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Issue 19.1 JAN/FEB 2010


The state of Indiana trial court technology ten years

CONTENTS Bits & Bytes Revisiting the Vision: The state of Indiana trial court technology ......... 2 Indiana Supreme Court Gives Stamp of Approval to Lake County and Marion County Electronic Filing Plans ....................... 5 state of the judiciary Dealing with the Recession: A Court System That Won't Roll Over............ 6 SIDEBAR Hon. Robyn L. Moberly .................... 8 BRENDA'S BAILIWICK Cell Phones, Smart Phones, FLSA and the Court Employer......................... 10

BY Mary L. DEPrez | Director & counsel for trial court technology, state court administration

T

wo years into the deployment of Indiana’'s

uniform statewide Odyssey case management system (CMS), 51 courts in 19 counties are up and running, managing more than 22% of the state’s caseload. Now, more than 440,000 cases a year are being tracked electronically, stored in a central database, and made available to the public and other users of court data free of charge. Just over a decade ago, the Indiana Supreme Court created its Judicial Technology and Automation Committee (JTAC) to develop strategies for trial court technology in our state. The implementation of case management and court information sharing are principal among its goals, so having nearly one quarter of the state’s caseload managed by the Odyssey CMS is a major milestone in what has been—and what continues to be—a challenging and necessary endeavor for justice and public safety in Indiana. The goal of a uniform statewide CMS also makes sound fiscal policy given the long-term savings that result from centralization and uniformity. Centralization frees up local budgets from supporting software licensing, maintenance, and training costs, easing the burden on local property taxes. In addition, while the local courts need desktop computers and Internet access to use the system, they avoid the significant data center costs of localized systems; and if a county needs additional network capacity to run Odyssey, those costs are also absorbed by JTAC. Judges and Clerks using Odyssey have noted significant advantages and they are better able to manage court cases and related financial information. This is especially evident in courts like the Marion County Traffic Court, where many infractions are processed through JTAC’s electronic Citation and Warning System (eCWS) into Odyssey, and managed electronically from the moment they are written to their disposition. Document imaging and e-filing (for other case types) are two features possible with Odyssey that JTAC has yet to offer. Both concepts are important to many courts around the state, however JTAC is committed to first ensuring the installation of Odyssey in the counties that need it before turning attention to enhanced services like e-filing and imaging.

How we got here

Cover illustration. Anatoly Stojko. Cover design. Lindsey Borschel.

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After several years of preliminary work, research, requirements gathering, and a false start with a vendor that ultimately couldn’t meet the needs of our courts, JTAC engaged Tyler Technologies, Inc., in mid-2007 to provide Indiana’s case management system. This choice was the result of a thorough and transparent competitive procurement process that involved more than 150 stakeholders from state and local government. Tyler had implemented its Odyssey system in Minnesota and other court systems, and representatives of those courts were interviewed as part of the competitive procurement. The contract was signed in summer 2007, and before the end of the year, the system was piloted in the eight circuit courts of Monroe County and a small claims court in Marion County.

A listing of Odyssey project costs and assigned funding sources


after JTAC'’s founding— and a reminder about how we got here in the first place During 2009, questions like the following have been asked about the Odyssey CMS: “Why is Indiana implementing a statewide system?”; “Why not just create standards and let the counties choose?”; and “Won’t there be a tipping point when deployment costs exceed the appropriated revenue?” These are all valid questions, and they were answered by the Indiana Supreme Court prior to the formation of the Judicial Technology and Automation Committee. Back in the 1990s, the Supreme Court embarked on a project called AIMS, an effort to develop standards for individual county courts to use when acquiring case management systems. At the conclusion of this effort, which was financed by generous grants from the Indiana Criminal Justice Institute, the Court concluded the standards approach was not in the best interest of the state for several reasons:

1

As a practical matter, technology never stands still long enough for standards to be useful. No sooner is a standard promulgated than some technological advancement renders it obsolete or at least in need of revision.

2 The cost of acquiring a standards-compliant system would rest on local property taxpayers at a time of growing pressure on the property tax system to meet other local needs. This would leave counties with lower revenues unable to automate their case management.

3 Costs and staffing associated with localized hardware, software updates, and technical support would be duplicated from county to county.

