Cashing in on the Investment

Posted on May 7, 2012 | Leave a comment

The other day in the store while going through the checkout, I was reminded of something I had recently  seen regarding court e-filing and the business (and political) case for doing it separate from workflow.  The comment I observed made the point that the impetus for e-filing often comes from the bar.  Indeed, the bar has much to gain from e-filing, which is not to ignore that e-filing can and should provide substantial benefit to the court as well.   And yet, there remain numerous cases where e-filing is more or less “tacked on” to the front end of case and transaction processing and little more.

The thought occurred to me that the first and most obvious proponents of bar code scanning, like the one I had used in the grocery store,  may well have been people tired of standing in checkout lines.  Certainly it did improve the speed, accuracy and efficiency of grocery checkout.  Those old enough to remember when cashiers had to manually key product and price information into a cash register will understand.

Not so obvious, but arguably more important, bar coding rapidly revolutionized inventory control, cash management, customer behavior tracking and prediction, purchasing, and shipping… just to name a few.  Each had more business and financial impact than the improvements in checkout.  Had bar coding in the store ended with expediting checkout, a huge amount of infrastructure already in place to implement it would have been wasted.  The marginal additional costs of leveraging the infrastructure, not to mention changed business partner (supplier, stocker, customer, auditor) behavior, are actually relatively minor in comparison.  In fact, if it had not been leveraged, I wonder if bar coding really would have paid for itself. 

The same question arises regarding e-filing.  While e-filing alone may well meet the requirements and expectations of the filer community, a LOT of unrealized benefit remains on the table.  The really big organizational improvements – financial, quality, efficiency, accountability, flexibility, security – require plugging the e-filing system into a robust, well-designed configurable workflow system.  Configurable workflow will leverage the investment in obtaining clean, reliable, easily processed documents and metadata at the front end. 

As I have mentioned before, virtually every court that has implemented workflow as part of its ECM has learned that the benefits from workflow end up exceeding just about every other benefit.  One of the hardest parts of implementing ECM and workflow is getting documents and metadata into the system.  E-filing, by its nature, goes a long way towards solving that challenge.   While workflow implementation has its own challenges, e-filing can solve that one.

For courts (in fact, for just about any organization; but ESPECIALLY for courts), to be effective the workflow system must be easily configurable.   At the top level, courts have many different case and matter types, each with its own workflow, some of which may be standard and some of which will certainly be unique.  Beyond diversity, changes occur over time.  New facilities, new laws, new labor agreements, new ideas for better ways to do things, new technology, all will precipitate the need to change, update, add and improve workflows.   A workflow system easily configurable by trained court personnel is essential to avoid the unpleasant choice of high-cost programming updates versus increasing obsolescence (or, more likely, both).

I doubt too many grocery stores can stay in business today without robust inventory and process control systems (of which bar coding is the “front end”).  I doubt many grocery suppliers ship product that is not prepared (coded) for use in the systems.  And I doubt that the checkout stand is where the biggest change to the grocery system is being reflected – except in the price.

 

 

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Helpful Hints to Get Judges to Use (and Like) ECM in Courts

Posted on April 23, 2012 | Leave a comment

I recently read Ken Follett’s historical novel A Dangerous Fortune, about English bankers in the late 1900′s.  Follett’s novels are always well researched and full of really cool contemporary technology. 

A few days ago, while discussing judicial use of digital documents with a judge, I observed that many judges are deeply concerned that they cannot easily navigate and use digital documents and files.  Interestingly, their areas of concern — finding the correct document(s), grouping needed documents together, finding information within documents, opening and reading multiple documents simultaneously and switching between them, making notes, etc., — can  be handled better using digital documents within an effective ECM system than by using hard copy files and documents.  The judge laughed, and commented that she drives a car with so many technological features that she doesn’t even know what half of them are, much less how to use them.  Her analogy hit the nail on the head:  A lot of judges simply do not know what today’s ECM systems can let them do.

As we continued talking, I recalled something from the Follett novel.  The difference between the technology being available and people being able to use it has always and probably will always exist.  In A Dangerous Fortune, a young banker, in the aftermath of an embarrassing error by his boss involving a mislaid letter, conceives of and implements a radical new solution:  He takes two boxes, marks one “IN” and the other “OUT”, and places them side by side on his boss’s desk.  The point being, up until then, the technology to order things existed; but no one had figured it out.

The technology of paper documents — arranging them in files; left-side/right-side documents, file tabs, case numbers, color coding, sticky notes, tickler systems — these uses of the “paper” technology were not developed over night; they evolved over a long period.  Eventually, what we use becomes not only familiar, but necessary.  You can bet that at the bank, within a year, no one could operate without IN/OUT boxes.

