The Force of E-Filing
The Move Toward Digital Documents Is Slow, Confusing—and Inevitable
Posted Feb 2, 2006 4:32 AM CDT
By Jason Krause
Last November was an anniversary of sorts for electronic filing, a system that uses digital documents in court filings to replace the paper filings used in centuries past. The federal courts marked 10 years since the introduction of an electronic filing system, unflatteringly known by the acronym CM/ECF. It is the largest e-filing effort to date.
But while the federal courts’ move toward digital documents is nearly complete, the rest of the country is mostly just getting on board. An example: Sixteen months ago the DuPage County Circuit Court became one of the first court systems in the state of Illinois to accept electronic court documents.
Though e-filing has long been heralded as the future of the practice of law, no one had any idea what would happen when DuPage launched its system. Few expected nothing would happen, but nothing, in a manner of speaking, did.
Even though the software vendors who built the system in the suburban Chicago county advertised extensively with the local legal community, there was little interest when it launched in October 2004. “It was probably at least 30 days before anything came in,” says Bob Keltner, a supervisor in the court clerk’s office and the man responsible for DuPage’s e-filing system. “It was like we opened a business and then sat there twiddling our thumbs waiting for somebody to walk in the door.”
The supplemental filing that came in after about a month set off a flurry of triumphant e-mails from the vendor that built the e-filing system. “It was like, ‘We got a filing, woo-hoo!’ ” Keltner says. Since then, e-filing has steadily grown for the county court in Wheaton, but electronic documents are still a fraction of the overall amount of documents processed there.
In fact, e-filing is being rolled out slowly and unevenly across the country, which means it is producing only evolutionary changes in the practice of law. The technology was supposed to have a dramatic impact, saving courts millions of dollars, staving off budget crises, streamlining cases and changing the way lawyers and courts interact. And while e-filing is mandatory in most bankruptcy courts, most federal courts and countless other jurisdictions, its full impact has yet to be felt in most court systems.
The federal e-filing system is now in use in 82 district courts, 91 bankruptcy courts, the Court of International Trade and the Court of Federal Claims. And most state and many local court systems are moving toward e-filing. According to the 2004-2005 ABA Legal Technology Survey Report, about 45 percent of respondents file documents electronically at least twice a year. The report also found that 5 percent of all lawyers e-file daily, 9 percent file electronically several times a week, and 15 percent do so multiple times a month.
“We’ve never ballyhooed the system as a cost-saving mechanism, but it does have that benefit,” says Dick Carelli, spokesman for the Administrative Office of the U.S. Courts. “I don’t have exact figures, but we’ve said it has saved the court systems millions of dollars a year.”
Courts have been cautious about upsetting the way they do business. Many courts that offer e-filing give judges, lawyers and clerks time to adjust long before making it mandatory. And even when a court makes digital the mandatory way to file documents, there are usually types of cases or files that are exempt. In many courts these are criminal cases where there is a high volume of filings or a large number of low-income defendants who may not have easy access to a computer.
For the most part, the typical court clerk’s office employs the same number of people, and only a few job descriptions have changed. “When you talk to judges, some will say, ‘I don’t think this has reduced costs’—at least in the way e-filing was hyped in the ’90s,” says Judge Andre Davis with the U.S. District Court in Maryland. “If anything, the intensity of labor is greater because you need quality control, somebody looking over the lawyer’s shoulder because, quite frankly, things need to be perfect.”
E-filing may make it possible for more court workers to focus on legal issues as opposed to clerical ones. Davis says that when secretaries retire, some of his colleagues are using their budgets to hire more law clerks instead of legal secretaries since less secretarial work is needed. “There’s no question it’s improved efficiency,” Davis says. “I get letters from lawyers right at my computer, and I can respond, even rule on a motion, often within about 30 minutes.”
And though e-filing may be an expense and headache up front, it is still heralded as a way to save money in the long run. “Our resources are depleted every day, and if we don’t learn to be self-reliant, the job gets exceedingly more difficult,” says Christina Habas, a criminal division judge with the Colorado District Court in Denver.