Numbers of users served by JTAC software. POR: Protection Order Registry; ECWS: Electronic Citation and Warning System; BMV: Electronic SR-16 Filing; Odyssey: Statewide Case Management System; ICOR: Indiana Courts Online Reports.

Odyssey is exceeding expectations At this stage of deployment, it is clear that a uniform system will have a positive impact on our courts.

4 Standards alone provide no guarantee that the locally run

Person-based system. With Odyssey, the basic unit for each record is not the case, but the individual. Users can easily see whether an individual has an outstanding warrant or relevant pending or decided cases in other counties.

5 Having a substantial number of different case management

Consistent financial tracking. A uniform system means the financial transactions entrusted to Indiana clerks are accounted for uniformly from county to county and in accordance with Indiana statutes and State Board of Accounts regulations.

systems would be operated in accordance with applicable statutes, State Board of Accounts regulations, or Court rules.

systems (even today 23 different systems operate in Indiana) would make extremely difficult the exchange of court data with law enforcement, state agencies, and other users of case information. In some circumstances, it would make impossible the exchange of court data from one county to another.

In the wake of the abandonment of the standards effort, the Court established JTAC in 1999. In 2001, with the support of judges, clerks, and the executive and legislative branches, the Court began its first procurement process for a statewide system, which resulted in a contract in 2002. The vendor chosen for that contract was the only one of more than 30 applicants to propose the use of a uniform CMS that would connect local users to a central data center over broadband. (The relationship with this vendor was terminated in 2005; the vendor repaid all amounts paid to it by JTAC and paid an additional amount to be released from the contract.) By 2006, when JTAC embarked on its second procurement for a CMS vendor, all of the national vendors that applied for our contract had adopted the same approach, which validated our vision for a uniform statewide system.

Uniform case processing. Like clerk financials, the processing of cases is standardized from court to court to the extent required by state laws and Supreme Court rules, assuring similarly situated litigants are treated the same throughout the state. Return on investment. With Odyssey, a statewide license for an unlimited number of users was paid for, up front, one time. Costs for the data center, maintenance, and support are essentially fixed, regardless of how many counties use the system. The marginal costs that do increase as counties join the system are related to network access and helpdesk staffing, but overall, those costs are small. This means that the system won’t get more expensive as it spreads throughout the state. In fact, it’s just the opposite—the marginal cost of adding courts to Odyssey are substantially less than the savings those courts realize in terminating their existing licensing, maintenance, support, data center, and other financial obligations.

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can be found at http://courts.in.gov/jtac/docs/cms/phase2-costs.pdf.

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The Odyssey CMS is JTAC’'s biggest project, but it’'s not JTAC’'s only project The need for a statewide CMS is not just illustrated by the five reasons set forth above; it’s also illustrated by the successes of the Odyssey project to date and the other centralized technology projects JTAC has implemented over the past five years. Of JTAC’s projects, Odyssey is by far the Court’s biggest and most ambitious undertaking, but it is only a part of a comprehensive effort to improve trial court technology in Indiana. To see how far we’ve come, reflect on the fact that when JTAC was established in 1999, only 30% of Indiana judges had access to the Internet and email in their courts. In the early years, JTAC helped courts get Internet and email access, LexisNexis access, computer equipment, and desktop training. Later, an award-winning jury pool project made available comprehensive jury lists for every county across the state. Additional projects have been carried out in response to changing legislation creating a need for a statewide technology solution. And as a uniform statewide CMS began materializing, other projects have been developed that are interdependent with the concept of a uniform statewide CMS. All of the projects undertaken by JTAC have been consistent with the committee’s three stated goals:

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Equipping every Indiana trial court with a 21st century CMS;

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Connecting individual courts’ case management systems with each other and with law enforcement, state agencies, and other users of court information, including the public; and

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Providing Indiana judges and court clerks and their staffs with additional computer resources to assist them in their work and better serve the public.

Many of the projects connecting courts with law enforcement and state agencies—such as the electronic Citation and Warning (e-ticket) System, the Protection Order Registry, and the Statewide Jury Pool—were funded primarily by federal grant dollars. Over $2,000,000 of those grant dollars were in turn delivered to counties for local technology needs, including equipment and software licensing.

Numbers of users served by JTAC software. POR-A: Protection Order Registry Advocates Access; ML: Marriage License E-File; TAX: E-Tax Warrants; JURY: Statewide Jury Pool and Jury Management; DCS: Juvenile Services Filing.