In the early days of electronic documents, navigation and manipulation presented formidable challenges.  But electronic documents have been around for over fifty years –TWO GENERATIONS.  In the beginning, things as “obvious” as IN/OUT boxes were unknown.  But today, those decades of experience, together with more powerful technology, as well as dedicated design involving judges as core participants, have enabled implementation of electronic document interfaces for judges that are better than paper.  What remains is to show it to them.

Judges and Doctors share a somewhat unique and sometimes counter-productive trait. They are expected by society to know everything, and therefore they find it difficult to be put in situations where they are not the experts.  This keeps them from using technology, and it sometimes keeps them from getting trained.  Zen Buddhism has a term called Shoshin, which means “beginner’s mind”.  “In the beginner’s mind there are many possibilities, in the expert’s mind there are few”.

Courts moving to ECM are well advised to find out, from the most techno-adverse judges, what capabilities and features are most important to what they do with files and documents.  And here’s a hint (as if you didn’t already know it):  They don’t really know how to tell you.  Do yourself a favor and utilize qualified Business Analysts who are experienced in helping judges articulate what they don’t know they know.

Another hint:  Arrange for the judges to SEE how a well-designed and implemented ECM system will be easier and more powerful for them to use, because as much as you talk about it, they will not believe it until they see it. Then provide top-notch training, because they won’t REALLY believe it until they DO it.

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The Retention Dilemma

Posted on April 9, 2012 | Leave a comment

“For every complex problem there is a solution that is simple, neat, and wrong.”  H.L. Mencken

 One particularly persistent obstacle to adoption of the Paper-On-Demand Court paradigm (and the financial savings attendant to it) is how to handle requirements for permanent document retention.   The historical paradigm consisted of the requirement to keep the original document.  Because, almost by definition, the “original document” was hard copy, that meant storing the paper.  Easy to understand; not always easy, safe or inexpensive to do.   More recent retention requirements include the option to copy paper originals to microfilm or microfiche.

With the advent and acceptance of the legal sufficiency of electronic documents and signatures[i], statutes, court rules and general orders routinely validate the electronic version of a document as the “original” and “official” document.  This is true for documents born on paper and later scanned into an ECM system, as well as for documents born electronically (e.g., documents filed electronically or documents created, e-signed, and filed by the court).

So where does that leave the “permanent retention of the original” paradigm?   Under the traditional paradigm, even “original”, “official” documents would have to be copied to either paper or microfiche.

In most states, and at the federal level, the ultimate responsibility for physical retention standards resides in the archivist.  The archivist of one state in which courts are using ECM and E-signature verified that, under current laws and rules, courts are required to keep either paper or microfilm copies of documents.  For documents existing in digital format, this means printing them out. 

OK, then “When would the court be required to do so?”  The answer: There is no time requirement, other than “Some time in the future.”  On checking with a court administrator, I found that, to the extent there is a plan, it is to await future developments in this area.

A visit to a court in another state, which had also adopted a Paper-On-Demand model, found the existing laws and rules, as well as the current approach, are EXACTLY THE SAME: They too had discontinued microfilming pending long-term resolution of this question, and had done so not arbitrarily.  The court had had, for some time, serious concerns about the long-term integrity of microfilm, not to mention significant storage and equipment costs.

I’m beginning to detect a pattern.  States (and the federal government) have been devoting substantial time and effort to development and administration of rigorous, comprehensive records management standards.  While the standards are technologically agnostic, they DO address the technological issues, including how to guard against records becoming inaccessible through technological obsolescence.  The answer generally consists of periodic required reviews of the current and projected technology, together with explicit plans for record migration from generation to generation.  A 2008 National Association of State CIOs paper[ii] contains a good overview (and source material) of such efforts.

As is common in government, judgments are made based on the state of technology at a point in time, and nobody remembers to reassess the decision at a later date.  Much of the consternation with using electronic documents as the original record is rooted in some early failures.  This stems largely from the fact that, at one point, there was no national (or international) standard for file format that would assure long-term viability.  Therefore, vendors created their own proprietary formats, and some organizations got stuck with an electronic repository of documents that was expensive to convert.

The problem was largely solved years ago when ISO and AIIM established standards for the PDF/A, TIFF (TIFF is the standard for storing scanned documents), and JPEG (for photos) file formats.  Even Microsoft had to acquiesce and start using an international standard (DOCX) for storing their files.

So once again, Mencken’s observation hits the nail on the head.  There are plenty of simple answers to permanent retention, but all come with issues.  None is effective without persistent due diligence.  But given the proper commitment to due diligence, some are more effective and less costly than their predecessors.

