Recently I spoke at the National College of Probate Judges on judicial adoption and use of an electronic case record.  That evening, one of the judges confided that her major concern centered on the emotional and psychological attachment of family members and loved ones to the original, paper will of the decedent.  As I told her, I could not agree more.

To me, the real question was “Why is this subject even coming up?”  However, I have heard this concern at least three or four times now; so clearly there is a need to address it.

When I talk about “Paper-On-Demand courts” and Electronic Content Management (ECM), I always assume that everyone understands the distinction between a “document” and an “instrument”.  True, some instruments are in document form (a will, for instance).  But that does NOT mean that laws and rules that permit a document to be electronically rendered mean that an original, physical instrument can be re-rendered electronically and still have the same effect.

A very obvious example is cash.  (At least, I think that’s true; if not, my financial worries are over.)  Seriously, a hundred dollar bill is a document.  It is also, and more importantly, a negotiable instrument that has value AS AN OBJECT.  Copies of it, physical or electronic, do not have that same value.

The same thing applies to bonds, some stock certificates, and on and on.  Granted, laws and rules may someday permit electronic creation or electronic versions of such items.  (One big consideration is the need to make sure they are only used once.  I point out that this problem has been solved with tickets to events, as well as with cash cards, where the systems track usage.)  Still, that is way in the future.  For now, all those originals must be preserved.

Another example is original artwork.  A copy of a Picasso or a Matisse may be very good and fulfilling and enlightening to view, but I doubt there is much enthusiasm for destroying the originals.  And while we are at it, I think we probably should hold on to the originals of the Declaration of Independence and the Constitution.

The better model for court records is to regard wills, negotiable instruments and “documents” with their own intrinsic value not as “records”, but as evidence.  They should be regarded the same as other physical objects submitted to establish the fact of their existence (eg, weapons).  Exhibits, in other words.

That is not to say that, where possible, the instruments or objects should not be electronically rendered.  Wills, negotiable instruments, stock certificates,  even the Declaration of Independence, all contain information that has great value and use quite apart from the object value.  The point is, the original object must also be preserved.

Arizona’s Maricopa County follows that practice.  Original wills are maintained by the clerk the same as exhibits and are available on request.   Wills are also entered into the ECM system where they can be managed and made accessible with all the power and security of ECM.

The bottom line:  The need and desire to preserve wills (and other instruments and artifacts of intrinsic value) in no way constitutes a barrier to court implementation of ECM.  As in so many other instances, it does require careful thought and planning in the promulgation and implementation of rules, processes and procedures to meet all requirements.


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