Demand for immediate Odyssey installations exceeds our deployment resources—for now Odyssey has been installed in 51 courts in the 26 months since the initial pilot installations in December, 2007. This record is all the more impressive when the rigorous quality controls demanded by the Court are considered—quality as to converting data from old case management systems, to standardizing business practices to comply with state law and regulations, and to configuring Odyssey to conform to local practices. We are busy working on additional deployments in courts in Anderson, Fort Wayne, Indianapolis, Jeffersonville, and other places. We have a long waiting list of courts and clerks that would also like to have Odyssey installed. But with only so many men and women on our deployment teams, we are unable to fulfill these requests as rapidly as we would like. We have explored with the General Assembly temporarily increasing the court filing fee that supports JTAC’s work from $7.00 to $10.00 so as to increase the pace of Odyssey deployments. This proposal has received some support—the Indiana House of Representatives and the Senate Judiciary Committee both passed it in 2009—but it has not become law. We will install Odyssey as rapidly as our resources allow, consistent with the quality demanded by our Supreme Court.

Visit courts.IN.gov/video/hamilton to watch a video case study of Hamilton County's Odyssey deployment experience. 4 JAN/FEB 2010

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By JAMES MAGUIRE | STAFF ATTORNEY, STATE COURT ADMINISTRATION AND JAMES WALKER | DIRECTOR OF TRIAL COURT MANAGEMENT, STATE COURT ADMINISTRATION

Indiana Supreme Court

Gives Stamp of Approval to Lake County and Marion County Electronic Filing Plans Courts process, file, access and eventually, store paper, lots of it. It is cumbersome, time-consuming, laborintensive, and expensive to make paper products, to copy documents, to mail pleadings and notices, to maintain open files, and to store closed files. Lawyers, judges, and clerks, have all wondered: will this avalanche of paper ever end? The answer is a resounding YES! Thanks to advances in electronic technology, and a forward-looking Supreme Court, there is a framework in place in Indiana to move away from paper filings. It is set forth in Administrative Rule 16, which authorizes courts to establish an electronic filing or an electronic service pilot project. We are at the beginning stages in our Indiana trial courts, and we are cautiously and prudently moving forward. Many successful business have used a “crawl, walk, run” philosophy when implementing new marketing, sales and production plans. Our courts are employing this winning strategy in transitioning from a paper filing system of handling pleadings and documents to an electronic filing system. This past December the Indiana Supreme Court approved separate requests by the Lake County and the Marion County courts to implement an electronic filing system on a limited and trial basis. Lake and Marion are the first counties to implement an electronic filing system under Administrative Rule 16. Each county intends in 2010 to accept pleadings and court documents, and to send notices, by electronic means. Lake County is sched-

uled to begin their pilot project in February. They will limit electronic filing to only mortgage foreclosure cases. Mortgage foreclosure filings are randomly assigned to each court in Lake County, so the plan will be effective in all courtrooms. Marion County will allow for electronic filing in both mortgage foreclosure cases and civil collection cases. Thirteen courtrooms will allow electronic filings: Marion Circuit Court and Marion Superior Court, Civil Divisions One through Seven, and Ten through Fourteen.

Many court observers predict that all courts will one day use Electronic-Filing and Electronic-Service. In each county, all registered users of the electronic filing system will be able to remotely access documents in mortgage foreclosure cases. But, in Marion County, only the registered users who are actual parties to a collection case will be able to remotely access court documents. Registered users include attorneys, members of the news media, commercial users (such as title companies, banks, and mortgage companies), judges and their staff, court administrative staff and technical support staff, and self-represented litigants, who enter into a User Agreement with the court.

Lake County will utilize a self-contained system to file and serve documents in the court’s case management system, CourtView, through their Lake County Online Docket (LCOD). Marion County will utilize the services of the Lexis-Nexis File & Serve System (LNFS), an outside vendor. In both counties registered users must sign an agreement and pay fees to utilize the electronic filing and service system. Each county plan protects confidential information and sealed documents as required by Administrative Rule 9. Both plans also provide assistance to self-represented litigants who choose to utilize the electronic filing system. There are optout provisions for parties who want to use traditional paper filings and service. The Lake County judges, under the leadership of Circuit Court Judge Lorenzo Arredondo, Superior Court Judge Jeffery J. Dywan and Superior Court Judge John R. Pera, presented their original electronic filing plan in June 2007. They requested a delay in the review of their plan due to an unfortunate flooding situation within their judicial buildings that directly affected the courts’ computers. In May 2009, they amended their original proposal and resubmitted it asking for Supreme Court approval. Marion County judges, under the leadership of Circuit Court Judge Louis F. Rosenberg, Superior Court Judge Heather A. Welch, and Superior Court Judge Thomas J. Carroll, first submitted their CONTINUED ON PAGE 9

