Plugged into E-filing
Where it’s been, where it’s going
and how it affects legal assistants.
By Susan Jennen
Larson
September/October 2003 Issue
Every court electronic
filing project at some point faces a critical question — will attorneys
use it? At the December 2002 E-Court Conference in Las Vegas, members of
the American Bar Association’s electronic filing committee met with
vendors and courts to hear their concerns and issues regarding e-filing.
The most frequently asked question was: Why won’t attorneys use
electronic filing systems, and what can we do to get them to e-file? I
suspect the decision whether to use electronic filing really lies with
legal assistants in many firms. Consequently, I think the question
should be rephrased: Why won’t legal assistants use electronic filing
systems, and what can we do to get them to e-file?
The first step is for all legal assistants to understand where court
e-filing has been and where it’s going. This article discusses some of
the critical issues surrounding e-filing today, and highlights some of
the future features that will make the e-filing system much better to
use.
In the Beginning
Even though e-filing has been going on in some courts for several years,
the technology and concept have not yet matured. The low percentage of
courts that have implemented e-filing systems to date have applied
limited features and offered e-filing for limited case types. No U.S.
courts have implemented all the features e-filing promises for the
future, and no U.S. courts have introduced e-filing for all types of
filings and exhibits.
In the early years, courts turned to e-filing for class action cases.
With large numbers of plaintiffs and endless exhibits, e-filing offered
a streamlined way to file and view documents. Parties were given
passwords and access rights so they could view all filings online.
Documents were hosted on the vendor’s system, allowing for quick setup
and use for any given court. Fees were charged on a per-document or
per-filing basis to cover the technology and hosting costs. LexisNexis
was one of the first vendors to develop and host e-filing for class
action cases, and continues to offer this type of service today for
class action, as well as other types of cases.
Later, another e-filing model emerged allowing courts to install
e-filing software on their own hardware. In many respects this has
become the preferable approach because it allows courts to store its
e-filed documents in-house and retain control over them. It also allows
for easier integration with existing court case management systems and
better control over technology development costs. With this model,
courts collect their own filing fees, and sometimes add an “e-filing”
fee on top of existing fees to help cover the cost of the e-filing
technology.
This model also allows courts to integrate their e-filing systems with
existing court case management systems. This is an important goal for
most courts. As paper documents are filed in court, clerks enter data
into case management systems to track things such as filing dates,
document names, parties and attorneys. As electronic documents are filed
in court, the ideal scenario is to automatically import this data from
the e-filing system to the case management system, and any other systems
that need the data. Otherwise, clerks will be reviewing e-filed
documents and entering the same data into their case management system.
As courts move forward with both of these models, a significant concern
is that if courts don’t implement e-filing systems with some uniformity
or standards, the end result will be law firms having difficulty
adapting their e-filing processes for each court. Large firms filing in
multiple courts will have to learn the details of each court’s e-filing
system, adding a layer of complexity to firm processes and additional
costs for clients.
Standardization Efforts
A number of national efforts are underway to help address the issue of
standards and uniformity for court electronic filing systems and
processes. The following groups are working together to define and set
standards to help courts and vendors move forward with e-filing
projects: the Conference of Chief Justices, the Conference of State
Court Administrators, the National Association for Court Management, the
National Consortium for State Court Automation, Organization for the
Advancement of Structured Information Standards and the Global Justice
Information Network Advisory Committee.
The “Standards for Electronic Filing Processes” is a document that
recently emerged to identify policy standards, functional standards and
a conceptual model of the e-filing process. See
www.ncsconline.org/D_Tech/Standards/Standards.htm. Even though parts
of these standards are somewhat technical in nature, they are worth
reading for anyone interested in e-filing systems. Readers will find
discussions about e-filing policy, technology and business process
issues. For example, the policy standards address:
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the official court record
-
technical requirements (Web browsers and XML)
-
identification of the sender
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integrity of transmitted and filed documents and data
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court control over documents
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service of filings on opposing parties
-
when a document is considered filed
-
available hours for e-filing
-
remedies when e-filing fails
-
maintaining supplementary scanning capability for paper filed
documents
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eliminating unnecessary paper processes
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archiving electronic documents
The functional standards address:
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document integrity
-
system security
-
signatures and authentication
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case/document confidentiality
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acceptance and rejection of filings
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user and service registration
-
court payments
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submission of all filings
-
case opening filings and subsequent case filings
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service and notice
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judicial consideration of drafts
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clerk review
-
court initiated filings
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requests for and responses to requests for case information
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integration with document and case management systems
Another model of e-filing software also is emerging that might help
provide a uniform user interface across all court e-filing systems.
This model uses a “middleman” service that will accept filings from
attorneys and then turn around and package them properly to e-file
with any court. This will take the headache away from legal
assistants as they try to remember and package e-filed documents
differently for different courts. However, it will come with a fee,
and that fee will surely have to be passed on to clients.
Important Features of E-filing Systems
Of all the issues addressed by the “Standards for Electronic Filing
Processes,” a few emerge that are critical to law firms and the
courts.