[i] See Legal Foundations of E-Signatures, [citation and link]

[ii] Ready for the Challenge?  State CIOs and Electronic Records, NASCIO, 2008,  http://www.nascio.org/publications/documents/NASCIO-E-RecordsChallenges.pdf

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The Jevons Paradox

Posted on March 26, 2012 | Leave a comment

What?  You never heard of the Jevons Paradox?  Well, I expect that, given the current debate regarding the price of gas, you likely will even if economics is not your leisure reading subject of choice.  

The Jevons Paradox, described by 19th century economist William Stanley Jevons (1835-1892), contends that improvements in fuel efficiency (then coal) tend to INCREASE, not decrease, total fuel use.  The translation to today’s debate is that adoption of more fuel-efficient vehicles leads, overall, to greater consumption of gasoline.

There’s a lot of really sexy equations and graphs involved; but I confess that math and arithmetic are three of my weak areas.  In English, the two reasons given are that 1) Because your Prius is more fuel-efficient, you will drive it more; and 2) The net result of the efficiencies creates a form of stimulus to the overall economy, resulting in greater fuel consumption.

It occurs to yours truly that The Jevons Paradox provides a possible explanation for a long-observed phenomenon in the world of court technology.  Consider: Technology-based initiatives, when efficiency-generated savings compose a significant part of the justification, have essentially three potential outcomes.  First, they can fail, in which case they cost a lot of money.  Second, they can succeed as planned, in which case the expected savings are generated and overall cost drops.  Third, they can succeed in ways both expected and unexpected to such an extent that courts dramatically increase the service they provide and the overall effectiveness of the justice system increases.  In the real world, the outcomes are almost always either Number One or Number Three.  Rarely, if ever, do service levels remain the same while costs drop.

You hear about this phenomenon at conferences and when you visit courts that have successfully implemented solutions such as ECM, E-Filing, E-Signature, and E-Certification.  Where you DON’T typically hear about it – at least as a primary justification – is at either the business case development stage or during the requests for appropriations from the funding source (elected legislatures, county commissioners, city councils, etc.) who are laser-like focused on reducing cost.  And, unless you ask (and few do), you don’t hear much of it from vendors, who, while they know the potential, are responding to the immediate, public sector imperative for making the business case based primarily on cost in the context of current and next budget cycles.

One compelling aspect of ECM and related technology initiatives like E-Signature, E-Filing, and E-Certification is that they CAN provide the type of rapid, measurable ROI and early break even that strapped public funding entities crave; and they can provide relief to courts suffering from current and projected staffing cuts.  In other words, the cost-based financial case can easily be made.[i]

Even more, however, successful completion of such an “efficiency” initiative will almost certainly accelerate the effectiveness and importance of the court to its community, its funding body, and its business partners. 

Such change, albeit based on success, has its own challenges and potential pitfalls.  Courts should be prepared to “Ride the Tiger”.   Court planners should create a well-developed strategy, partner with an experienced systems integrator and engage in a fully-committed implementation; AND plan for an INCREASE in use of court services.   A year after implementation, no one will be asking, “What did you save?”  Instead, they’ll be asking how can you ride that tiger even further?

[i] See Short-Term Payback & Long-Term Gain from Transitioning to a Paper-On-Demand Court: How Courts Can Realize Rapid ROI from Paper-On-Demand, Jeffrey N. Barlow, 2011 [http://www.imagesoftinc.com/resources-wp-roi-of-pod-signup.html]

 

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Assuring Judicial Work Product Confidentiality in a Paper-On-Demand Court

Posted on March 14, 2012 | Leave a comment

Consider this question: In a paper-on-demand court equipped with an Electronic Content Management (ECM) system, when judges record their personal notes in the records, do those notes become subject to release under Public Disclosure laws?

There is a long and well-settled rule providing exception and privilege for personal notes and working papers, but somehow that fact does not seem to prevent a lot of anxiety when courts are considering a move to a paper-on-demand court. For argument’s sake, let’s assume that the answer is “Yes”. 

The reasoning would be that content in the system (the paper analogy would be “in the file”) is a public record which, as a rule, would be disclosable. Most jurisdictions prohibit destruction of public records without express authority to do so. 

Doubts about the legality and precedent of keeping judges’ work confidential do not withstand analysis.  If a judge tears up or deletes his/her notes to start over, would that then be destruction of a public record?   Are erasures and modifications alterations of a public record?  For a really good, recent, analysis, see “Judicial Authority to Limit Access to Court Records in North Carolina“, December, 2011, by Michael Crowell of the UNC School of Government.