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Dealing with the Recession

Like many, I have lived through economic downturns, but none so serious as today’s and none so challenging for government servants. Just as demands on our service peak, finances restrain our capacity to respond.

A Court System That Won’t On Jan. 20, 2010, Chief Justice Randall T. Shepard delivered his 23rd State of the Judiciary address to a Joint Session of the Indiana General Assembly. An excerpted version follows.

This gloomy reality is also felt by the third branch. Our new filings are at record numbers - a tangible marker of a society under stress: more businesses short on cash flow suing people who cannot pay, more divorces, more abused children. If it’s bad and you can put a name on it, it shows up in our courtrooms.

For the first-time, the State of the Judiciary was broadcast to a statewide audience. Indiana Public Broadcasting Stations produced a half-hour special devoted to the State of the Judiciary. It aired on eight Indiana Public Broadcasting television stations the week of January 24th: WTIU-TV Bloomington, WNIT-TV Elkhart/South Bend, WNIN-TV Evansville, WFYI-TV Indianapolis, WYIN-TV Merrillville, WIPB-TV Muncie, WFWA-TV Fort Wayne and WVUT-TV Vincennes. The address was also carried live on four Indiana Public Broadcasting radio stations including, WNIN-FM Evansville, WFYI-FM Indianapolis, WBST-FM Muncie and WVUB-FM Vincennes.

Still, what strikes me about our court system is our colleagues’ ingenuity and energy at lifting up the legal system. Even as our trial judges plan our future, judges and lawyers and court staff have summoned the energy, the focus, the tough-mindedness to ramp up the system even in the midst of crisis.

Roll Over

We are nearly overwhelmed by mortgage foreclosures. Last year, we joined the mortgage foreclosure prevention effort led by Lieutenant Governor Skillman. I promised we would train more judges, lawyers and mediators, anywhere in the country in law and economics and the mechanics of modern foreclosure to better assist people in need.

Video of the speech and the full text of the 2010 address are available online. Visit courts.in.gov/supreme/state_jud.html for all addresses since 1988.

Photo. Lindsey Borschel.

With leadership from Judge Melissa May, and the State Bar, ICLEF, local judges, pro bono committees, and law schools, we exceeded our goal and trained 1,112 people.

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What difference does that make? While in Hendricks County to thank lawyers who have volunteered to help families in need, a young lawyer named Traci Twait said she had volunteered to represent two families in foreclosure. “We haven’t reached a settlement in either case, but they’re still talking and so far nobody’s been thrown out,” she said. A few weeks later she told me they succeeded in rewriting the loan in one case and were still talking in the other. That’s progress. Our next objective will be to energize the settlement sessions required by the 2009 legislation before a foreclosure can be car-


ried out. We will begin placing facilitators in three counties this winter using a temporary fee on mortgage foreclosure filings. A recession puts other kinds of pressure on families. Last year divorces surged. We are also encountering more children who are neglected or abused. The good news is the number of new volunteers trained as court-appointed special advocates in 2009 was up 26% over 2008, and 2008 was up 51% over 2007. Speaking of protecting the vulnerable, a recession generates more domestic violence. Last year, the Supreme Court’s Judicial Technology and Automation Committee (JTAC) was energetically installing the electronic protective order registry so that law enforcement agencies would be notified immediately when an order of protection was filed. Today all 92 counties use this tool for protecting vulnerable women and children. The work we do with law enforcement agencies has also improved through technology. The electronic citation system developed by JTAC, called eCWS, is used by 5,000 law enforcement officers who have issued 1.7 million citations. Officers and drivers are safer because they spend less time by a busy highway; officers spend more time on patrol. The new twenty-first century case management system that links all this together, a private enterprise product called Odyssey, is likewise being deployed. It’s now in some 50 courts in 18 counties. Since September we began using it in Hamilton, Huntington, Blackford, and Madison counties. Allen County will be online later this year. At any given moment more counties ask for installation than our teams can reach. Among the weaknesses in Indiana’s criminal justice system has been that we mostly use very dated assessment tools to estimate the relative risk of offenders. Advances make it possible to assess the risk involved with criminal offenders with far more precision. After several years’ work the Indiana Judicial Conference adopted a new statewide tool for assessing juvenile

