Wine, Cloth, Carpentry and Court Automation

By Jeff Barlow, Justice Consultant, ImageSoft

It’s pretty intuitive that when it costs less to acquire and run an automated system than to pay people to do the same work it makes financial sense to implement the technology. However, what is a lot less intuitive, but, paradoxically, a lot more true, is that it can make more financial sense to implement technology even if people could do the tasks for less.

140_competitve theoryWhile reading William Berstein’s A Splendid Exchange: How Trade Shaped the World (a fascinating and incredibly timely read), I had one of those “Aha” moments (either an epiphany or an unscheduled, age-related loss of brain cells, I’m never sure which). This one related to the international trade economic Theory of Comparative Advantage, first promulgated in the early 1800s, and how it might apply to the business case for implementation of automated systems in the courts.

In terms of international trade, the intuitively obvious conclusion is that if one nation (Country A) can produce something for less than another nation (Country B) can produce it, Country A should never buy that product from Country B. That’s what’s called The Principle of Absolute Advantage. Very obvious. Very simple. And, often, very wrong.

The key factor is Opportunity Cost. In the classic example, assume Country A can produce wine for half as much as Country B and cloth for one third as much as Country B. Further assume, in the perfect world of the theoretical economist, that any resources (labor, equipment, land) devoted to production of wine will reduce the amount of cloth that can be produced. In that case, Country A makes out a lot better buying wine from Country B in order to maximize production of the higher-margin cloth.

The part that got me thinking about the technology business case was a non-international (and for me much more understandable) illustration. Assume a highly specialized, very skilled and experienced attorney in high demand can bill $1,000 an hour. Assume also that the attorney is a very skilled carpenter; so much so that the attorney can do in half the time the same quality work as a master carpenter, who charges $100 an hour. As a strictly financial or business proposition (leaving aside personal satisfaction), should the attorney do or not do a DIY remodel job? Clearly, to the extent the time remodeling reduces legal practice billable hours, the attorney is losing (by not earning) money. That’s Opportunity Cost.

Now look at the business case for court technology. Suppose the acquisition and ongoing operational costs, for whatever reason, appear to be greater than or not significantly less than using staff to perform the same functions. While the Principle of Absolute Advantage (the obvious answer) would suggest that it would be more cost effective to forego the technology, such a conclusion may well overlook substantial Opportunity Costs. Simply put, what AREN’T those staff doing when they are manually dealing with those physical documents? What ISN’T the file storage area being used for while it houses all those files? What could those resources be better spent on? And so on.

While not the only question in the business case, how much is “being left on the table” should absolutely go into the calculation. If every staff person were capable of transporting, filing, or tracking documents and nothing else, perhaps the Opportunity Cost would be low. But that’s rarely the case. Those folks could be, and should be, and would be happier doing so much more.

 

eFiling: Audit Trail and Confidentiality

This is Part 10 of 10 in the eFiling Blog Series, check out Part 9 here.

To conclude this eFiling series, let’s look back at a few pieces posted in the past that dealt with the enhancement of both the audit trail and the control over confidentiality offered by eFiling.

Audit Trail

One of the fun pieces I wrote, inspired by a presentation David Slayton, included an explanation of the audit trail provided by a good eFiling system.

[David] says … “… I know EXACTLY where the document came from, and whose profile was used to send it.” Knowing that a document has come from the right place, and knowing whose secure profile was used to send it, constitute security orders of magnitude greater than a written signature on a piece of paper…

Taking David’s point a step further, in an appropriately implemented Enterprise Content Management (ECM) with workflow system, not only do you know where the document came from, you know where it’s been and where it’s supposed to be going. It’s like Billy’s trail in the Family Circus: it leaves its tracks. It keeps track of who has looked at it and when. It keeps track of what was done to it, by whom, and when. And, unlike Hansel and Gretel’s breadcrumb trail, it doesn’t disappear.

91_familycircus

…. [I]n a properly implemented ECM with workflow system, not only do we know that the document comes from who it’s supposed to; we know whether or not it’s been altered since it was sent, who has touched it, where it’s been, where it’s heading, whether it’s behavior makes sense, and if not, what would make better sense.

Stalking the Wily Electronic Documents, January 12, 2015

In another piece, I got to use one of my favorite pieces of doggerel (“Last night I saw upon the stair/ A little man who wasn’t there…”) to illustrate how a well-designed ECM system provides auditable Record Integrity:

A reliable document Chain of Custody in the paper world is merely a means of attempting to protect the Principal of Integrity. (Albeit an expensive, labor-intensive, highly unreliable, almost-never-completely followed means). Even with special viewing areas and monitors, do courts control ALL access by ALL staff, ALL attorneys, and ALL judges, not to mention cleaning and security staff? Not usually.

ECM provides a built-in mechanism for maintaining an audit trail of the Chain of Custody for court documents, providing end-to-end assurance of document integrity. ECM users view documents on screen and don’t come in contact with the physical file. From identity and signature authentication (when needed) at the front end, through tracking who accesses each document and when, to ”locking out changes” to prevent tampering, ECM absolutely protects document integrity…

Proving the Negative, October 3, 2011

Confidentiality

Confidentiality has several aspects. There’s things like judge’s notes, intended only for the judge or designated persons. Then there’s confidential information, like Social Security Numbers, minors’ names, abuse victims’ addresses, and so on, contained in otherwise public documents. There are totally confidential documents, like Secret Indictments. There are confidential case types, like some juvenile matters or adoptions, where the entire case is confidential.

eFiling and ECM provide greater control of confidential information, at all levels of granularity – from individual data element to entire case. Who can see what can be tightly controlled and administered. So, for example, attorneys on confidential juvenile cases can see their clients’ files, but no others. Court employees and judges with clearance can see confidential data that has been redacted using automated, workflow-enabled tools making it invisible to unauthorized persons.

However, as I noted in the March 14, 2012 posting,

This does not mean courts should not carefully review and, if required, modify rules and statutes to make certain there are no unpleasant surprises … 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…

… 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

Assuring Judicial Work Product Confidentiality in a Paper-On-Demand Court, March 12, 2012

While the business case for eFiling generally emphasizes the savings, convenience, work process streamlining, and quality improvements, the benefits of having a robust, easily managed audit trail and greatly enhanced control over confidentiality certainly should not be overlooked as additional “low-hanging fruit” when moving to eFiling and ECM.