GPSOLO December 2010
In Search of a Paperless Office
By J. Anthony Vittal, with the assistance of and comments by Yvonne M. Renfrew
When I left my position as general counsel of Identity Theft 911, LLC, to return to private practice in Los Angeles, I was presented with the opportunity to practice what I had been preaching—to start a paperless office. After all, the profession was being driven in this direction by courts and agencies seeking to reduce their costs of operation by moving to paperless environments.
By the time I set up shop in 2006:
- The U.S. bankruptcy courts had moved to a completely paperless environment, in which the court would not even accept case-related correspondence on paper. Everything had to be routed through the courts’ case management/electronic case filing (CM/ECF) system.
- Except for initiating pleadings (complaints, counterclaims, cross-claims, and third-party claims) and courtesy copies (more about them later), the U.S. district courts had moved to a completely paperless environment, in which mandatory filing through the CM/ECF system effected service of the filed document on all other counsel of record in the case who were registered users of the CM/ECF system.
- State and federal agencies were adopting e-filing as the method of choice for filing documents with them. Ranging from notices of judgment lien to annual statements of information for corporations and LLCs to license renewals, online e-filing was becoming ubiquitous.
- A survey by Vault.com (released in 2000) had concluded that more than 80 percent of all business correspondence was taking the form of or was being transmitted by electronic mail. Of those surveyed, 72.5 percent said that e-mail had replaced faxing, and 45 percent said it had replaced phone calls. In the ensuing years, the use of formal business correspondence decreased even further.
- The U.S. courts of appeals have adopted mandatory electronic filing for cases in those courts.
- State courts are moving to CM/ECF systems. California, with the largest collection of trial courts in the world, is on the verge of adopting a statewide electronic CM/ECF system. The pilot project for that system is up and running in the Orange County Superior Court and should be rolled out for the rest of the state by the end of 2011. Unlike the federal system, however, the California Case Management System will use one or more vendors as intermediaries between the filer and the court to ensure that the filing is in the proper form.
- Pending implementation of true e-filing systems at the state level, virtually every court in California and numerous state courts elsewhere across the country accept “fax filings” of court papers. Rather than filing by fax, however, attorney services accept portable document format (PDF) files of the documents (typically uploaded to them by web interface), generate the appropriate tabbed “original” as if it were a fax filing, and return a conformed face page by the end of the day or the next day. One Legal ( www.onelegal.com) now offers that service in 13 states—California, Hawaii, Idaho, Kansas, Maryland, New Mexico, New York, North Dakota, Oklahoma, Pennsylvania, Texas, Utah, and Washington—and in select counties in Illinois and Missouri.
- Studies have underscored the “green” benefits of paperless workplaces, noting their reduced carbon footprint and the reduction of printer supplies waste (paper and ink).
Even with this push toward acceptance of paperless practice, I was surprised to find the extent of resistance to change. Despite the fact the U.S. district courts’ CM/ECF systems effect service of court papers automatically by e-mailing all counsel of record and other interested parties a “notice of electronic filing” (NEF) entitling the addressee (if counsel of record) to a one-time, no-charge download of the filed document using the link included in the message, some lawyers and law firms flatly refuse to adapt, persisting in serving paper copies of their electronically filed documents on all counsel by snail mail, overnight courier, or messenger.
In the California state court system, service by electronic mail requires the stipulation of all counsel. Most counsel have been willing to stipulate to service by electronic mail. Others refuse to so stipulate, requiring the continued maintenance of the infrastructure to generate and receive service of paper documents. Oddly, some of those refusing to so stipulate provide “courtesy copies” by electronic mail concurrently with service of the paper documents.
Speaking of courtesy copies, the U.S. district judges in California almost invariably require that a paper copy (or two) of every electronically filed document be lodged at their chambers drop box within a specified period of time following the e-filing, together with a copy of the NEF. This appears to be a cost-shifting exercise to oblige the litigants to absorb the cost of printing, tabbing, blue-backing, and punching the courtesy copy or copies for use in chambers. Most attorney services have adapted, accepting electronic copies of the filed documents (by web interface upload or by e-mail), from which they will generate and deliver the tabbed, blue-backed, hole-punched courtesy copies to chambers.
Equipping the Paperless Office
Against this background of requirements, how can you transform your own practice into a paperless (or, at least, paper- less) office? Start with the following:
Acrobat. It is virtually essential to own and know how to use Adobe Acrobat Professional ( www.adobe.com). One can print directly to PDF without Acrobat (Microsoft Word can generate PDFs with the help of add-ons or drivers, and Corel WordPerfect can do so without such add-ons), but the document-assembly and Bates-numbering features of Acrobat Professional are essential to the creation of elegant PDF files for e-filing.
