Technology could block access to open courts

Friday, July 28, 2000

What the Internet giveth, we’re beginning to learn, the Internet
can taketh away.

As Internet use has exploded in recent years, reporters understandably
have marveled at the volumes of information now at their fingertips. Personal
privacy, it seems, is passé. Anyone with a PC and a modem can gather news
from around the globe without leaving his or her desk. Thanks to technology,
information is easier and easier to obtain.

But there’s a catch. City councils, school boards and other
governmental agencies, we’ve seen, frequently use e-mail to meet
electronically, outside of public view and in violation of open-meetings laws.
In many cases, they claim no harm is intended. Sending an e-mail, they say, is
just so much easier than scheduling and attending a public meeting.

However innocent or well-meaning, this rationalization threatens the
tradition of openness that has nourished our democratic society. And if recent
experience in Ohio is any guide, we soon might be facing the same threat to our
judicial system.

In what judges and lawyers are applauding as an innovative and
time-saving approach to pre-trial proceedings, Ohio Common Pleas Judge James
Kimbler recently conducted three court hearings in cyberspace. Through an
America Online chat room, Kimbler – who sits in Medina, Ohio –
heard arguments in a deceptive-advertising class action suit from attorneys in
Cleveland and Sandusky, Ohio. Kimbler told Lawyers
Weekly USA
newspaper that he experimented with the chat room to
cut down on the lawyers’ travel time and to save their clients money.

The price of this convenience, however, was the elimination of any
opportunity for the media to cover the hearings. While no media apparently
expressed any interest in attending the proceedings, holding hearings through a
computer in a judge’s chambers ensures that reporters won’t happen
upon them. And, according to Kimbler, hackers won’t threaten the
parties’ privacy either.

“If anyone was trying to hack into the proceeding,”
Kimbler told Lawyers Weekly USA,
“they’d have to know that we were having it and when it was
scheduled for, and that’s very unlikely.”

While protecting a chat room discussion from hackers doesn’t
necessarily equate to locking a courtroom door, the notion that parties should
be free to conduct pre-trial hearings in private must be carefully limited.

Conferences in chambers always have been a gray-area exception to the
rule that courts be open to the press and public. Judges and lawyers, of
course, cannot adjourn to chambers solely to avoid media coverage of
substantive hearings and arguments. On the other hand, judges and lawyers must
be able to negotiate settlements in private and handle routine procedural
matters over the telephone. Where to draw this line in other cases, however,
has proven to be a challenge, one that typically focuses on whether a tradition
of openness surrounds the particular hearing.

Relying on tradition, however, might seem antiquated as more and more
judges incorporate cyberspace into their courtrooms. Fredric Lederer, director
of William & Mary College’s Courtroom 21 program, for example,
predicts that many judges soon will be experimenting with technology even more
sophisticated that chat rooms.

“I don’t think it will be long before courts will use Web
cams to receive an attorney’s argument via the Internet,” Lederer
told Lawyers Weekly USA.
“Computer audio and video is already generally available so lawyers,
judges and parties can see and hear each other.”

Missing from Lederer’s list of participants, of course, are
reporters. While using Web cams and chat rooms need not prevent the media from
covering the judicial system, care must be taken to ensure that technology does
not deny reporters the access to court proceedings they traditionally have

If used properly, in fact, these technological advances might even
increase and enhance court coverage. Reporters conceivably could
“attend” hearings in faraway venues, obtain instantaneous
transcripts and monitor more than one hearing at a time.

Ironically, however, whether these goals are achieved won’t
depend on the technology itself. Instead, it will depend on whether the judges
utilizing this technology use it to open or close the courtroom door.

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