MICHIGAN'S CYBERCOURT:
Worthy Experiment Or Virtual Daydream?

By October, I will be able to start appearing in court from home dressed in my pajamas - at least in Michigan. In early January, Michigan Governor John Engler signed legislation that establishes the first "cybercourt" in the United States and perhaps the world.

Most commentators have either praised this announcement or discussed its cool, futuristic quality. Few have questioned the cybercourt's merit. Virtual courts mean virtual dollars, at least for those states that are quick enough to provide cyber forums for tech-savvy companies. Still, there are a number of questions about cybercourts that have not yet been asked, and should be.

What Happens in a Virtual Court?

Governor Engler first floated the idea of a cybercourt during his 2001 State of the State address. Legislation creating the court was passed last December, and became law on January 9 of this year.

In the Michigan cybercourt, a judge (no jury will be involved) will hear business and commercial cases in which the amount in dispute exceeds $25,000. Decisions can be appealed to the (noncyber) Court of Appeals. The court's jurisdiction will be concurrent with that of other courts - meaning that it is the plaintiff's choose whether to sue in the virtual court.

Moreover, if the defendant objects to the case having been filed in the cybercourt, the defendant can seek to remove the case to the circuit court (that is, the ordinary court). Failure to timely remove a case, however, means that the defendant has waived the right to a trial by jury, and to trial before a noncybercourt. Thus, a defendant (or a plaintiff, for that matter) who starts a cybercourt trial and realizes that trial via the Internet is not right for them is simply out of luck.

In Michigan's brave new cybercourt, lawyers will be able to file their briefs online; argue their cases and appear in court via videoconference; and present evidence via streaming audio and video. Cybercourt judges will presumably be trained in the latest technological gadgetry.

At first glance, a cybercourt promises some exciting opportunities and innovations. Eliminating paper, document filing costs, waiting time, and travel costs ought to save time and money - particularly for lawyers outside Michigan. The Michigan Bar has even drafted "proposed rules" for the cybercourt, to deal with issues such as document authentication and electronic filing.

Is Michigan the Next Delaware for the High Tech Sector?

Both Michigan's Governor and the sponsor of the bill, Michigan Representative Marc Shulman have stated that the cybercourt initiative is meant to attract "new economy" businesses to Michigan. Tax incentives are also in the offing for these businesses. Just as Delaware is the favored state of incorporation for large corporations, Michigan is meant to become an attractive site for major high tech players.

A cybercourt for commercial and business disputes among high tech companies sounds, at first, like a very good idea. But the cybercourt's jurisdiction may be wider that that.

The cybercourt legislation defines "business and commercial actions" as " disputes arising between business owners, associates, or competitors or between a business entity and its customers." Only certain types of business disputes can be heard, but again the category is wide - including disputes related to information technology, the internal organization of business entities (including partnerships), business agreements and commercial transactions. Tort and employment cases are specifically excluded.

These definitions of the court's jurisdiction implies that the cybercourt may not necessarily hear only disputes between corporate behemoths. On the contrary, the cybercourt could hear lawsuits between small companies and large ones, or even between individual partners in a family-owned business. In addition, "business customers" might be interpreted to include consumers - so they may end up in the cybercourt as well.

That raises an important question: Will the Internet provide a level playing field for cases involving a giant company on one side and a small start up on the other? Granted, there are inequities in today's courts, but will the ability of one party to have access to superior computer technology further alter the playing field?

The Costs and Benefits of Electronic Document Filing and Trial

Meanwhile, electronic filing may indeed be the wave of the future; many courts are creating systems and procedures to facilitate online filing and access to court records. This may be fine for the parties involved, but for others, it may play into the digital divide. When deciding to go virtual, states need to factor in how the public - especially the members of the public without computer access - will be able to obtain copies of electronic records.

An electronic court will also change the nature of a trial. Will lawyers need special training in order to present cases via the Internet? What if the technology breaks down or is not sufficient to deliver high quality, high-resolution images and sound?

Moreover, even if everyone concerned is properly trained and the technology is excellent and performs well, an important question remains: Will judges and lawyers be able to reliably gauge the credibility of a witness if questioning him or her via the Internet? Witness testimony is the foundation for our entire trial system, and if a cybercourt system that undermines the ability to assess its credibility, that is a huge fault in the system - and perhaps a reason to return to live testimony.

Online Dispute Resolution, Private and Public

In addition to Michigan's cybercourt, there are many new public and private sector initiatives that take alternative dispute resolution (ADR) onto the Internet. There are new companies that provide online mediation and arbitration services for businesses as well as consumers. There are even companies, such as icourthouse.com, that provide a virtual courthouse setting but do so outside of the real court system.

At the University of Maryland, a pilot project, Mediate-net, was established to provide online mediation of family law disputes for Maryland residents. Singapore's courts offer a program known as e@dr, which is a government-sponsored online Alternative Dispute Resolution program. Meanwhile, the European Union has recently launched its own pilot online mediation service, ECODIR.

Some of the private companies are struggling to remain financially viable. This calls into question whether the time is right for the government to move into the online dispute resolution business. If businesses are not lining up to use virtual arbitration services in large numbers, is there compelling evidence of a demand for such services? What if the cybercourt opens, at significant cost, and no one opts to try their cases there?

These new government-sponsored and private online ADR initiatives also raise some of the same concerns regarding justice and fairness, as does the Michigan cybercout initiative. The main difference, however, is that the private initiatives are meant to be alternatives to court.

Unlike the Michigan cybercourt, the judgments of which will be binding, the results of Singapore and EU government-sponsored initiatives are non-binding - that is, if parties do not like the result, they can walk away and avail themselves of the traditional court system instead. State cybercourt systems like Michigan's, because they impose a binding result on parties, may have a higher duty when it comes to ensuring the quality and fairness of their procedures. Parties cannot walk away from Michigan cybercourt judgments; they must live with them.

Some may criticize courts for moving to slowly to embrace the Internet revolution. Yet it may be wise for the courts to wait, in order to watch and learn from the virtual experiments that are being offered by the private sector. Alternatively, Michigan and other states might want to offer non-binding dispute resolution via the Internet as a prelude to creating virtual courts.

Will We All Be In Cybercourt Soon?

In the future, we may see additional disputes being routed to cybercourts, and additional states adopting cybercourt programs.

Not later than October 1, 2004, the Michigan state court administrator is required to submit a written report to the legislature on the operation of the cybercourt. The report is meant to include recommendations, if any, for expanding the jurisdiction of the cyber court to encompass other matters.

Representative Shulman, who sponsored the cybercourt legislation, has stated publicly that the business cybercourt is just the beginning. He mentions family law and administrative law disputes as other areas where technology can be utilized. But that seems troubling. Child custody battles over the Internet? Is this where we want to go?

We will have to wait and see how Michigan's experiment succeeds. At the same time, we should not forget to factor human considerations into the development of the cybercourt, and not be star-struck by the project's high tech nature.