This does not mean courts should not carefully review and, if required, modify rules and statutes to make certain there are no unpleasant surprises following transition to a paper-on-demand court.  Also, close attention in the design phase will minimize problems down the road.  The paper-on-demand court environment IS different than the hard-copy environment. The area of Public Records discoverability has wrinkles in the paper-on-demand environment that never arise in the paper world, as anyone who has ever faced a Freedom of Information Act demand knows all too well.

For many access questions, the loss of the effective “security” of practical inaccessibility constitutes a major challenge when moving to an electronic document management system. Modern systems provide robust and reliable ways to assure confidentiality of data and documents at the system level, and provide electronic audit trails which can be used to further enforce compliance.

However, a few more landmines lurk in the work product area. Here the technology and the legal/rule considerations start to mingle. Public Records statutes and rules typically make exceptions for confidential data (social security numbers, personal information, etc.) and documents (Secret Indictments or jury lists, for example) through specific reference. In those cases then, as long as the system can control access, no questions arise.  

Do current statutes/rules exempt court work product from disclosure? And if they do, do they define work product? More and more do, but not all.

A typical statute/rule change to support introduction of electronic records systems in courts involves stating something to the effect that “the Court Record consists of the records, data, and files in the Electronic System”. When that happens, the particular “confidential” data elements and document types will remain safe. The “work product”, though, may be less certain.

Recommended best practice: 1) Ensure that disclosure rules call out both electronic and paper work product as their own non-disclosable category of information; 2) Maintain the non-disclosable work product documents in separate document types from formal court records, with security configuration that prevents viewing by unauthorized system users; and 3) Support electronic document annotations that don’t technically alter the original document and have their own security distinct from the document (A good ECM system will provide an array of document annotation types, including sticky-notes, highlights, circles, lines, arrows, text, etc.). 

Finally, choose a technology partner with solid experience in court integrations who can help you plan thoroughly and thoughtfully to avoid unexpected surprises when transitioning to a paper-on-demand court.

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Fractals, Chaos Theory, and the Courts

Posted on February 27, 2012 | Leave a comment
Fractal

Fractal

The first time I ever heard of “fractals” was when the Manager of Programming arrived at a  meeting wearing a tee shirt with an incredible design (not the one at left; but equally colorful and cool).  I asked what it was, and he said, “A fractal”.  When I asked him what that meant, he said, “Chaos”.

In a nutshell, Chaos (also know as Complexity) Theory holds that systems, which appear structured and ordered at a distance, are at the atomic level infinitely random.  My first thought was: that sure sounds like a court.

To be clear, “Chaos” does NOT mean “disordered”.  What it means is that outcomes are not predictable.  We know (or believe) many documents will be filed tomorrow, but what will they be; and who will file them?  There is no way to know.

Richard Seel  (http://www.new-paradigm.co.uk/richardseel.htm), in a piece titled “Complexity and Organisation {British spelling} Development”, http://www.new-paradigm.co.uk/complex-od.htm, provides an excellent summary of the properties of Complex Systems:

Emergence

What distinguishes a complex system from a merely complicated one is that some behaviours and patterns emerge in complex systems as a result of the patterns of relationship between the elements.   Emergence is perhaps the key property of complex systems…

Relationships are short-range

Typically, the relationships between elements in a complex system are short-range, that is information is normally received from near neighbours. The richness of the connections means that communications will pass across the system but will probably be modified on the way.

Relationships are non-linear
There are rarely simple cause and effect relationships between elements.

Relationships contain feedback loops

…The effects of an agent’s actions are fed back to the agent and this, in turn, affects the way the agent behaves in the future. This set of constantly adapting nonlinear relationships lies at the heart of what makes a complex system special.

Complex systems are open

Complex systems are open systems—that is, energy and information are constantly being imported and exported across system boundaries. …[E]ven though there is constant change there is also the appearance of stability.

The parts cannot contain the whole

There is a sense in which elements in a complex system cannot ‘know’ what is happening in the system as a whole. If they could, all the complexity would have to be present in that element. Yet since the complexity is created by the relationships between elements, that is simply impossible. A corollary of this is that no element in the system could hope to control the system. {JNB Note: The Presiding Judge and/or Court Administrator cannot control everything that is going on!}

Complex systems have a history

The history of a complex system is important and cannot be ignored… .

Complex systems are nested

Another key aspect of complex adaptive systems is that the components of the system {…are} themselves complex adaptive systems. ..

Boundaries are difficult to determine

It is usually difficult to determine the boundaries of a complex system. The decision is usually based on the observer’s needs and prejudices rather than any intrinsic property of the system itself….