Signatures. How does a law firm or a
client sign court documents filed electronically? Of course, they
can sign a paper copy and then scan it to “take a snapshot” of the
document and signature. Many e-filing systems in existence today
rely on this snapshot method, as they allow attorneys to scan
documents and submit them in the commonly used Portable Document
Format (PDF).
Another well-known approach is the user ID and password. Courts
assign a user ID and password to an attorney. Then all documents
filed under this user ID and password are trusted to be filed and
“signed” by that attorney. This is considered an “electronic”
signature, as it provides a completely electronic means for
identifying the sender and attaching the sender’s identity to the
filed documents.
Future e-filing systems will do better than either of these two
approaches. They will incorporate a more sophisticated way of
signing, commonly referred to as a “digital signature.” The concept
behind “digital signatures” is complicated, and also commonly
referred to as “digital certificates.” It involves many parties
working together to assign, use and recognize digital signatures
across many environments — not just court e-filing.
The first step is for an authoritative body to assign a digital
certificate, which involves a pair of codes called a “key-pair.” One
of the keys is private, and one is public and published in a
registry for public use. Using the appropriate software, an
individual can use the private key to “sign” a document prior to
sending. The originating software, such as Adobe Acrobat and
Microsoft Word, uses the private key and a mathematical formula
called a “hashing algorithm” to produce a “hash” number, which is
attached to the document. The document also can be encrypted at this
time, if desired. The private key isn’t sent or visible on the
document. However, an image of the sender’s signature can be
automatically “stamped” on a document when the sender enters the
private key.
Later, when a court or other individual receives a signed document,
a “look-up” is performed against the public key registry to find the
sender’s public key. The public key also can be stored within a
court database so a look-up isn’t required every time a document is
received. Once obtained, the public key is applied to the hashing
algorithm and another “hash” number is calculated. If it matches the
first “hash,” then it can be determined that the document was sent
and “signed” by the person who claims to have sent it.
To put such a system in place is no small matter, however. A single
authority for issuing signatures must be established, and software
applications must be programmed to use these types of signatures.
Attorneys must initially sign up to receive a digital certificate,
and then must not disclose the private key.
This raises an interesting question for legal assistants — should
they know an attorney’s private key if they are responsible for
preparing papers for that attorney? It would certainly be
inconvenient to have to ask attorneys to come over to the preparer’s
computer and enter the private key. It would be more convenient for
the preparer to present the papers for final review and then enter
the attorney’s private key. However, in the paper world, legal
assistants don’t forge signatures and the entering of another’s
private key would be the same as signing for the attorney on paper.
Clearly, if looked at this way, there is no question that attorneys
should not disclose their private keys, even to their paralegals.
Public Access. As courts offer
e-filing, they must make some decisions regarding public access to
electronically filed documents. Most paper court documents are
public and available in person at the courthouse, but only a few
court documents are available in electronic form on the Internet.
Part of the reason is courts don’t have electronic images of all the
paper-filed documents. However, as they receive electronic filings,
they obtain electronic copies. The most logical step then, is to
make the documents available on the Internet.
Courts have not had an easy time, however, making the decision to
put electronic documents on the Internet, even if they were
electronically filed. For the past 10 years, courts have debated
whether or not public documents should be available in their
entirety on the Internet. Some argue the personal information
contained in some court filings would be embarrassing and perhaps
harmful if more readily available through the click of a mouse.
Others argue public means public, including the Internet.
The most recent development in this area is a document published in
October 2002, by the Conference of Chief Justices and the Conference
of State Court Administrators that set forth “Guidelines for Public
Access to Court Records (Guidelines),” which is available for
download at
www.courtaccess.org/modelpolicy/
18Oct2002FinalReport.pdf. These
“Guidelines” are not mandates but provide a suggested course of
action for state courts wrestling with Internet access issues. In a
nutshell, they suggest some court documents and data from court
documents should not be available on the Internet. They encourage
state courts to identify a list of items that should be kept from
the Internet, even though the information is available in paper
files. For example, Section 4.50 of the “Guidelines” advocates the
following information only be available in person at the courthouse:
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address, phone and other contact information for victims and
witnesses in criminal, domestic violence, stalking, sexual assault
and civil protection order cases/proceedings
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Social Security numbers
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account numbers of specific assets, liabilities, accounts, credit
cards and PINs
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medical records
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family law proceedings, including dissolution, child support,
custody, visitation, adoption, domestic violence and paternity,
except final judgments and orders
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photographs of involuntary nudity and of victims and witnesses
involved in certain kinds of actions
-
obscene photographs and other materials
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termination of parental rights proceedings
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abuse and neglect proceedings
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names of minor children in certain types of actions
This approach of restricting access to specific data elements
across all case types places a burden on court clerks to identify
and redact these data elements from otherwise public court
documents before placing the documents on the Internet.
For example, a person’s Social Security number might be included
within the text of pleadings or exhibits, making redaction
difficult for clerks. However, technology can provide an answer
with data tagging, which is the topic of the next section of this
article.
Attorneys also voice another concern about court documents on the
Internet — they don’t want their work product so readily available
to other attorneys. Some also claim copyright infringement and
demand courts not post their documents. This is an issue that will
be interesting to watch as it more fully develops.
