Surviving eCourts  

We Must Adapt to Thrive, But We Don’t Have Go It Alone  

The reality of trial lawyers is that we practice in an “adversarial system.”  The word “adversarial” is defined as “involving or characterized by conflict or opposition.”  In law school, and in our formative years as trial lawyers we learn and understand that this phrase refers to the competitive pitting of one party against another. One party claims a violation of the law and the other party seeks to counter the assertion of a legal violation. We necessarily come to understand and accept the “zero sum” nature of legal conflicts- there will be a winner and a loser.  

With experience comes the recognition that in some situations it is necessary to compromise in order to limit potential losses or to mitigate a possible negative outcome. Such compromises are deemed necessary in order to prevent the catastrophe of a “zero sum” outcome. We have augmented our system to include structured mechanisms for achieving compromised outcomes- mediation, collaborative resolution, and even in some circumstances a process known as restorative justice. Each of these processes seeks to reach a resolution without resort to a “zero sum” determination of the case by a finder of fact. 

But experience in our justice system also yields a more somber understanding of the term “adversarial system.”  For many criminal defendants and civil plaintiffs, the system itself is adversarial to their interests. There is a decided litigation advantage vested with institutions such as the State and large corporations due to the significant power and influence they wield.  While policy makers or courts may choose to ignore the inequality of power and resources available to litigants, we are afforded no such luxury. It is a reality which permeates all aspects of our practices.  

As a civil plaintiff’s lawyer or a criminal defense lawyer we are left with a decision. We can decide that the challenges presented by the inequalities are too difficult to overcome and we can choose a different career path. Or, we can embrace these challenges and persevere nonetheless.  

If one is to persevere, is there a certain quality or mindset that is necessary for survival?  A likely reflexive response to this question is the sentiment that is often attributed to Charles Darwin – only the strong survive. But that is not what Darwin actually said. In fact, this sentiment is actually a misquote. Herbert Spencer initially coined the phrase “survival of the fittest” in response to reading the first edition of Darwin’s Origin of Species. Darwin later included the phrase in subsequent editions of his book. Professor Leon Megginson famously paraphrased Darwin’s ideas: “It is not the strongest or the most intelligent who survive but those who can best adapt to change.”  While others more succinctly articulated Darwin’s concept, the revelation of the value of adaptability originated with Darwin. Thus, in order to persevere and survive in our chosen field we are admonished to adapt.  

The North Carolina legal community is currently experiencing a major paradigm shift with the implementation of Odyssey and the eCourts project. As many of you know, the eCourts pilot project began in Wake, Harnett and Johnston Counties in the Spring of 2023. It subsequently went live in Mecklenberg County last fall. The North Carolina Administrative Office of the Courts plans to implement eCourts in Northeast North Carolina, North Central North Carolina and the Western North Carolina counties by the summer of 2024.  

At present, the implementation of eCourts seems to have impacted district criminal court criminal more significantly than other any other part of the court system.  As a high-volume court, speed and efficiency are at a premium. Our members report that many tasks take significantly longer to complete and thus the overall efficiency of the court is significantly reduced.  

Thus, eCourts presents a new challenge. To this new challenge, we are bound to adapt.  We will find solutions and adapt our practices to this new challenge because that is how we survive. But in this process we are not alone – in this process you are not alone. One of the great values of NCAJ is that it provides a community where we can share information, discuss ideas and work towards solutions.   

NCAJ leadership continues to monitor the situation with eCourts with an eye towards identifying ways in which this organization can provide support to its members.  

We are stronger through our NCAJ community. We are stronger together.