Volume 18, Number 8
By Sharon D. Nelson and John W. Simek
Virtually every e-filing pilot that has begun in the past several years has been technically successful. E-filing is the electronic transmission of documents to a court system in lieu of the traditional paper filing. What do the lawyers and judges like about e-filing?
Here's what court administrators say:
- "They don't have to jump in their cars and rush to the courthouse."
- "Their documents are available to them when they travel."
- "The doggone thing works without a hitch."
- "It's fast, simple, and cheap-they love saving money and time."
- "If they use it, they love it. Our challenge is to get them all to use it." The Cutting Edge
It has probably been a while since you saw the words "federal government" and "trailblazer" in the same sentence. Nonetheless, "trailblazer" is the appropriate word to describe the role that our federal judiciary has played in the development of electronic filing of court pleadings. Beginning in January 1996, when the first federal court began allowing the electronic filing of pleadings, and continuing to the present, the federal judiciary has compiled an impressive record of successes.
The federal ECF (Electronic Case Files) system is overseen by the Administrative Office (AO) of the U.S. Courts. ECF has been a triumph from the beginning. The federal courts continue to roll out ECF software upgrades and expand the number of courts using the system. The current projection is that all federal courts will be using ECF by 2005.
Why has the federal system been so successful? The AO has carefully followed the KISS principle: Keep It Simple, Stupid. The learning curve for ECF isn't steep. Did you have trouble learning the rules for Candyland and Chutes and Ladders? If not, you won't have any problem mastering federal electronic filing.
What are the essential steps in e-filing? Lawyers (or staff) create a document on their word processing software, "print" it as a PDF file (it doesn't really print, but rather creates a file in PDF format, which is then saved), connect to the Internet, log on to the ECF system, specify the case in which the document is to be filed, select a docket entry, select the parties, and append the PDF document. At training sessions, lawyers easily master the process in just a few minutes. The entire process (minus the original document creation) takes about two minutes and concludes with an electronic receipt.
What technology must a lawyer have to participate?
- A PC with Windows, or a Mac.
- A word processing program (Word, WordPerfect, etc.).
- Internet access and a browser.
- Adobe Acrobat (or other PDF writer).
Most lawyers have everything except Acrobat. Why is Acrobat necessary? To preserve formatting. The Adobe Acrobat Writer produces documents in PDF (portable document format), which is now a de facto standard in the federal government and private industry. Producing files in this format means that documents you send the court will have their fonts, spacing, pagination, footnotes, tables, indices, etc., preserved exactly as you created them.
The most recent federal e-filing statistics. As of August 2001, the AO reports that 58 federal courts (44 bankruptcy and 14 district) were in some stage of electronic filing implementation. Nineteen of those courts (11 bankruptcy and eight district) were already in live operation. Each new court goes through an implementation period that takes approximately ten months from initiation to live operation. The AO will continue to add nine new courts every two months, and plans to finish the national implementation by early 2005.
In the 19 live courts, ECF now manages nearly 1 million cases with more than 10 million docket entries. Now that the AO has converted cases from legacy systems into the ECF system, available statistics no longer show how many of the total entries were made in ECF. However, monthly activity totals show what's happening with new filings. The federal courts are getting about 15,000 new cases and 300,000 new docket entries and documents per month with about 33 percent of those documents filed and docketed electronically by the lawyers. Over time, the AO expects that percentage to peak at around 50 to 60 percent. Some percentage of the docket entries-for orders, scheduling notices, etc.-are initiated by the court and will always be made by court staff. And, at least for the present, court staffers docket pro se activity.
The federal courts now have approximately 15,000 lawyers who are registered and trained-and about 8,000 of them have filed electronically!
E-Filing in the States: Three Attitudes
The states break down into three basic groups: those who are watching and waiting; those with a big toe in the water in the form of pilots; and those, like Colorado, moving ahead as fast as possible.
In general, about half the states are currently engaged in some kind of electronic filing. Of the remaining states, about half are planning e-filing projects, while the others are focusing on upgrading their technology or their case management systems. Two of the states that have attracted the most attention:
- Colorado, the first state to undertake statewide electronic filing. Using a system developed by CourtLink, Colorado courts began to come online in July 2000. In January 2001, all 63 Colorado district courts' civil and domestic cases came on board, followed in May by the probate and water courts. About 2,800 of Colorado's 14,000 lawyers have registered to participate in the electronic filing system and about 1,000 (a little over 7 percent of them) have electronically filed a court document. More than 10,000 documents have been filed thus far.