Lawyers who use the system can file and receive documents with greater speed and accessibility. “I don’t need to be in the office or even in the state,” says David L. Masters, principal attorney with the Masters Law Firm in Montrose, Colo.
“When clients tell me they have reviewed the file, I can go ahead and file it from anywhere. And when someone files electronically, I get a notice almost immediately.” The biggest factor in whether e-filing is adopted is often judges’ opinions. Not every judge likes to work on a computer, and in many jurisdictions the technology is only adopted as quickly as judges insist on using it. E-filing proponents believe the key to getting judges and lawyers to use the system is training.
Habas says Colorado judges have been helped by a Denver training course. She worked with one judge who rejected electronic documents out of hand when lawyers tried to file them for a case. But once judges realize that they can make comments in electronic documents, electronically sign an order, and do everything they do in the paper world but more quickly, they tend to move to electronic documents. “As judges get training and see how it works, you will see many of them move to it exclusively,” Habas says. “Now I walk into a trial judge’s office and his inbox and outbox are empty.”
The federal court system is rare in that it is built on a single electronic platform rolled out in a relatively consistent way. Each federal courthouse is allowed to design e-filing rules that suit its particular needs, but for the most part, a lawyer who works in one federal court should be able to use the e-filing system for any other federal courthouse without confusion.
However, when it comes to state and local courts, there are 50 different states with 50 different rules for filing court documents. And within each state, e-filing is being hashed out jurisdiction by jurisdiction, often county by county. Usually, the state supreme court will create general e-filing rules. Then a few jurisdictions launch pilot projects (DuPage is an example) to report back with changes that need to be made to the rules.
Since most jurisdictions base their systems on the federal courts’ rules, Masters says, differences may be subtle, and most rules and procedures are likely to be similar from one court system to another. “I would think that e-filing in multiple jurisdictions should not present any greater challenges or problems than the other procedural differences between jurisdictions,” Masters says.
When DuPage County rolled out its e-filing project with several vendors, there were immediate misunderstandings among the vendors about how the system should work. Most court systems have to rely on vendors like Lexis-Nexis to provide the software to make the system work. In this case, Illinois’ Supreme Court mandated that each court offer service with at least three vendors. These vendors charge lawyers a fee for filing, which is usually negotiated with the court.
As many court systems have found, making e-filing work smoothly involves a lot of trial and error. The vendors all had ways of working that were not necessarily consistent with DuPage’s. “There were discrepancies about where documents need to be stamped, how things needed to be signed,” Keltner says. “One vendor allows you to stamp anywhere, which they brag is the greatest innovation since sliced bread, but it doesn’t help because we need things done the right way.”
There are also a number of nontechnical but very important issues to be considered. The first big issue is privacy. In several states, government and court documents have been taken off the Web because they didn’t comply with laws prohibiting public officials’ addresses and telephone numbers from being posted on the Internet. Court clerks complain they don’t have the budget to redact individual pieces of information from court filings, which means many jurisdictions have had to develop systems in which documents are not available to the public online except upon request.
Another important question is distributing responsibility for the backup of e-filed documents. A nightmare scenario is that a hard-drive crash or other computer catastrophe will wipe out a case filing. Courts have to decide whether they want to create a backup system off-site or put the burden of backing up case files on the lawyers. For financial reasons, many systems order law firms to keep one copy of every document as a backup. Another problem rarely addressed is whether a jury should use electronic files. In the paper world, juries are often limited to certain types of documents or transcripts of testimony they are allowed to use only for a limited time. But once all case files are digital, a court should decide whether juries should be able to look at electronic files on a computer and, if so, how to limit that access.
Sometimes electronic systems can’t do all the things courts can do with paper documents. For example, if a lawyer wants to file documents under seal, electronic systems tend not to be able to handle that, so lawyers have to make special arrangements with the court. The most difficult issue facing e-filing is how to handle pro se litigants. The U.S. Supreme Court has affirmed that people with no attorneys need equal access to the courts. Most courthouses moving to e-filing offer computer terminals or assistance to help such people, but it is up to each jurisdiction to decide how to provide service. “When we say that a court has made e-filing mandatory, there should be a big asterisk there saying that we mean it’s mandatory for the bar,” says Carelli of the federal system. “Persons who can’t get to the court or can’t get to a computer can still file paper.”
