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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:

  • the official court record
  • technical requirements (Web browsers and XML)
  • identification of the sender
  • integrity of transmitted and filed documents and data
  • court control over documents
  • 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
  • eliminating unnecessary paper processes
  • archiving electronic documents

The functional standards address:

  • document integrity
  • system security
  • signatures and authentication
  • case/document confidentiality
  • acceptance and rejection of filings
  • user and service registration
  • court payments
  • submission of all filings
  • case opening filings and subsequent case filings
  • service and notice
  • judicial consideration of drafts
  • clerk review
  • court initiated filings
  • requests for and responses to requests for case information
  • 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:

  • address, phone and other contact information for victims and witnesses in criminal, domestic violence, stalking, sexual assault and civil protection order cases/proceedings
  • Social Security numbers
  • account numbers of specific assets, liabilities, accounts, credit cards and PINs
  • medical records
  • family law proceedings, including dissolution, child support, custody, visitation, adoption, domestic violence and paternity, except final judgments and orders
  • photographs of involuntary nudity and of victims and witnesses involved in certain kinds of actions
  • obscene photographs and other materials
  • termination of parental rights proceedings
  • abuse and neglect proceedings
  • 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
(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.

(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
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.
(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.
(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.

Susan Jennen Larson is an attorney and technologist. She has an undergraduate degree in computer science and focuses her practice on information law and consulting. She is the editor-in-chief of the e-Filing Report, published monthly by Glasser Legal Works, and is a partner in the firm of Boos, Grajczyk, & Larson, in Milbank S.D. Although she practices in a rural area, she uses technology to service clients throughout the United States.

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