In Praise of Tortoises

Jeff is currently on vacation and the eFiling series will resume upon his return with part 2 – Electronic Court Filing Standards.

98_tortoiseReading U.S. supreme Court Chief Justice John Roberts’s 2014 Year-End Report on the Federal Judiciary I am reminded of an episode from my parenting years involving my youngest daughter. Trying to get her to do something she didn’t want to do was like trying to get a tree to dance. (On the other hand, standing in her way once she decided to go after something has always been a good way to get run over.)

One year we signed her up for the city’s spring youth run. Great fun, good exercise, flashy medal…. The only problem was, she didn’t feel like running that day.

Now, most kids, surrounded by several hundred OTHER kids, not to mention countless adult supervisors, would have at least tried to keep up with the pack to avoid being identified as the one slow-poke. Not my daughter. In an impressive display of disregard for peer pressure and fear of public humiliation, she strolled. By the end, the adults around her were imploring her to pick up the pace; all to no avail.

Meanwhile, the audience, the other runners, and the subsequent heats all waited. And waited.

My daughter has since grown up to be a formidable, high-performance, successful professional. Interestingly, she uses BOTH traits to her advantage. So maybe she knew what she was doing.

But the wait was STILL frustrating.

With these fond memories in mind, I consider Chief Justice John Roberts’s Report, wherein he discusses the nature and change of technology, particularly Electronic Case Management, Electronic Document Management, and Electronic Filing, in the Supreme Court and in the courts in general. He unabashedly acknowledges not only the usually slow pace of court adoption of new technology, but that the slowness of the pace and resistance to change is in many ways intentional.

“[T]he courts will often choose to be late to the harvest of American ingenuity. Courts are simply different in important respects when it comes to adopting technology, including information technology. While courts routinely consider evidence and issue decisions concerning the latest technological advances, they have proceeded cautiously when it comes to adopting new technologies in certain aspects of their own operations….

“…Federal judges are stewards of a judicial system that has served the Nation effectively for more than two centuries. Like other centuries-old institutions, courts may have practices that seem archaic and inefficient — and some are. But others rest on traditions that embody intangible wisdom. Judges and court executives are understandably circumspect in introducing change to a court system that works well until they are satisfied that they are introducing change for the good….

“…The sculptures that adorn the Supreme Court provide a reminder of that resolve… The often overlooked east pediment, installed on the rear portion of the building, features images of historic lawgivers and other symbolic figures. It is flanked by imagery drawn from a well-known fable: A hare on one side sprints in full extension for the finish line, while a tortoise on the other slowly plods along. Perhaps to remind us of which animal won that famous race, Cass Gilbert placed at the bases of the Court’s exterior lampposts sturdy bronze tortoises, symbolizing the judiciary’s commitment to constant but deliberate progress in the cause of justice.”

Notwithstanding that the Chief Justice articulates that the courts may not move as fast as other institutions and society in general, he clearly declares that change will eventually come, saying

“As technology proceeds apace, we cannot be sure what changes are in store, for the courts or society generally. Innovations will come and go, but the judiciary will continue to make steady progress in employing new technology to provide litigants with fair and efficient access to the courts.”

OK. Some are waiting. But more and more courts are past waiting. ECM and eFiling have in fact become mainstream and of proven reliability. Most courts and their constituents simply cannot afford to eschew their clear advantages. With all due respect to SCOTUS, the courts serve the people; and next race to meet the increasingly complex and pressing societal need for judicial services is well under way. The tortoise never wins the race without pressing deliberately forward.

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