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Commentary: Less is more trouble

Spencer Farris//August 11, 2023

Judges chair in court room image

Commentary: Less is more trouble

Spencer Farris//August 11, 2023

Spencer Farris

It is that most wonderful time of the year — CLE reporting period. Those who have their continuing legal education credits sit smugly by while those of us who are a few hours short grab around for whatever courses we can take at the last minute to satisfy requirements. Will I ever use the knowledge I gained in the Tax Implications of CryptoCurrency Arbitrage class I took? Probably not. I will also never use the $200 I spent on the course or get back the two hours of my life that I lost.

This year I found a course that I thought I should take. In case you missed it, as I did, the online court records system is being thrown open to the public. Because of that change, it will be necessary for lawyers to be more careful when loading documents into the system, to protect the privacy of litigants.

Presumably there was a nationwide survey of Americans and the ability to look at a neighbor’s court file beat out substance abuse, the rising costs of litigation, and crumbling courthouses as the biggest concerns for the Bar to fix. Lawyers are already answering angry client calls when they view their own online court records. What could possibly go wrong with letting the general public see ALL of the court records?

Back in the old days, meaning the beginning of my career, one had to actually go to a courthouse to look at a legal file. We would find a case number somehow, I don’t recall the precise conjuring spell, and write it on a scrap of paper provided by the court. The file clerk would go rummage around in the stacks and return with a blue folder full of yellow papers. Eventually.

Although the file rooms were open to the public, I don’t remember long lines or big crowds at the service counter. An occasional pro se plaintiff or defendant looking for some guidance perhaps, surrounded by interns and young associates. Other than that, the file rooms were a good place to catch a nap.

As courts have become more modern, those files have disappeared and the clerks with them. Discovery, depositions, and most of the other reasons a lawyer would want to see a file in the first place stopped being filed at court years ago. I can tell that someone may have given a deposition or answered interrogatories but I have no idea what the questions or answers were. And that is just the files in my office.

Now that case information is to be available to the general public from the comfort of a mall Starbucks, litigant privacy is a focus. A few decades ago, I could rummage through a file and find bank account information, social security numbers, property values and more. Now I have to carefully limit what I put in a pleading, lest I reveal the address of someone in the witness protection program.

I am sure the real issue is fear that computers with artificial intelligence will thumb through court records and harvest private data. That may not be the legitimate reason, but I am keen on blaming everything on artificial intelligence these days. Skynet is coming.

Fittingly, I logged into the course on redacting legal documents from the comfort of my couch. It would have been a good time for some artificial intelligence in my seat, as everything we got from the CLE course could have been boiled down to about fifteen minutes instead of an hour.

The best part was the question-and-answer portion. And by best, I mean the worst. The answer to most of the questions was “we don’t know yet, this is new.” Nothing is less comforting than warning me of a potential pitfall in my practice without telling me how bad it can get.

My general takeaway was to leave as much personal information and detail out of legal documents going forward.

My new form petition looks something like this:

Person A vs. Person B or Company C.

They know what they did.

Pay me.

Feel free to copy and paste that into your next lawsuit. On second thought, maybe don’t.

©2023 With All Due Respect. Spencer Farris is the founding partner of The S.E. Farris Law Firm in St. Louis, Missouri. All of the funny parts of this column have been redacted to satisfy court rules. Comments or criticisms about this column may be sent c/o this publication or directly to him via email at [email protected].

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