- Georgia, the XML leader. Georgia continues to push the boundaries of what may be possible for electronic filing in the future. The state of Georgia is currently conducting an electronic court filing interoperability pilot that involves four counties and four vendors. The vendors are E.filing.com, Verilaw, @Court, and Counterclaim.com. Because Georgia has an independent court system with 159 counties and approximately 1,000 courts, the state is eager to prove that different vendors in different courts with different case management systems can not only create their own end-to-end systems, but also make them operate with other systems. The pilot is legal XML-based as a key to interoperability.
Obstacles to e-filing include the dead weight of the past: case management systems and legacy technology. More and more states have begun to recognize that e-filing makes little sense as an independent entity. If cost and labor savings are to be realized, electronically filed documents must concurrently enter a case management system. If they do not, the same duplication of effort that exists in the paper world will be replicated in the electronic one. Many states have placed e-filing on the back burner while they struggle to establish one integrated case management system statewide, hoping that they might then add an e-filing module designed to integrate with that system.
Legacy technology has been an impediment to technical advances in many states. Technology never comes cheap. Worse yet, the day it arrives, it is well on the road to obsolescence, and its replacement and/or modification must be accounted for in future budgets. Many state courts decry the ancient technology with which they are saddled. Frequently, bringing the technology infrastructure up to date is a prerequisite before e-filing can even be considered. Finding the money to do so has been a considerable state court challenge.
Is anyone in charge here? Colorado was a perfect state to undertake statewide e-filing. There was one case management system statewide, and the courts are centralized under the Office of the State Court Administrator. A number of states, including Michigan, Texas, and Ohio, bemoan that their county courts are wholly independent, adopting their own case management systems, their own e-filing systems, their own rules, etc., without any thought to interoperability between counties. The "do your own thing" approach makes it all but impossible for a central state office to achieve a single harmonious approach to any aspect of court management or to reduce costs by achieving economies of scale. One state supreme court clerk said jovially, "Heck, I'm not even sure how many counties we've got-it doesn't much matter, they all do what they please anyhow."
Data, data, who's got the data? Control over court records is a prickly issue these days. Some e-filing companies, struggling to turn e-filing into a profitable business model, seemed to have found the pot of gold in court records. Charging to access, print, and/or download court records certainly makes business sense. Large firms are eager for access to all the court records they can get, and are certainly willing to pay for it. Down the road, repackaging and selling court information may be a huge boon. Who wants that data? You name it-banks, realtors, investment firms, credit card companies, advertisers, landlords, retail merchants-the list goes on and on. Data is gold, and buyers will pay a premium for it.
Some courts have no problem with third-party vendors holding their data, saying flatly that public records are public records. Other courts are more wary, and concerned about everything from preservation of the data (what if the vendor files for bankruptcy, loses or corrupts the data, or doesn't properly back up data?) to privacy ramifications to the unknown implications of using data for purposes the courts may not yet have considered. These states prefer to safeguard court records as a matter of public trust, partly because they believe they are charged with the preservation of these records and partly because the entire judicial world is now struggling with what happens to formerly "practically obscure" documents when they become "instantly and forever available globally" on the Internet.
Selling and training. According to court administrators, lawyers are by far the biggest impediment to the success of e-filing. Over and over again, court administrators lament that "lawyers are all but untrainable." Among the comic grumblings:
- "They went to law school for three years and none of them can read."
- "The worst part of e-filing? Lawyers! We had to spend two hours on the phone walking them through things that were absolutely simple."
- "Our chief deputy clerk spent six to nine months holding the hand of every lawyer in town, trying to teach them to e-file. He was pretty frustrated."
Why are there difficulties in "selling" e-filing? Some courts speculate that lawyers and judges are simply hidebound and resistant to change. Others say the process is slower than e-filing devotees would like, but still coming along. Some states, like Colorado, have found that mixing paper and electronic files in the same case can be an impediment. Lawyers won't get on the train unless the judges are there, and many judges are older and unreceptive to the new technology. Finally, there are concerns about exposure of a client's private information.
Public access versus privacy rights. The movement toward court electronic filing in state courts has been far more sluggish than experts predicted several years ago. One of the many reasons involves the whirling debate surrounding the right of public access to court records and the competing right of privacy. These two interests must be balanced as technology both assists us in expanding the right of public access and bedevils us by opening a Pandora's box where privacy rights are concerned. The notion that we must balance these two interests has achieved fairly mainstream acceptance. The devil, as always, is in the details.