offenders. We did most of this without any general fund money and because we are using public software, most counties will save the money they now spend on less effective assessment tools. This is one of many initiatives we’ve pursued notwithstanding the recession. Another one is to assure that we have fair and representative juries. We have created a jury list that combines data from the BMV, the Department of Revenue and the Postal Service. It’s the most accurate annual list of who’s living in each county ever created. A representative who presented a national award to us for this project said simply, “Indiana sets the standard.” This makes for a genuine jury of your peers, but it also means less time and postage wasted on sending jury notices to people who have died or moved.

State of the Judiciary To make sure juries do their business better once they’re in the courtroom, we have developed a project called “Plain English” jury instructions. It involves a new set of instructions, legally accurate, but written with the help of English teachers so jurors can more easily comprehend them as opposed to the nearly impenetrable instructions of the past. And as for understanding law, we used the 200th anniversary of the birth of Abraham Lincoln to partner with the State Bar to send lawyers and judges to classrooms to talk about Lincoln the lawyer and the benefits of the rule of law. It succeeded well beyond our expectations and won three awards after about 500 lawyers and judges gave talks to 33,000 students. Another program designed to give promising students a boost reached a real milestone. The Indiana Conference on Legal Education Opportunity works to help minority and other disadvantaged students become lawyers. In October,

Governor Daniels appointed a member of the inaugural CLEO class, Rudolph Pyle III, as Judge of the Madison Circuit Court. He’s the first CLEO graduate to become a judge in a court of record. The first CLEO judge in any court was Eduardo Fontanez, in the East Chicago City Court. I want you to know that the judiciary will do its part to aid in the budget crisis. For example, we’ve stopped doing something we’ve done for 193 years. Instead of mailing our decisions to lawyers, we will now send them by e-mail, saving $39,000 this year alone. We decided to postpone regional meetings we’ve conducted with trial judges every spring for at least two generations, saving about $16,000. We have held open senior staff positions at a savings of $227,000 in State Court Administration. These numbers are modest by comparison to the state budget but the whole court system is a very small part of the budget. I suggest three topics that might be the subject of legislation and collaboration between the branches. First, we should be doing everything we can to collect all the revenue the law says is due as the result of court operations. In some cases we leave money on the table that ought to go toward state and county budgets. Capturing all this revenue is partly a matter of changing practices and partly a matter of legislative authorization. Second, the recession produced record filings in 2008 and 2009, right at the two million mark. Record caseloads means that our ability to give people a hearing has become terribly squeezed. In today’s climate we cannot ask for more judges. We already use Senior Judges who work part-time. I hope you would let us use retired magistrates as well to meet these caseloads. CONTINUED ON PAGE 11

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sidebar

By JAMES F. MAGUIRE | STAFF ATTORNEY, STATE COURT ADMINISTRATION

Hon. Robyn L. Moberly Judicial Balance. Judge Moberly was introduced to yoga through a Judicial Center class.

This is the seventh of our Court Times

articles

that

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close and personal a member of the Indiana Judiciary. Marion County Superior Court Judge Robyn L. Moberly is our judge featured in this issue. Judge Moberly was first elected as Superior Court Judge in 1996, and re-elected in 2002 and 2008. She graduated from Indiana University in 1975, and received her Doctor of Jurisprudence from Indiana UniversityIndianapolis in 1978. She is a Member of the Judicial Education Committee, and a Member of the Board of Managers, Indiana Judges Association, serving as its Secretary-Treasurer from 2007-2009, and currently serves as its Vice President through 2011.

What do you like most, and least, about being a trial court judge? I love the jury trials. I can feel the excitement and energy in the courtroom when I first take the bench. Everyone in the courtroom knows that they are a part of something important. The aspect of my job I like the least is the stacks and stacks of paperwork. The minute you think you have it done, there’s more to do.

