Of Two Minds

OPINION: Paralleling the history of civil law, the Internet has opened the door to theft, fraud, defamation and incursions into personal privacy.

Verdicts & Settlements, December 15, 2001

by Lawrence C. Waddington

   In adapting technology to law practice, attorneys have incorporated faxes, e-mail and cell phones in order to accelerate communication. The judicial system has permitted electronic filing, introduced computers into the courtroom to assist in retrieving information and/or documents, and added judicial opinions online. But computers, and technology in general, are impersonal, unhuman and designed to passively confront the "business" of the law. The heart of the law is people, not product.

Courtrooms, and the legal system in general, are established to serve as focal points to resolve disputes, confirm legal rights, adjudicate personal relationships and resolve countless details affecting the lives of people. Important as it is to facilitate calendaring, retrieve documents and store information, judges must often sacrifice efficiency to the "fairness" required among adverse parties in the legal world. The judicial system is an adversarial one where the parties may seek goals other than swift resolution. Compounding the tension between human values and caseload is the overlay of procedural and substantive law with its potential for disagreement, misuse or misunderstanding.

Aside from creating a more efficient record keeping and document retrieval system to manage the "business" component of courts, technology can resolve some of the "people" problems with its ability to transcend geographical boundary lines yet continue to maintain personal relationships.

Parties in civil litigation cannot always escape the necessity of traveling to a courthouse for a hearing, a lawyer's office to submit to a deposition, or a doctor's office to undergo a medical examination. But in heavily populated cities clogged with traffic, or rural areas involving substantial travel time to a courthouse, technology can eliminate the necessity of transporting litigants or witnesses from one location to another. The technology exists to videotape litigants for subsequent presentation of their testimony in the courtroom. Similar technology enables lawyers to examine witnesses without traveling to the courthouse to testify: videoconferencing.

Judges and lawyers are accustomed to the familiar format of the courtroom, and jurors evaluate credibility of witnesses by observing their demeanor and listening to testimony. But in an age of pervasive television, the camera can visually duplicate people, places and events on the screen with a clarity that could be loosely characterized as "virtual presence." The camera can record graphs, charts and documents, which require no "personal presence," as graphically on a television monitor as if the items were present in court. Films, tapes and photographs are no strangers to presenting evidence in the courtroom as surrogates for the "real "presence" of objects or people.

In the new millennium, the public is accustomed to endless exposure of trials on film and television. Admittedly, scenes are edited and scripted, but the camera does replicate the characters while the audience observes. Assume we substitute jurors for television viewers. Assume further that judge, jurors, the parties and counsel are in a courtroom equipped with a television monitor but that the witness is located remotely in a facility equipped with video conferencing. Counsel for the plaintiff examines while judge, jurors and defense counsel see the witness and hear the answers to questions on the monitor; counsel for the defendant cross-examines. In a litigation format, lawyers in a courtroom who conduct direct and cross-examination of a witness located remotely from the courthouse are the equivalent of interactive television.

Or substitute an arbitration where both parties and their counsel are at different remote locations and an arbitrator at a third location. In this example, both lawyers examine and cross-examine the parties over video conferencing facilities while the arbitrator watches a television monitor of the examination. The parties fax or e-mail their briefs, documents or exhibits in advance or simultaneously with the arbitration.

Video conferencing as a business tool is not revolutionary, its use relatively common and limited only by cost and installation of sufficient facilities that are economically beneficial. The ability to see and hear a conference participant is also restricted to presentations that mandate audio coupled with video. Disconnecting the person from the voice is not a novelty- conference calls accomplish that easily - but is useful only for the exchange of information, not evaluating testimony. Television viewing replaces personal interaction while the viewer watches, similar to a jury, passively but without participation. Video conferencing includes the person connected with the voice combined with interaction between counsel and witness.

The commercial world communicated either personally or in writing for centuries until the advent of the Internet enabled parties to enter contracts, acquire property or license products or ideas with the "click of a mouse."

The electronic signature, properly authenticated, now equates to "offer and acceptance" in the language of contact. But history inevitably repeats itself as parties using the Internet breach contracts, commit torts and impair property or intellectual rights. Although the computer elite urge "thinking outside the box" in some contexts, the flexibility of American law is more likely to replicate traditional contract, tort or property law in redressing wrongful or negligent conduct. Paralleling the history of civil law, the Internet has opened the door to theft, fraud, defamation and incursions of personal privacy. Disrupting commerce and wreaking havoc in business and personal relationships, a new semantic world of hackers, spammers and cybersquatters has emerged. The Internet, essentially unregulated, will compel civil practitioners and prosecutors alike to equate litigation and prosecution to what one commentator called "lassoing the Wild West." Just as the Industrial Age opened exciting and novel prospects to the world, shunting aside familiar jobs and confronting a new legal frontier, the Internet promises a wild and bumpy legal ride.

The Internet, aside from its domestic use, may facilitate commercial international transactions, but redressing breach, injury and loss with an enforceable remedy is daunting. Civil practitioners and prosecutors enforcing civil and criminal law confront innumerable conflicts of substantive and procedural law governing a disputed international transaction or crime. Comparing the predominant Civil Code of Europe with common law reflects their respective incompatible judicial systems. Equally important is a determination of the appropriate forum for adjudication. In addition to jurisdictional issues, countries without Internet access or lacking an integrated judicial system are likely to fall further behind in the commercial world. Connection to the Internet and its instant communication is not universally available.

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