Data Tagging & XML. As courts attempt
to redact certain data elements from documents placed on the
Internet, and as they work to integrate electronic filing systems
with case management systems, they look to data tagging as a
solution. Data tagging is the concept of identifying certain data
elements when they appear in the text, heading, footer or any
other part of a document. If, upon creation of a document, certain
data can be electronically “tagged,” then other systems can
recognize and process the data according to defined business
rules.
In the future, I expect court rules will include detailed lists of
data items to be “tagged” upon creation of court documents. Under
each type of court rule and in connection with the various types
of filings, the rules or an exhibit to the rules will require
certain data be tagged or used only in certain documents. This
will be an additional burden for legal assistants, and will be an
important part of the filing process. Courts might even impose
sanctions for noncompliance.
So how will legal assistants tag the required data? Luckily,
software will help. If you have not yet heard the buzz about XML,
you will in the near future. XML is an acronym that stands for
Extensible Markup Language. It’s a language that allows data to be
defined and easily “tagged” within forms. Future e-filing software
for law firms will use XML and ultimately be programmed to help
legal assistants comply with court rule data lists. After a court
receives a document with data tags, it will pull certain data
directly into its case management system automatically and redact
the data elements not to be publicly accessible or available on
the Internet.
Future e-filing software using XML actually will submit documents
in XML and include an “envelope” concept. An electronic “envelope”
will collect all the documents, exhibits, filing data and
signature information to make a complete e-filing package.
Round the Clock Filing. One of the
most desired future features of court e-filing systems might be
the capability to file court documents 24 hours a day, seven days
a week. No more rushing to meet a 4:30 p.m. closing deadline —
courts will accept filings round-the-clock. Of course, date
stamping will remain important to comply with statutes of
limitation, but it’s just on the horizon that filings might occur
as late as 11:59 p.m.
While this might be desirable to many, some attorneys have
expressed concern that allowing later filings will cause attorneys
and their staff to work later hours to perfect their filings. Or
perhaps they will just procrastinate a little more. Either
scenario will surely result in more late hours at the office.
A humorous example of late-night filing is found in an order
recently issued by the United Stated District Court of the Western
District of Wisconsin. In the case of Hyperphrase v. Microsoft,
Order # 02-C-647-C allows a summary judgment motion filed
electronically by Microsoft at 12:04:27 a.m. (four minutes and 27
seconds after the midnight deadline), along with supporting
documents that trickled in as late as 1:11:15 a.m. The judge
remarked in his order, “I don’t know this personally because I was
home sleeping, but that’s what the court’s computer docketing
program says, so I’ll accept it as true.” He went on to conclude,
“Wounded though this court may be by Microsoft’s four minute and
27 second dereliction of duty, it will transcend the affront and
forgive the tardiness. Indeed, to demonstrate the even-handedness
of its magnanimity, the court will allow Hyperphrase on some
future occasion in this case to e-file a motion four minutes and
30 seconds late, with supporting documents to follow up to 72
minutes later.” The plaintiff’s motion to strike Microsoft’s
summary judgment motion due to its untimeliness was therefore
denied.
The Next Step
So now, how can you, the legal assistant, start using e-filing? I
think the answer is easy. If e-filing is available where you are,
learn all you can about it and dive right in. If it’s not
available to you yet, you still need to educate yourself and
become prepared for when it does arrive. As for what the future
holds for e-filing, all legal assistants should keep their eyes
and ears open so when the technology is mature and systems make
filing easier rather than harder — or when courts mandate e-filing
— legal assistants will be ready to meet the challenge. |
There are numerous
e-filing vendors offering various services to law firms and courts. The
following companies are a small sampling of the offerings available:
CX Corporation
www.cx2000.com
(336) 574-8339
CX Corporation offers a full range of case management, electronic filing
and an electronic Internet docketing system that automates the legal
process from the lawyer’s office, to the court, to public access.
E-Filing.com
www.e-filing.com
(805) 964-3535
E-Filing.com provides electronic filing systems based on Legal XML. It
provides Xforms that can be electronically submitted. Using Xforms,
E-Filing has provided child support, family law, collection and domestic
violence and small claims electronic filing systems to multiple courts.
LexisNexis File &
Serve
www.lexisnexis.com/
fileandserve
LexisNexis File & Serve (formerly CourtLink eFile) is an e-filing
solution for legal documents. LexisNexis File & Serve lets you transform
paper documents and hours of time-consuming retrieval into a single
online system bringing filing and service activity to your desktop.
Tybera Development
Group Inc.
www.tybera.com
(801) 226-2846
Tybera offers the advanced e-filing products and services known as eFlex/Courts
and eFlex/Legal, both of which provide the technology to create, send
and receive court documents securely.
Verilaw
Technologies Inc.
www.verilaw.com
(877) 837-4529
Verilaw offers complete Web-based e-filing solutions customized for an
individual court’s particular needs. The solution integrates with
existing case management systems. It also offers online docketing
services, making it easy for courts to put docket information on the Web
to reduce the burden on court staff. |
