case for additional use of technology in appellate courts, including some examples where technology can accomplish things that were impossible in the "paper world." The article concludes with some thoughts about the future of technology in appellate courts.

By definition, the future is uncertain and this article asks more questions than it answers. Along with creating previously unknown headaches and issues, advances in technology will afford appellate courts opportunities never possible in the paper world or with technology currently used on appeal. How these opportunities develop and what impact they have will turn on the capabilities of new technologies, the affordability and receptivity of new technologies, and the willingness of courts and lawyers to envision how things can be done better using technology (and not just how to replicate electronically what has been done for decades in the paper world).

II. THE APPELLATE PROCESS AND TECHNOLOGY IN APPELLATE COURTS TODAY

Historically, disappointed litigants in the United States have had the opportunity to seek appellate review by at least two courts: (1) an appeal to a state or federal appellate court and (2) a request for review by the United States Supreme Court. In the federal system, this two-step appellate process has been in place for decades. The same cannot be said for the state court systems.

Over the past sixty years, many states have added appellate review by an intermediate appellate court. (3) At present, approximately forty states have intermediate appellate courts. (4) In the states, there is more appellate process now than ever before.

Counting the United States Supreme Court, the federal courts of appeals, state supreme courts, and state intermediate appellate courts, there are more than 100 appellate court systems in the United States. Although each system has its own unique aspects, similarities in appellate processes abound. A common denominator is that each appellate court system involves judicial officers (typically in panels of three or more) reviewing what other judges have done. In doing so, these systems use technology in a variety of different ways.

Historically, use of technology in appellate courts ranged from none to some. Today, the extremes of technology use in appellate courts are (1) purely paper-based and (2) purely paperless. It is true that, since the advent of the electronic word-processor in the 1960s, no appellate system has been purely paper-based. With that caveat, however, some appellate courts are still largely paper-based, particularly in various state systems. "In the federal system," by contrast, "the paperless court is nearly here. With the maturation of the Public Access to Court Electronic Records (PACER) system, virtually every federal, district, appellate, bankruptcy and other specialty court filing may be electronically accessed by the public, the litigants, and the courts. …

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