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Cyberspace law practice - the obstacles.

Lawyers today stand at the threshold of practicing primarily in cyberspace, but they have yet to cross it. Transmitting official documents electronically raises questions not contemplated in the precomputer age when the rules of procedure were formulated--questions arising from the everyday protocols of litigation.

In April 1996, an English judge made history by allowing the London firm of Schilling & Lom to serve an injunction solely by e-mail.

The firm's client had been harassed by someone known only by an Internet pseudonym who threatened to distribute libelous material about the client. The order allowed service of process to the harasser's two e-mail addresses and, reportedly, this person's Internet service provider.

But the precedential value of the judge's order is questionable. There was no way to effect service other than by sending the injunction to the harasser's e-mail addresses, at least until a "snail mail" (post office) address was obtained. Because the individual acknowledged service, questions such as how to prove service of process via e-mail and when this service is deemed received were left unresolved. (Nick Lockett & Roger Bickerstaff, Recent Developments in Internet Law, CCTA Law and Internet 96 (visited Dec. 17, 1996) http://www. barristers.co.uk/ccta.htm.

Similarly, suggestions that class action and bankruptcy notices could be issued over the Internet--certainly a savings over notice by mail or publication in newspapers--give rise to questions regarding what constitutes adequate notice. Critics point out that electronic notice goes mostly to upscale, professional, usually male Internet users, while this kind of large scale litigation often involves subjects such as breast implants, mobile homes, and asbestos, where many of the intended recipients are unlikely to have access to a computer. (Katherine Kinsella, Letter to the Editor, Internet Not Enough for Legal Notices, Nat'l L.J., Aug. 12,1996, at A14.)

The Federal Rules of Appellate Procedure were amended last year to allow electronic filing--delivery via e-mail, the Internet, facsimile, or computer disk--in federal appellate courts. The amendment states that a court of appeals may promulgate a local rule permitting papers to be filed, signed, or verified by electronic means adhering to the technical standards established by the Judicial Conference of the United States. (Fed. R. App. P. 25.)

This spring, the Administrative Office of the U.S. Courts issued a paper titled Electronic Case Files in the Federal Courts. A Preliminary Examination of Goals, Issues, and the Road Ahead, which discusses the issues posed by electronic filing. These include authentication, security, and preservation of electronic documents, as well as potential changes to rules of procedure governing service, notice, timeliness, and document formats. The paper can be obtained from the Administrative Office of the U.S. Courts' Web site at http://www. uscourts.gov.

The fact that technical standards and new rules of procedure are only in the discussion stage, however, spelled trouble for one recent attempt to file a federal appellate brief on CD-ROM. In Yukiyo, Ltd. v. Watanabe, the court ruled that, because the Judicial Conference's proposed standards do not specifically address filing a CD-ROM brief, and the court had not issued a local rule governing these filings, Yukiyo should have sought the court's permission to file the brief beforehand. (111 F3d 883 (Fed. Cir. 1997).)

Moreover, the court found that filing the brief prejudiced an opposing party because it did not have the computer equipment needed to view the CD-ROM. Granting a motion to strike the brief, the court in dicta also raised the question whether it was appropriate for the CD-ROM, which had hypertext links to all referenced materials, to give access to matters outside the record, such as Web sites.

In contrast, the U.S. Supreme Court has allowed the filing of a hypertext-linked CD-ROM brief in a case concerning the Communications Decency Act. (Reno v. ACLU, No. 96-511.) The brief can be viewed at http://www.shsl.com. Just two years ago, the Court refused to accept briefs of this kind because it was not equipped to view them.

Other federal courts that have been experimenting with electronic filing of briefs include the Bankruptcy Court for the Southern District of New York, which maintains a Web site at http://www.nysb.uscourts.gov, and the U.S. District Court for the District of New Mexico, whose Web site address is http://www.nmcourt.fed.us/dcdocs.

Websurfing attorneys can find more discussion of the issues facing courts, both state and federal, in the Internet era by visiting the home page of the Judicial Electronic Document & Data Interchange (JEDDI) Foundation, http://www.jeddi.org, and by accessing the Interim Report to the Arizona Supreme Court Commission on Technology at http://lawonlinejp.pimagov/ interim/report.htm.

Peter C. Quinn is managing editor of the ATLA Law Reporters. He can be reached at peter.quinn@atlahq.org.
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Author:Quinn, Peter C.
Publication:Trial
Date:Aug 1, 1997
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