"When two people fight, the third one takes the prize" is a well-known saying. In the case of electronic legal transactions (ERV), however, it should rather be "the third party helps". What is meant is the fact that manufacturers of industry software solutions have a wealth of experience that could point the way forward in the discussion about digitization of the justice sector.
Because one thing is clear: The need for action is great. A recent study by the Boston Consulting Group (BCG) attests that Germany has a lot of catching up to do when it comes to digitization.
"Digitization of the judiciary is lagging behind the leading countries, while court overload, cost pressure and the upcoming wave of retirements - over 25 percent of all judges will retire by 2030 - are increasing the pressure to modernize and digitize the courts."
Only 43 percent of law firms digitized
Currently, 47 percent of law firms and 53 percent of insolvency administrators have already digitized the majority of their processes. This contrasts with the judicial authorities, which are not obliged to maintain an electronic file and thus to actively participate in electronic legal transactions until January 1, 2026. The resulting discrepancy in the degree of digitization maturity is increasingly turning out to be a show stopper for fruitful cooperation.
Federalism as a brake on innovation in digitization
In this context, it is not only the difference in the degree of maturity of digitization that proves to be a challenge, but above all the fact that in the federally organized Germany, the judiciary is subject to the sovereignty of the federal states. This means that the federal legislature can only define the framework conditions of the ERV - ultimately, the individual federal states must decide and implement digitization. These are also quite willing to meet the deadlines for the introduction of ERV - however, the ways to achieve this are quite different. The result is a digital patchwork. This not only leads to lawyers and law firms being overworked and stressed because the requirements on the part of the courts vary from state to state. Rather, the judiciary is also far too busy with itself and focused on its own requirements to be able to benefit from the experience already gained on the part of law firms.
Standardized structured data necessary for data exchange
But regardless of the fact that federalism and a lack of openness are slowing down digitization progress, other opportunities are also being missed. A good example of how considerations on the part of the judiciary are often not thought through to the end is how the requirements for naming conventions for files and documents are handled. Here, the original goal was to reduce the complexity of naming conventions. This would be relatively easy to do by exploiting the technical possibilities offered by the use of structure data sets. Since a structure data record can be used more or less like the package insert of a file by filling in the predefined data fields - for example, court designation, file number, type of proceedings, register, etc. - all important information could be exchanged between law firms and courts via the structure data records.
Why go simple when you can go complicated
However, a different approach has been chosen. Instead of using the plausibility of the structural data sets, it has been determined which names files and documents must have when they are submitted to the court by the law firms, for example the insolvency table or the grounds of appeal. And these specifications are then again state- or court-specific. This results in procedures and processes that defy all reason. As a result, a lawyer or insolvency administrator who works in several federal states ultimately has to check individually for each court whether the files are correctly designated. This not only increases frustration, but also the workload within law firms - another factor that should not be neglected in times of acute staff shortages.
First steps in the right direction: beA & Co.
But there is still hope - or, to put it another way, potential for improvement - in dealing with naming conventions. Since the federal states are still unable to agree on a uniform standard for file names, the software industry is stepping in with creative proposals for solutions. To facilitate digital communication between the legal profession and the judiciary, for example, the STP's software will offer the option from December 2022 to preset for each court which file and document names are to be used when sending electronic messages to the court. This saves the insolvency administrator from having to check the individual court requirements before each dispatch and thus saves valuable time.
EGVP and beA enable legally secure communication
The electronic court and administrative mailbox (EGVP) introduced for the judiciary and its counterpart, the special electronic attorney mailbox (beA), also contribute to facilitation. Both have been established to enable legally secure, digital communication. Although the prerequisites have been created, this alone is not enough. More than 50 percent of attorneys work with law firm software and expect integrated communication with the beA system here. For this reason, a law firm software interface was created shortly after the launch of the beA web portal (KSW interface). Problematic here: In the past, the German Federal Bar (BRAK) has primarily focused on the further development of the BRAK's own beA web portal - less on the KSW interface. As a result, not all of the innovations and convenience features of the beA web portal have been incorporated into the KSW interface either, leading to increased tensions between law firm software vendors and the BRAK.
No wonder, since communication via an interface to beA is a mandatory requirement for the vast majority of law firms in their daily work. The Software-Industrie-Verband elektronischer Rechtsverkehr (SIVERV), in which most manufacturers of law firm software are organized, therefore sees itself as the mouthpiece of the manufacturers and their customers vis-à-vis the judiciary and the BRAK. Although there is a regular exchange between the parties, it would be desirable for the BRAK to make use of the wealth of experience of the software industry and law firms in order to learn from the tried and tested workflows and to benefit from the findings.
Pulling together
There are currently encouraging signs that BRAK is rethinking its position. Accordingly, the manufacturers are to be more closely involved in the further development of the KWS interface in the future. It has apparently been recognized that expertise on the part of software companies can not only pave the way for the introduction of ERV in the judicial authorities, but also accelerate it.
With this development, a common path between BRAK and software manufacturers now seems to be emerging. This allows a positive outlook on the future of electronic communication. It would be desirable for this new self-image to be extended to other areas. It could help that the Federal Minister of Justice, Dr. Marco Buschmann, has promised the federal states 200 million euros for the coming years for projects to digitize their judicial authorities. In order to use this money as effectively as possible, it would be advisable to draw on the experience of the legal profession as well as SIVERV. There are certainly numerous approaches with which projects, structures and technologies can effectively advance the level of digitization in the German justice system. Then the judicial authorities would not have to start from scratch again, but could avoid mistakes and successfully lead the German legal system into an age of "sensible" digitization together with all stakeholders. This would give the cooperation between authorities and the legal profession the long-awaited and long overdue positive boost.