A couple of things happened this week that got me thinking about open access to the courts, its virtues, and the ways courts have to adapt to keep realizing that goal. The first, is I listened to an NPR story that got me all riled up (happens more than I care to admit) about cameras in the courtroom. Following closely on the heels of that, I got yelled at in a clerk’s office (well, strongly questioned and admonished) for scanning documents rather than having them copied. Harrumph.
On Tuesday Radio Boston had a great segment regarding the pros and cons of video cameras in Federal Courts. Arguing for cameras was the inimitable retired Federal Court Judge Nancy Gertner, who first came to my attention while overseeing the Joel Tenenbaum litigation in U.S. District Court here in Boston. Arguing against cameras was Boston College Law School professor David Olson. The thrust of Judge Gernter’s argument was that as a country we’ve committed to the idea of courts as a public forum, and given the state of technology (and the fact that many federal cases, like the Whitey Bulger trial currently, are already recorded and live streamed to overflow courtrooms for viewers and reporters), a failure to get cameras in the court room and give judges the option to use them means we’re really only paying lip service to the idea of a public courtroom without actually living up to that ideal. She further believed that anything that gives the public more access to what’s actually going on in a courtroom, without it being filtered through a potentially biased or inaccurate medium like the media, is ultimately good for public knowledge and public faith in and understanding of the legal system. In other words, the more accurate information we can get out there the better. Sounds great.
Professor Olson’s counterpoints I found less convincing. Among them, he highlighted a concern for the safety of victims and witnesses, a concern that lawyers would take the opportunity to grand stand and try cases in the media, and a rather mystifying, paternalistic belief that the public is actually better served receiving information about the courts through the filter of journalists in the courtroom recounting the day’s tales, choosing what to highlight, and putting their own spin on it. Judge Gertner responded, I think very effectively, that judges have all the tools they need to protect witnesses and victims when necessary (including the ability to turn off cameras, close courtrooms, and impound evidence) and that the lack of cameras has hardly prevented high profile cases from being tried in the media. I’d add on my own that a lawyer will grandstand to himself in the mirror (and I firmly count myself in this class), and therefore certainly does not need the incentive of a camera to access the full depths of his or her showmanship.
I think, in evaluating the arguments, it’s worth noting that Judge Gertner preceded her nearly 20 years on the bench overseeing trials with 20 years of trying cases as a criminal defense and civil rights attorney, while Professor Olson was a patent litigator in BigLaw before removing himself to academia. As I’m sure you can tell, I sided strongly with the lady with 40 years of courtroom experience.
Then I visited a clerk’s office that will remain nameless for purposes of my continued ability to get things done in this town. To begin with, this particular clerk’s office has no public computer available by which to search through current court records and dockets. Every other clerk’s office I’ve ever been to, including the other offices in the same building, have such a computer. Other clerk’s offices in other court houses have such computers, and those computers let you search the records for this court. So the info’s out there, the system’s in place, every other court lets you search this info, but this clerk’s office chooses not to. Fine, I can deal with that.
So I get the case files I wanted to review, I take a look through them, and I decide to make a quick scan of a couple sheets using a scanning app on my phone. Several minutes after doing so, I’m politely informed that I’m not allowed to scan anything without permission. All apologies, I explain what was scanned, what I was doing, and ask how to get permission in advance for future reference. As it turns out, they don’t really give permission, the reasoning being that if they let people scan, then they wouldn’t get any money by charging for copies. Well, that’s a reason, I guess.
I believe in a wide-open judiciary, and I believe, as Justice Brandeis did, that sunlight is the best disinfectant. I believe that a court system that people can see and understand and navigate is a vital part of a functioning democracy, and is absolutely essential to the public’s continued (renewed?) faith in our justice system. To that end, I believe that wherever possible, we should do everything we can to make access to actual proceedings as easy as possible. We should make access to information as easy as possible. When someone has to go to a courthouse to look up documents, that inhibits the free transfer of information about what’s happening in our courts. When they have to ask a (sometimes hostile) person to run their searches for them and then tell them what’s on their screen, that puts another unnecessary layer between the information and the people and makes it less likely that information will actually be transferred. Same goes with access to actual proceedings. Access to proceedings and information about court action isn’t just a good in a vague, “informed democratic populace” kind of way though. It’s good because it provides tangible benefits.
This can be highlighted in the recent Prenda litigation, where attorneys for defendants used the Federal Court’s excellent PACER document management system to view cases in other jurisdictions and view the documents in those cases right from their office computers. This allowed those attorneys to figure out the nationwide scheme that has already been decried as wildly fraudulent by one federal court judge and that is currently being investigated by several other courts, law enforcement authorities, and bar associations. Imagine how much more quickly that saga would have proceeded if attorneys could watch video of hearings in which the Prenda parties made their contradictory claims and arguments throughout the country, rather than having to wait, pay for, and filter through transcripts.
I think it’s also clear that more open access to the courts and the information contained in them would be huge for the knowledge of not just the public, but of attorneys themselves. As a young, still relatively new attorney, I can tell you that there is no better learning experience than sitting in a courtroom for a day and just seeing what goes on. There’s also no better way to start drafting a document than to take a look and work off of a really well done example that’s succeeded in the past. If I could watch trials in my downtime (very few take place on nights and weekends), that would be incredibly educational. If I could watch a proceeding in a western Massachusetts courthouse before heading out there for a hearing, I’d be a lot less likely get yelled at by a clerk (though not entirely unlikely). If a pro se litigant could hop online and watch an eviction action unfold, they’d be a lot less likely to show up, go into the wrong courtroom, not understand what’s going on, get defaulted, and accidentally lose their home.
In other words, more, accurate information can never be bad. Which brings me back to the two things that led to this lengthy rant: the argument over cameras in the courtroom and my less than excellent experience in a clerk’s office. I absolutely understand that there are practical and very real financial barriers that prevent me from having all the information and access exactly how I want it when I want it. I’m also not so hubristic as to think that the legal system, that carried on just fine before me and will be just fine without me, should cater to me just because I’m used to this kind of access in other areas. I also recognize that the court system, both federally and locally, has made excellent progress in exactly the areas I want it to. I’ve already mentioned PACER on the federal level, and here in Massachusetts there was the short-lived OpenCourt project, the Superior Court has full dockets online (and more coming soon supposedly), and the Housing Courts, Land Court, and Probate Courts just got their dockets online. So we’re making great progress.
But I also don’t think that the legal system should actively put up barriers to this access, should actively fight against it, should actively work to keep the legal system a game played by insiders. I think that the argument against cameras in the courtroom, while well intentioned, is just this kind of work, as is the perpetuation of a procedure where litigants can’t look up their own records or are forced to pay for public record documents, even when they don’t want to make copies.