This helps explain why courts and justice systems (gee, where are those boundaries?) are the way they are; why those of us involved with them often have such difficulty in explaining to others why the systems function and behave as they do; and why they are just so darn complicated.  They also help explain why initiatives such as ECM, e-Signature, and e-Filing, to name a few, have such powerful potential.

For example, paper-based, wet signature system workflows are, of necessity, predominantly linear, even though the relationships among those interacting with the documents is highly non-linear.   This situation imposes many levels of inefficiency into the system.  By transitioning to ECM and e-Signature with workflow, the workflow can be more closely aligned with these non-linear relationships and activities, thereby greatly reducing or eliminating the inefficiencies imposed by the limitations of the paper-based, wet signature system.  

Likewise, e-Filing removes the artificial limitations on a fundamentally “open” system – the Justice System, by increasing the efficiencies of importing and exporting documents across organizational (court, prosecutor, law enforcement) boundaries.

Moreover, they contain insight on how to better manage the complexity and organizational change inherent in planning for, designing, and implementing court technology initiatives of the complexity of paper on demand. 

Later we will explore some of these insights in further depth.  For now, contemplate the existential importance of proper professional design, development, and workflow to the success of the court’s transition to paper on demand given the court’s chaotic nature.   And enjoy the fractal.

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Trans-Generational Management

Posted on February 13, 2012 | Leave a comment

Court managers facing complex technological initiatives such as ECM, E-Filing, and E-Justice often encounter significant stress in dealing with a generational diversity of stakeholders.  I have long held that these differences result not mainly from different knowledge (Young people know more? Really?), but from different thinking patterns shaped by the technology environment in which people are raised.

As the rate of change has accelerated over the past half century, the technological environment within which each generation has developed its learning, processing, and action methodologies has been markedly different from that of either its parents or its children.  My parents told me I could not effectively work on homework and listen to the radio at the same time.  Teens today process (not necessarily well; but then I did not always do so well on my homework, either) multiple information streams – video, audio, text, banner – simultaneously.  Ditto most of the workforce under forty.

I offer two vignettes to illustrate my point.

“W.W.”, the senior partner in my first law firm in the mid ’70s, had fifty years experience as a lawyer and judge.   Born near the turn of the century, he came of age with telephones, the automobile, airplanes and typewriters.

With multiple phone lines, transferring calls around the office was a breeze.  W.W., though, would simply shout to the transferee to pick up the phone.  While he knew of and to some extent understood the concept of a com-line, it rarely occurred to him to use it.

Another of W.W.’s practices, which drove his legal assistant to distraction and “wasted” her time, was his habit of dictating, verbatim, every legal document.   She repeatedly protested that she could be working more productively during time spent taking dictation.  Her best friend – my wife, herself a legal assistant with the same technological framework – thoroughly sympathized.   We, more technologically sophisticated, were irritated at his consistent failure to utilize the available technology.

Skipping ahead 25 years to the late ’90s, my family’s technological environment included one landline phone, one cell phone (my wife’s), and an Internet connection through the phone line.  Our mid-teen daughters, it seemed, spent an inordinate amount of time on AOL, which effectively tied up the phone. 

One evening, when my younger daughter was on the Internet, she came to me to say that I should go to the hospital ER, because her sister had been injured at softball practice.  My wife and older daughter were already headed there.   (Postscript: a missed fly ball, resulting in a broken nose, from which my daughter fully recovered.)

HOW did my younger daughter know this? (Remember, the phone line was tied up.)   The Answer:  En route to the hospital, my wife tried calling home, but got a “busy” signal.  As she grew more frantic, my injured daughter calmly instructed my wife to call her friend, Velma, to have her “I.M.” my younger daughter at home.  My wife had no idea what “I.M.” meant, much less how to do it (nor for that matter did I). “Instant Messaging”, though, was all the rage with the teen set.

So my injured daughter talked my wife and Velma through the IM process in order to reach my younger daughter at home.

The kids processed problems and information and automatically responded with an extremely simple solution THAT NEVER OCCURRED TO THE ADULTS.  Just as, 25 years earlier, we had processed information differently than W.W., who had come of age in a very different world. 

And so the evolution continues. With the advent of paradigm-shifting technologies such as ECM and E-Filing in courts, each stakeholder’s reaction – from learning, to adoption, to assimilating the technology into everyday behavior – will be fundamentally influenced by the technological background in which he or she grew up.  Managing these diverse thinking styles day to day is challenging enough, and becomes even more so when planning, designing, and implementing major court technological projects.  Fortunately, by involving professional systems integrators with experience in overseeing these trans-generational forces during Court initiatives, projects can experience a much higher level of success with substantially less stress.

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