Virtual Civil Litigation: A Visit to John Bunyan's Celestial City

Abstract

This essay is a speculation on the future impact on civil procedure of the invention of the computer chip. Given easy, almost costless, preservation of images in digitized form, and their instantaneous transmission over long distances, there will not longer be sufficient reason to require or expect that much if any evidence will be presented in the form of personal testimony by witnesses in a room in which the judge, jury, and counsel are all present. A trial will be a movie, and trial counsel become co-producers of a multi-media presentation. Testimony will be recorded in advance of trial and reviewed by adversary counsel, much as documentary exhibits presently are. Because all the proof is unalterably recorded before any of it is presented to a trier of fact, every evidentiary issue can be resolved before trial. This will result in a clean visual recording of all the testimony and arguments of counsel to be presented, with no distractions from bickering among lawyers and judges. The possibility of surprise at trial will be completely eliminated. Appellate review prior to trial of the pretrial rulings would be the rule. The mistrial would be eliminated. So would those trials conducted for the purpose of delay. The jury trial would be the climactic event in which the citizen-jurors are given the final word. The interrogation of witnesses, under oath or otherwise, would be conducted by videoconference, at a time and place convenient to the witness, generally at the witness's home or workplace. The interrogator could be thousands of miles away, and could be conducted discontinuously. Thus, a defendant might efficiently elect to wait until he has been seen the plaintiff?s tentative presentation at trial before beginning to erect a defense by conducting cross-examinations that might be used in the defense's presentation. Because digitization makes retrieval so easy, parties could have full access to statements and recorded interviews conducted in earlier adjudication against adversaries presenting cases involving identical or closely similar issues of fact for the purpose of discovering possible evidence, especially including prior inconsistent statements, parties. All examinations of witnesses and examined documents would be filed with the court to digitized form. The problems of storage disappears because all the testimony given in all cases in the United States in a year can be stored in a single computer occupying very little space. A national index of testimony by any citizen in any court could be maintained so that material could be retrieved with modest effort by counsel. Counsel would be obligated during the pretrial process to participate in a continuing discourse with one another regarding the pretrial investigation of facts at issue. This duty would be performed digitally and recorded. This electronic conversation would replace formal notices and requests, interrogatories, answers to interrogatories, and case management conferences with the judge. Because the communications would be part of the record in the case, there would be meager opportunity to engage in off-the-record incivilities. A similar form of communication would generally replace the service of a summons as the means of initiating litigation. Every government or public agency, federal, state, or local, and every corporation engaged in commerce or owning property would be required to register its electronic address for the receipt of service of process. The virtual courthouse is equally accessible everywhere. Much of the law of territorial jurisdiction is obsolesced. This suggests the need for more tightly drafted venue requirements designating a place of trial for every kind of case, leaving the plaintiff little room for shopping.