The states are taking advantage of different approaches to this issue. No one disputes the intrinsic right of the public to public records, but more and more, courts are beginning to realize that having to get into a car and drive down to the courthouse to look at a particular case file or files really does make those documents practically obscure. On the Internet, they are instantly available worldwide, and once the horse is out of the barn, it cannot be recalled. What's so bad about that? Potentially, it can lead to increased junk mail, spam, and telephone solicitations, and to enabling those who would con, steal identities, prey on the weak, or threaten people with Net exposure.
There are, of course, ways to address these concerns, but the states are just beginning to come to grips with them. Some states now restrict electronic access to court records based on the area of law (family law, criminal law, Social Security disability claims, and juvenile law are areas commonly restricted). Others, especially in the pilot stage, restrict access to lawyers of record, parties, and court personnel. Many courts say simply that they are studying the issues and haven't yet made a final determination.
There has been some movement on the federal side of this issue. On August 15, 2001, the 14-judge Committee on Court Administration and Case Management of the Judicial Conference of the United States made public its unanimously endorsed report and recommendations for a nationwide policy governing the electronic availability of federal court case file information. The committee recommended:
- Documents in civil cases should be made available electronically to the same extent that they are available at the courthouse with one exception (Social Security cases should be excluded from electronic access) and one change in policy (that certain "personal data identifiers" should be modified or partially redacted by the litigants; these identifiers are Social Security numbers, dates of birth, financial account numbers, and names of minor children).
- Public remote electronic access to documents in criminal cases should not be available at this time, with the understanding that this policy will be reexamined within two years of adoption by the Judicial Conference.
- Documents in bankruptcy case files should be made generally available electronically to the same extent that they are available at the courthouse, with a similar policy change for personal identifiers as in civil cases. Bankruptcy Code § 107(b)(2) should be amended to establish privacy and security concerns as a basis for the sealing of a document; and the Bankruptcy Code and Rules should be amended as necessary to allow the court to collect a debtor's full Social Security number but display only the last four digits.
- Appellate case files should be treated at the appellate level the same way they are treated at the lower level.
We can do it ourselves! Perhaps the most surprising trend in 2001 is the number of states with homegrown e-filing systems. Some states are simply self-sufficient by nature. Others object to the cost of e-filing technology, or, with those vendors who provide the technology at no cost to the courts, to the requirement that the vendor collect filing fees and/or hold court data. Some of the states that have chosen to go it alone are New Jersey, New Mexico, Florida, Kansas, West Virginia, and Mississippi. In general, they note that in-house development is slower, and with less experience under their belts, in-house programmers tend to take longer to overcome difficulties that e-filing companies have already solved. Still, many states believe that the price is right and that there will be more participation if there are no electronic filing fees. They are also happier having control of their own data.
We can take care of pro se litigants. One of the chief complaints about many commercially developed systems is that they don't handle pro se litigants. At the recent Court Technology Conference 7 (CTC7), Kim Allard, the director of information services at the Utah Administrative Office of the Courts in Salt Lake, gave a superb demonstration of a homegrown web-based technology aimed at pro se litigants.
The Utah courts had first tried a kiosk system called QuickCourt to handle pro se divorces and landlord/tenant cases. Utah placed kiosks in public libraries, where they were very popular with the public-too popular. Long lines to use them crowded the libraries. After waiting an hour or so to use a kiosk, people frequently did not have all the information they needed-do you know the full legal description of your property, tract number, lot number, and all? They'd have to leave, come back, and wait in line again, which caused much grumbling. ("You call this QuickCourt?") The system was a burden to the librarians, too, who frequently had to refill the paper trays that emptied quickly after a 58-page filing had been printed out. The court decided to migrate to a web-based application, one that people could access from any computer with Internet access, including public access terminals in the courthouse.
What was most helpful about the Web-based system were clear instructions about the entire process of representing oneself in a divorce or landlord/tenant matter. This meant that the courts were seeing more informed litigants who could file their forms electronically if they had a credit card to pay the filing fees, or who could bring their completed documents to court if they didn't have a credit card. From the clerks' perspective, the administrative burden of having to deal with incomplete, handwritten forms has greatly lessened. Today, about 30 percent of all pro se divorces are handled via the web. The state hopes to increase that percentage in the coming year. As one of the judges at CTC7 put it, "The courts have skipped the twentieth century, technologically speaking." Slowly though the process may have started, our courts are moving from a system essentially developed in the nineteenth century to a twenty-first century high-tech replacement. For those who have complained that the e-filing train has moved slowly out of the station, hang on-it is picking up steam!
Sharon D. Nelson is president and John W. Simek is vice president of Sensei Enterprises, Inc., a legal information technology firm based in Fairfax, Virginia. The firm is the developer of the electronic filing system for Fairfax County Circuit Court. They can be reached via e-mail at firstname.lastname@example.org.