What was your major at Indiana University and why did you decide to study law? I majored in Economics at IU. I love learning and I wanted an advanced degree, so I applied to law school. Law

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fascinated me since it’s a reflection of the expectations and interactions of individuals, businesses and institutions. I can’t imagine anything else that could be as interesting.

aren’t just giving away their money; they are devoting their lives to their belief that every human life has equal value. Their efforts have truly made a difference in the world.

What would you do if you were not a judge?

What are your hobbies or favorite leisure activities?

I’d love to be a florist. A friend’s daughter owns a wonderful floral shop in Indy and I frequently go there to pick up flowers and watch her arrange floral designs.

I love to do yoga. Anne Jordan at the Indiana Judicial Center introduced me to yoga a few years ago and now I’m hooked on it.

Who are the people you most admire? I admire Bill and Melinda Gates, among many others. In my mind, they really walk the talk. They have taken their immense fortune and they are using it to make a difference in the world. They

What are your favorite books and have you read any recently, or are reading now, that you would recommend? My favorite book is Pillars of the Earth by Ken Follett. I recently finished American Lion: Andrew Jackson in the White House by


Jon Meacham. The political intrigue was interesting to read about, largely because it reminds us the more things change, the more they stay the same. I just finished reading The Girl with the Dragon Tattoo by Lars Steigman on my new Kindle. I’d recommend the book, and the Kindle!

Where did you grow up and how would you describe your childhood? I grew up in San Francisco, Washington DC and Indianapolis. My father was an agent with the Central Intelligence Agency which caused us to relocate regularly. His job brought us into contact with some fascinating people. A small part of his job was to relocate defectors and on occasion he invited them to dinner at my parents’ house. I remember one defector’s story of escape from behind the Iron Curtain that still inspires me.

Do you have a favorite quote(s)? “Well done is better than well said.” —Benjamin Franklin

Where is your favorite vacation spot? Blackberry Farm. It’s a small place in Tennessee with wonderful scenery, friendly people, and terrific organic food.

What is your favorite meal/ recipe/restaurant? My favorite food is artichokes with hollandaise sauce, which is a dish very popular in California, where I lived as a child. One of my favorite restaurants is a little neighborhood place here in Indianapolis, Marco’s, where my husband and I frequently go for a Friday night date. We always see people we know there and it’s a very relaxed atmosphere. For a special occasion, I love to go to Oakley’s Bistro, which is also in our fair city.

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electronic filing plan in June 2009. They amended their plan after consultations with State Court Administration staff and Supreme Court approval was granted. The Indianapolis Bar Association submitted to the Indiana Supreme Court a letter of enthusiastic support for the E-Filing pilot project. Marion County judges are finalizing their local court rules to implement the electronic filing system and are putting the final touches on the details of the plan. The necessary elements of a Proposed Plan to Implement Electronic Filing or an Electronic Service Pilot Project are set forth in the Appendix to Administrative Rule 16. Several elements should be emphasized. Each proposal should identify the hardware and software needed for both the court and the registered users. Courts should limit and specify which case types will be eligible for electronic filing. Courts should consider the anticipated users, and the potential for use by pro se litigants, and plan accordingly. And, courts should set parameters and safeguards for management of the project. Each proposed project must specify how original documents will be maintained and archived. The security of the electronic system is of critical importance, both for the integrity of the project and the court record. Courts should carefully consider the method for distributing user identification names and passwords, including provisions for pro se litigants. Because the use of a password is the equivalent of a signature, security measures must be in place to protect the registration process. All registered users must sign agreements acknowledging the sensitivity of the passwords. Electronic-Service proposals must meet the proof of service requirements under Trial Rule 5. Proposals must address compliance with Administrative Rule 9, including how documents

will be sealed and content redacted. There must be an option to opt out of electronic filing and utilize traditional paper filing and service. The court must also set out the local rules under Trial Rule 81 that will govern the pilot project. The rules must address all the required components of the system that affect the users, including identification of case types, eligibility of users, security, and service compliance. The local court rules must include any forms needed to participate in the system. Many court observers predict that all courts will one day use ElectronicFiling and Electronic-Service. A few jurisdictions have already implemented a statewide system, including: Colorado, Delaware, and Minnesota. For several years most of the federal courts have been linked to PACER (Public Access to Court Electronic Records). It is a system maintained by the Administrative Office of the United States Courts, with a separate URL for each Court. It includes federal district, appellate and bankruptcy courts. Their website can be found at pacer.psc.uscourts.gov. Technology presents our Indiana courts with some exciting opportunities. We hope that many courts take advantage of the opportunity to begin a pilot project. We are ready, willing and eager to assist our courts in setting up a project that meets the requirements of Administrative Rule 16. While we know that one size does not fit all counties, we are developing a model for other counties that want to establish an electronicfiling plan. We will work to serve the individual needs of our courts on a county-by-county basis. We are here to serve your needs and help you develop a workable system that fits the needs of your county. Please contact either of us for assistance at: 317-252-2542 or by email: jwalker@courts.state.in.us or jmaguire@courts.state.in.us.