Adobe Acrobat 9 Pro Extended provides numerous additional features, including the ability to create PDF Portfolios organizing the widest range of content—such as documents, spreadsheets, e‑mail, images, video, 3D, and maps—in a single, compressed file; sharing video by automatically converting a variety of video formats to Adobe Flash (SWF) for reliable, cross‑platform sharing of video, animations, and applications completely within PDF documents; and creating clean PDF files of web pages.
Acrobat allows you to distribute PDF documents to reviewers who, using the free Adobe Reader, can edit, comment, and annotate the documents while leaving you in control of the master document.
For more help incorporating Acrobat into your own practice, check out Rick Borstein’s “Acrobat for Legal Professionals Blog” ( http://blogs.adobe.com/acrolaw). Borstein is Adobe’s business development manager for Acrobat in the legal market, and his blog is full of tips, tricks, and useful solutions.
Scanner. You will need a scanner capable of readily handling the volume of paper documents received by your office. It should scan in duplex (i.e., scan both sides of the sheet on a single pass), scan in color or black-and-white, use an automatic document feeder (ADF) for input, and generate output in PDF and other formats (TIFF, JPEG, etc.). It should include document management software and have the ability to handle various sizes of documents.
Most offices require a production-grade scanner, with an ADF capable of processing at least 500 pages. ADF capacity is very important in overall cost savings. With a high-capacity ADF you can feed all mail for the day in a single batch into the scanner; the scanner will then automatically adjust for non-matching paper sizes and types, extract from the resulting single “big” PDF each of the constituent documents, and save them to the appropriate locations.
Examples of production-grade scanners include those in Canon DR line ( http://usa.canon.com); my co-author, Yvonne Renfrew, has two such scanners, one of which will take tabloid-size paper. For less-demanding offices, consider a desktop scanner, such as the Canon image FORMULA DR-3010C, the Fujitsu fi-6130 ( www.fujitsu.com), or the even more compact Fujitsu ScanSnap S1500.
Multifunction printers (MFPs), ranging from desktop versions to stand-alone workhorses, offer the ability to scan, as well as copy, print, and fax, and are networkable. For the relatively small volume of printed work product I generate, I find that my Xerox Phaser 8560MFP/D ( www.office.xerox.com) does everything I need. As Yvonne observes, however, the big drawback of MFP devices is that they fly in the face of the redundancy principle. If one MFP function is down, typically all are down. Says Yvonne, “I am absolutely crazed about redundancy. I must have at least two ways to accomplish any task (e.g., scanning, printing, etc.). This is something easily accomplished because, e.g., an inexpensive ScanSnap can serve both as a handy auxiliary desktop scanner and as the fail-safe redundant scanner.”
On the other hand, printer redundancy should not be a problem because most of us have multiple printers—even if the extra one is the old laser printer tucked away in the storage closet. And if you don’t have a backup printer, you can always create a PDF and e-mail it to nearest FedEx Office (previously Kinko’s) for printing. In a terrible pinch, fax the document to yourself. If you use a desktop fax application such as eFax ( www.efax.com) and have set the application to receive in PDF, the document will arrive in your e-mail as a PDF file—not quite as crisp as a first-generation PDF, but better than no document at all and something you can take to any other office on a thumb drive to print a paper document if required.
Data storage. As you shift from paper-based files to electronic files, you will need adequate electronic storage. Terabyte (TB) drives are now commonplace and relatively inexpensive. I am running a 1 TB drive as my primary data drive in my workstation, and for backup I have a mirrored 1 TB network-attached drive.
The person in your office responsible for collecting, opening, and distributing the mail now will have an additional task—scanning the incoming mail to PDF. You can make your own decisions about how to handle advertising materials and junk mail. Yvonne scans everything. Batch scanning all incoming mail will permit you both to save individual pieces of correspondence and to preserve the entire batch itself, much as we did with our old‑school chronological “reader files.” In my own practice, I toss the junk mail and unwanted ads, keep those ads I want in paper form pending further review, and scan inbound correspondence and court papers. Because my bookkeeper insists on working with paper, I keep incoming invoices and statements in paper form.
If you want to keep track of the date a document is received, there are a number of protocols you can use. You could rely on your scanned PDF file creation date, so long as you are religious about scanning your incoming mail on the date of receipt and have extremely restricted access to your systems. Unfortunately, as Yvonne observes, there are too many ways this can get changed or corrupted, and the practice is forensically unsound, so this method would be worthless if you ever were required to prove the date of receipt.
You can include the date of receipt in the file name you assign the scanned or received document with a code such as yymmdd. You can include the date of receipt in the file properties dialog box for the PDF file. You can keep a chronological file with a folder for every day’s incoming documents. Whatever protocol you decide on, follow it religiously.
