- This month’s newsletter is about technology and the law in times of crisis. You’ve spent the bulk of your career in the public sector, from the US Department of Justice to clerking at the US Court of Federal Claims to being a special master since 2006. Your role as special master started during a time of dramatic changes in technology, including the advent of video conferencing, social media and technology-enhanced courtrooms and classrooms. How has that informed your view of the ability of the technology to be a useful tool in every day practice as well as a force of stability in the law during a national crisis such as COVID-19?
Answer: Through its continuation of operations program (“COOP”), OSM routinely practiced teleworking and these COOP exercises started years before the pandemic. I think this experience made OSM comfortable to carrying out most functions remotely, at least for a few days. No one expected that public health officials would recommend working-at-home for months.
- Did your view of the role of technology in the law evolve as you transitioned from law clerk to special master? If so, how?
Answer: The big change in technology happened around the time I left the Department of Justice to become a special master. In 2004, the Court of Federal Claims had recently authorized filing materials electronically. At this time, discovery of electronically stored information was starting to increase dramatically. (I consider myself fortunate to have stopped representing agencies of the United States before I was responsible for overseeing searches of emails, laptops, network storage, etc.)
OSM was slower to adopt electronic filing but its use has been a great success. Although some attorneys were reluctant to switch to scanning medical records, everyone now wonders how we ever did cases when everything was in paper only.
Social media is slowly affecting cases at OSM. Postings on social media can support (or undermine) a petitioner’s claim about when he or she began to suffer an injury.
- You had one of the first Skype hearings this year as a result of social distancing requirements due to COVID-19. Can you tell us your experience with that, good and bad?
Answer: Overwhelmingly excellent. Much credit goes to the Court’s Information Technology group and to my law clerk. They practiced connections with the attorneys, the witnesses, and the court reporter. On the day of the hearing, it was a smoothly operating, well-oiled machine.
Before the hearing, we anticipated the use of documents. Days before the hearing, the petitioner’s attorney delivered a set of documents to the witnesses electronically.
The witnesses benefitted from having two screens. For example, one witness placed the PDF exhibits on one lap top and used a second lap top as the means to connect to the Skype call. Another solution is to have a second monitor.
Although the attorneys through the “share screen” feature could present documents to the witnesses, people seemed more comfortable having their own set of exhibits.
- What role does the Bar play in the development and use of technology in the law and the courtroom?
Answer: The Bar and the Court should partner. At times, the Bar might take the lead by proposing the use of technology in a hearing because, for example, the attorneys have used a particular type of technology in a district court hearing. The attorneys could suggest that the judge or special master facilitate its use at the Court of Federal Claims. Judges and special masters are likely to learn about the newest courtroom technologies when attorneys bring it to our attention.
At other times, the Court might influence how technology is used. For example, the Court perceived security risks in using Zoom technology and, therefore, restricted its use. The attorneys may not be aware that some technologies could implicate the security of the Court’s network.
- What is the role of special masters in promoting and using technology in the courtroom generally as well as in times of crisis?
Answer: Technology can make the processing of cases easier. Everyone, I think, agrees that electronic (not paper) medical records are advantageous. PDF versions of medical records can be searched for “seizure,” making identifying relevant typed medical records easier.
An area in which I have started to dip my toe is to ask petitioners’ attorneys to submit their timesheets via Excel. I have explained to the attorneys that I believe that most time-keeping programs create an Excel file easily. If the attorney or paralegal needs to spend more than 10 minutes producing an Excel spreadsheet, then the attorney should inform me that the request cannot be done easily. Through Excel, I have reviewed timesheets, assessed the reasonableness, and written decisions more quickly.
Rapid Fire Round!
- Mac or PC?
Answer: PC almost all of the time because the Court provides PCs. However, I have a Mac that I have used to edit home movies.
- Top-three songs on your Spotify/I-tunes playlist?
Answer: I confess that I do not listen to much music. From the early 80’s, I like The Police, the Talking Heads, and Joni Mitchell.
- Playing basketball or watching March Madness?
Answer: Playing basketball. During the pandemic, I have greatly missed my weekly Sunday-night basketball game. I think other players might describe me as a “sneaky scorer,” which is a polite way of saying that any hoops I score are surprises.
- Favorite Beach?
- Stay-at-Home Binge: books or television?
Answer: Books. However, I watched and recommend The People vs. O.J. Simpson, on Netflix. I am looking forward to the next season of Stranger Things, although the release will not be for many months.
The Bar Association provides its members numerous educational opportunities and opportunities for practitioners to meet and interact with the judges of the Court and colleagues from both public and private practice for these purposes. Our members work closely with the Court’s judges to develop programs, contribute to revisions of the Court’s Rules, and organize a broad range of educational and other activities.