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BRENDA' S BAILI W ICK

Cell Phones, Smart Phones, FLSA and the Court Employer A Look at One Potential Hidden Cost of Technology By brenda rodeheffer | director of OFFICE AND employment law services, state court administration

C

ell phones have changed

our daily lives in many ways. No more concerns about not being able to get a message to family members when you will be late. No more exorbitant add-ons to hotel bills because you have to make a long distance call. No more wondering what the cost of a widget is if you have a smart phone. Cell phones have also impacted the work environment. It almost goes without saying that courts must compensate employees for ALL hours worked according to the Fair Labor Standards Act (FLSA), except for those employees exempt from the FLSA. Almost all court employees are nonexempt, including bailiffs, court reporters, and probation officers. Exempt employees are attorneys, full time managers, and other limited categories. Employers have a legal obligation under FLSA to know when employees are working so the employees are properly paid. It is a duty the employer cannot shift to the employee. This provision of the law has not kept pace with our changing world. With the widespread use of smart phones and cell phones, employees are increasingly “on call” for work all day, every day, with or without the employer’s permission. What obligation does a Court employer have if a Judge sends out an informational after-hours email to a bailiff regarding the following day’s docket and the bailiff responds with a personal cell phone? What obligation does a Court employer have if a probation officer is in a car crash while checking messages on a smart phone provided by the county? This article will provide some guidelines for our courts; but this area of the law is in flux and case law has not yet answered these questions. 10 JAN/FEB 2010

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Courts must compensate nonexempt employees for all time worked. Courts generally do not have to compensate an exempt employee who might answer an email or text message after regular work hours. Here are some factors a court should consider to determine if a nonexempt employee’s use of technology after regular court hours should be compensated: • court liability is the same whether the smart phone is provided by the employer or obtained by the employee independently; • it doesn’t matter whether the employer asks the employee to respond after-hours or whether the employee does so voluntarily or even contrary to instructions; and, • FLSA does not require compensation for de minimis extra work. There were several federal lawsuits filed in 2009 in which employees have contended their employer violated the FLSA by failing to pay for off-duty emailing and texting. None of these cases has yet resulted in a clear decision as to when such off-duty email and texting is compensable. On legal websites geared to answering employees’ questions about workplace rights, there are frequently questions by employees as to whether they have a right to compensation for answering calls and email after regular work hours. An employer may be blissfully unaware that the employees expect compensation until a lawsuit is filed two years after the employee has left court employment. To protect the court and the county against lawsuits, court employers should have a written policy concerning employee

compensation for after hours’ use of cell phones, smart phones, and the internet. The policy should require nonexempt employees to regularly report all hours worked. If a court becomes aware an employee is working after hours, the court should send a written reminder of court policy and take appropriate action, if the extra work is more than de minimis. Several federal cases in 2009 held work that takes no more than ten minutes is de minimis and an employer was not required to compensate employees for de minimis work. Therefore, if a judge emails the bailiff at night and asks the bailiff to prepare for a large morning conference, and the bailiff responds “I will,” there is no compensation problem. On the other hand, compensation should be given if an employer demands an employee be ready to respond when off duty, if a particular exchange of communications is extended for more than de minimis time, or if work-related communications occur on a regular basis after working hours. An employer can reduce risk by issuing smart phones only to exempt employees; by having and enforcing written policies which prohibit nonexempt employees from using smart phones or the internet for work use after hours; and having written policies for employee compensation for use of electronic communications outside of the regular workday. A court may want to pay additional compensation to some nonexempt employees in order to have access to those employees at all appropriate times. An example might be probation officers who need to receive and respond to emergency information. It is entirely appropriate to give smart phone equipment to such employees and to develop a policy to give adequate compensation for after-hours work.