Unfortunately, most courts don’t offer e-filing training. Proponents of electronic court filing believe training—online, at the courthouse or in seminars through a bar association—can smooth the transition from paper to digital. A few courts require attorneys to take such a class before registering to e-file, but that is rare.
Habas says training for judges, lawyers and court employees should explain how e-filing works, from the genesis of a document through the disposition of a case. The e-filing process should work the same as things do in the paper world, something training should emphasize.
The basic steps in filing a document should not change, but some of the routing, rerouting and retyping of orders in the courthouse can be eliminated. “A good system should do the same things that get done with paper, just without some of the redundant steps,” Habas says.
Once clerks and judges figure out how they want the system to work, lawyers are often forced to adopt a system they neither understand nor have any interest in using. While many lawyers take for granted that others can use e-mail, the Internet, Adobe Acrobat and word processing software necessary for e-filing, not every lawyer is technologically able to use an e-filing system. According to the Legal Technology Survey Report, there are still a small number of lawyers who don’t use computers, as much as 5 percent among some small firms.
It doesn’t take a huge technology investment or extensive training to file over the Web. Most courts use Adobe’s portable document format as the de facto standard for electronic filings, though some also accept word processing files like Microsoft Word. PDFs provide full control over formatting, they can be searched for keywords, and they allow attachments to be included with any document.
An e-filing lawyer needs a computer and high-speed Internet access, as well as Adobe Acrobat PDF writer software, which costs around $120. And for scanning paper documents to convert them into electronic files, a high-quality scanner might also be necessary.
But don’t go overboard and include too much information (like digital presentations) in filings. “Because you can do it doesn’t mean it should be done,” Habas says. “A PowerPoint presentation with animations and color pictures doesn’t help; you make things difficult for the judge to read and obfuscate your points.”
But Masters, the Colorado lawyer, says including video or graphics should be done if it is central to a case and will effectively make a case. “Look at it this way: There was a time when pleadings were typed on a typewriter and you wouldn’t use italics, or fonts like Arial round for the headline and Arial for the body. But now lawyers do it because they can and it looks good,” he says.
Masters recommends a couple of steps to make PDFs easier to read:
• Under Document Properties in the file menu, set each document to open with a bookmark page. That page acts like a table of contents, telling the reader how many sections there are and what the titles are.
• Embed hyperlinks within the document to other files, like an affidavit or even the full text of a decision referenced in the document. However, Adobe Acrobat will not automatically highlight such links, so users should change the color to blue, which is the recognized sign of a hyperlink on the Internet.
For procrastinating lawyers, e-filing can even mean longer deadlines: In Colorado, lawyers can file until midnight and the document will be considered on time, though other jurisdictions may be less lenient. Keltner says if a lawyer or messenger runs into the courthouse with a filing and plops it on the counter at 4:29 (the cutoff is 4:30), the office will likely file it that day. But with e-filing, the message first goes to the vendor, then to the e-mail inbox of one of the court clerks, which might mean it won’t get processed until the next day.
No matter when or how courts decide to use e-filing, it is well on its way to becoming the standard. Courts like it because they save money on stamping and mailing, and it reduces the number of people who need to handle a document. And lawyers can have access to all orders, pleadings and other documents as soon as they are filed.
However, they can’t argue that they never got documents or a party was never served (as they once may have been able to with paper), since the systems save electronic notices that include the date and time each party is served.
One issue no one has addressed is how e-filing will change the culture and lifestyle people are used to at a courthouse. “I know attorneys who will come down here even though they know it’s easier to file electronically,” Keltner says. “They tell me they like coming to the courthouse—they like the human interaction, which obviously you don’t get doing it online.”
Jason Krause is a legal affairs writer for the ABA Journal.