However you track the documents, once they are scanned and named, route one copy of the document to the relevant file for the matter and forward a copy to the responsible attorney(s). Depending on your office protocols, the intake person, the attorney, or the attorney’s assistant also can forward a copy of the document to the client.
The same procedures should apply to documents received electronically. Rename the files to match your file naming protocols. Take the steps necessary to reflect the date of receipt. Route the documents appropriately.
Be sure to follow your procedures for docketing and calendaring.
To the extent you can do so, resist the temptation to print a paper copy of the PDF created on intake. Instead, try using one or more wide-format flat-panel displays for your workstation. I am using an LG Flatron 22-inch wide-format LCD monitor ( www.lg.com), which allows me to see two pages side-by-side (portrait format) at 100 percent of the original view size.
Work Product Workflow
Correspondence. Virtually all of my outbound correspondence is transmitted electronically. Most is e-mail, some with the formality of a business letter, some with the informality of a text message, and some in between. When I want to be more serious, I will generate a formal letter and forward it as a PDF attachment to an e-mail message. Virtually all of my engagement agreements are prepared and circulated in this manner. Letters are signed with a graphic of my signature, placed into the letter as an image, before the PDF of the letter is created.
Court papers. Court papers are prepared in my word-processing application, signed with a graphic of my signature, and then printed as PDF files. If I am preparing a court form, I generate it using the relevant forms application or a PDF template form from the court website and print it or save it as a PDF file.
Using the “insert” function in Acrobat, I then add document dividers (e.g., “Memorandum of Points and Authorities,” “Declaration of John Smith,” etc.), exhibit dividers, exhibits, tables of contents and authorities, and, at the end of the document, the proof of service. By creating a document in this manner, rather than printing it to paper and then scanning it, I have a higher-quality final document and a much smaller file size.
Once the document is compiled, I sign it using the Acrobat digital signature applet (see the illustration at right). You can also create a PDF “stamp” of your signature. While it may lack the legal gravitas of a certified/registered digital signature, it easily serves as well as the ubiquitous “rubber signature stamp” and, once created, is dead simple to use. The signed document—whether using a digital signature or a “stamp”—is the version of the document I serve.
Some e-mail servers impose limits on the size of messages that can be sent or received. If the document is too large to serve by e-mail, you can break it into parts using the Acrobat “delete” function to get rid of the unwanted portion of the original file and saving the resulting files as Part 1, Part 2, etc. Alternatively, you can use the “cloud”—store the large file on the Internet, where the recipient can get it directly. One cloud server is MobileMe ( www.me.com), which lets you upload the file to the public partition of your server. Another Internet option is a dedicated file-transfer service such as YouSendIt ( www.yousendit.com). In both cases, an e-mail is sent to the recipients with a link to enable them to download the files.
Once the document is served, I sign the proof of service using the Acrobat digital signature applet referred to above, then save the document as a new file named [FILENAME] AS SERVED. This becomes the document I file with the court or agency. When I receive the conformed copy of the face page from my attorney service, I use the Acrobat “delete” function to delete the face page from [FILENAME] AS SERVED, then use the Acrobat “insert” function to add the conformed copy of the face page in its place, then save that document as a new file named [FILENAME] AS FILED.
Remember, however, that most courts require us to keep the “signed original” of a document on file for at least as long as the action remains pending, and often for long after that. Because the federal CM/ECF rules provide that the attorney’s log-in is his or her signature, the requirement does not apply to attorneys’ signatures on e-filed documents in federal court but does apply to the signatures of non-attorneys on declarations, proofs of service, and the like. These signature retention requirements are a serious impediment to a truly paperless practice, as they mandate the retention of at least the signature pages of documents served or filed in the action. As more people become familiar with and use digital signatures, that requirement may be obviated.
As can be seen, good intentions notwithstanding, there are impediments to the creation of a truly paperless office. These impediments are failing the test of time, however, and we are hopeful that, before we retire (whenever that may be), we will be able to enjoy a truly paperless practice. We hope you will be able to do so, too.
J. Anthony Vittal is in private practice with The Vittal Law Firm, based in Los Angeles, California. A former member of the ABA Standing Committee on Technology and Information Systems, a member of the editorial board for GPSolo's Technology & Practice Guide, and a member of various technology-oriented committees of ABA Sections, he speaks and writes frequently on legal technology topics. He may be reached at email@example.com. Yvonne M. Renfrew, a 2004 winner of the TechnoLawyer Award, practices law in Los Angeles and speaks and writes frequently on technology topics. She may be reached at firstname.lastname@example.org.Copyright 2010