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Photo. Edyta Pawlowska.

An employer who provides a cell phone or smart phone to an employee should establish a policy regarding use of the cell phone while driving. Studies have proven there is an increased risk of accidents when a driver uses a cell phone. This use rises to the level of grave danger when a driver is texting. There are no Indiana cases which address the issue of employer liability for an employee’s use of a cell phone while driving. Some jurisdictions have held an employer may be liable is an accident occurred while an employee discussed business on a cell phone. Each employer will have different comfort levels as to how restrictive the policies should be. Some potential options include: • Prohibit the use of a phone in the car; • Allow only hands-free use of a phone; • Require an employee to stop the car before using a phone; • Caution an employee against the use of a cell phone in dangerous conditions, such as in heavy traffic or bad weather;

• Have a policy that an employee is acting outside the scope of employment while using a phone while driving; and, • Requiring an employee to reimburse the employer if the employer is found liable for the employee’s use of the cell phone. It is important for a court to consider all options in deciding on office policy for cell phone use. The author has developed a template for a cell phone policy which is available to any court or probation office upon request. But keep in mind, a policy only has value when it is reinforced by the actions of the employer. Personally, I love being able to respond instantly to email requests from my employer and the courts. I like clearing my email box of junk or unnecessary emails before I even arrive at the office, and having a smart phone definitely increases my productivity. Cell phones and smart phones will not go away. The use of smart phones is only going to increase until the next leap in communication devices. If you haven’t done so yet, now is the time to adopt a policy regarding cell phone use.

If you need assistance with drafting or reviewing a policy, or have any other concerns related to cell phones or smart phones, call your friendly legal advisor on employment law at (317) 234-3936 or email her at brodehef@courts.state.in.us.

Third, among the most effective strategies we have available are drug courts and re-entry courts, and the General Assembly has enacted laws to help courts make these techniques work. After eight years of war we find people in court with special disabilities and needs that flow from the pressure of their military service. I ask you to give us a framework to establish veterans’ courts, and other problem-solving court programs as the need arises. The Commission on Courts has endorsed this idea. None of these ideas cost much and may even bring in new revenue. Finally, I’d like to describe the extraordinary experience I had recently at Emmerich Manual High School. The Indianapolis Star’s stories about this challenged inner city school has generated an enormous response. The Star wrote, “If you want to show you care about these kids, come to the choir and band Christmas performance next Tuesday at 6:30.” As my family turned the corner on Madison Avenue you could see headlights all the way up the hill to the next stoplight, cars lined up hoping to get into a parking lot long before filled to capacity. The two teachers who played key roles in making that miracle happen were center stage, though obviously not alone. But they’ve dedicated their careers to helping young men and women learn music, yes, but also to giving those students the self-confidence to face the world, to stay in school, and build better lives. That thousands of citizens came to cheer them on was simply thrilling. I can tell you that there are plenty in our court system who, like those persistent and unshakable music teachers, even in this dark hour, are unwilling to roll over and play dead. They’ve decided to stand their ground, “to spend and be spent” in the cause of building and rebuilding a place worthy of the fine name Indiana.

courttimes

JAN/FEB 2010 11


Indiana Supreme Court Division of State Court Administration 30 South Meridian Street, Suite 500 Indianapolis, IN 46204

EDITORIAL BOARD Lilia G. Judson, Publisher Executive Director, State Court Admin. David J. Remondini, Managing Editor Chief Deputy Executive Director, State Court Admin. James F. Maguire, Editor Staff Attorney, State Court Admin. Lindsey Borschel, Publication Designer Web Coordinator, State Court Admin./JTAC

MISSION Our goal is to foster communications, respond to concerns, and contribute to the spirit and pride that encompasses the work of all members of the judiciary around the state. We welcome your comments, suggestions and news. If you have an article, advertisements, announcement, or particular issue you would like to see in our publication, please contact us by mail or email at jmaguire@courts.state.in.us.

CONTRIBUTORS Hon. Randall T. Shepard Chief Justice, Indiana Supreme Court Mary L. DePrez Director & Counsel for Trial Court Technology, State Court Administration James Walker Director of Trial Court Management State Court Administration James F. Maguire Staff Attorney, State Court Administration Brenda Rodeheffer Employment Law Services, State Court Administration

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Indiana Court Times 19.1