Inside

From the Chair

E-xciting! E-filing comes to Madison County

E-filing pilot in Cook County—An overview

Bloggers beware

Using your BlackBerry in higher gear—from 0 to 60 in four simple steps

Upcoming CLE programs

From the Chair

By Bryan Sims

In this issue of the newsletter we have two articles that talk about the e-filing initiatives in Cook and Madison Counties. In the July issue of the Illinois Bar Journal, several members of our committee had an article published about the current state of e-filing in Illinois.

This focus on e-filing is not accidental. As a committee, one of our main areas of focus, both last year and this year, is doing what we can to help all of those involved in the court system ensure that a quality e-filing system gets adopted throughout the state and to educate practitioners about the systems that are in place.

Over the last year or so, I have had the opportunity to use the e-filing system in DuPage County. There is a lot to like about the system that DuPage County uses, including the fact that an attorney can use it without any costs other than the applicable filing fees. Sure, there are some additional features that I would like to see, such as the ability of the system to serve opposing counsel copies of the filed documents. Nevertheless, I think it is a big step in the right direction.

I believe it is great that e-filing has expanded to Cook and Madison Counties. I have concerns about the fact that attorneys must pay an additional fee to use the system. I think imposing transaction fees impedes the adoption of e-filing by attorneys. However, I am eagerly awaiting to see how those systems are used and adopted.

If you practice in a court where e-filing has been implemented, I urge you to try the system and see how it works. If you don’t mind, I would also like to hear from you about your experiences, both good and bad. What do you like about the e-filing systems you have used? What do you dislike? What features would you like to see? What changes would you like to see made?

Please send me your e-filing thoughts at bsims@trwlawyers.com. I am looking forward to hearing from you. ■

E-xciting! E-filing comes to Madison County

By Judge Barbara Crowder

“E-nough already,” was the sentiment expressed by the Circuit Clerk’s office about the volume of paper it needed to process and store. Nearly 1,500 new Law Division civil cases seeking more than $50,000 were filed in Madison County last year. In addition, 639 new asbestos cases were filed in 2008. Each asbestos file can take up four feet of shelf space according to the Circuit Clerk’s office. Seeking a solution to both the storage issue and the amount of time clerks devoted to input and scan the pleadings into the automated case management system, Circuit Clerk Matt Melucci and Chief Judge Ann Callis teamed together to file an application with the Illinois Supreme Court to allow Madison County to become a pilot project for electronic filing (e-filing) of Law and Arbitration cases. Thanks to the approval of the Supreme Court, on April 6th Madison County became the second County in Illinois to have e-filing; DuPage County had already received approval and started its system.

Eligibility

Once the Supreme Court approved the request to allow e-filing for two years (or longer if they allow it), local court rules were adopted. Asbestos cases, all other Law Division cases (over $50,000) and Arbitration cases ($10,000 to $50,000) are eligible for the electronic filing program. The rules are available in their entirety at <www.co.madison.il.us> by clicking on “circuit clerk” and “local court rules.”

Appellate and post-judgment enforcement proceedings cannot be e-filed even if they are filed in an otherwise eligible proceeding; they must be filed and served as paper documents.

Court Process

A plaintiff filing an eligible case can simply file the complaint electronically to start its participation in the project. The second way a case may become part of the e-filing docket is by a defendant filing an electronic answer to a paper-filed complaint. The final way for an Asbestos, L or AR case to join the e-filing roster is for all of the parties to stipulate by written agreement to shift an already pending “paper” case to the e-filing program. Where the existing file is to be included, the clerk will duplicate the entire physical file electronically and include it in the system.

Attorney Process

An attorney must sign a consent form to participate in e-filing and submit their documents through LexisNexis File & Serve which charges $7 per transaction cost. Multiple documents may be filed in the same case at the same time for that one cost. For an $8 fee, counsel can have e-delivery of documents. Attorneys have four choices for delivery of their e-filed pleadings: 1) File with the Court and send to opposing counsel; 2) File only (counsel must then do the notice of filing and proof of service on opponents); 3) Serve only-private (documents are sent to the attorneys selected but not filed with the court and only the sending firm and those selected can view these documents); and 4) Serve only-public (documents are sent to the attorneys selected and not to the court but anyone with access privileges may view the documents sent). Normal filing fees also apply.

The Consent form for E-filing states: “I consent to e-filing on all pending and future cases on which I have entered or will enter as counsel at the Third Judicial Circuit Court, Madison County, Illinois. I understand that by consenting hereto, I am not required to e-file, but rather the effect of this consent is to permit a party to a case on which I am entered to e-file pleadings.” Once this statement is signed and an Illinois ARDC number is supplied to the Clerk, the e-filing may begin.

Whether this pilot program for e-filing becomes the way for attorneys to save time and money on postage and delivery services and also allows for the Circuit Clerk to better serve the public with less delay for scanning are questions the Third Judicial Circuit is waiting to answer. The Court and Circuit Clerk will have to “e-valuate” the success of this program and decide whether to seek to make it permanent as is or to modify it. In the interim, all parties in civil Law Division or AR Division cases are welcome to e-xperiment with e-filing in Madison County. ■

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This article originally appeared in the July 2009 issue of the ISBA’s Bench & Bar newsletter, Vol. 40, No. 1.

E-filing pilot in Cook County—An overview

By John Chatz, Chief Deputy Clerk, Executive Office – E-Filing Project Director

On May 11, 2009, the Circuit Court of Cook County took an historic step on several levels. By implementing Cook County’s first electronic filing pilot project, the Honorable Dorothy Brown, Clerk of the Circuit Court of Cook County, facilitated a “green” courts initiative, advanced efficiencies for attorneys and self-represented litigants, and put in place what may be the largest integrated electronic filing system in the United States. The Clerk’s Office has now allowed attorneys to be on-line instead of in-line—a prospect that may have appeared to be a pipedream in 2000 when Clerk Brown took office, but which is now a reality. As a result, other jurisdictions in Illinois, and around the country, can use the Cook County E-Filing pilot as a blueprint as they address their electronic filing needs and develop their project plans.

Upon the execution and entry of a General Administrative Order on May 8, 2009 (General Administrative Order 2009-01, “the GAO”), Chief Judge Timothy C. Evans made it official—E-Filing has come to the Circuit Court of Cook County. Cases in the Commercial Litigation section of the Law Division can now be initiated electronically and any subsequent filings can be submitted electronically as well. In an Order entered on May 1, 2009, the Illinois Supreme Court approved the Clerk’s Office’s pilot E-Filing project for a period of two years, through May 3, 2011. (In re Electronic Filing Pilot Project Circuit Court of Cook County, M.R. 18368, May 1, 2009.)

The GAO provides a guideline for attorneys and other users of the E-Filing system as to what can be filed, what the procedures and business rules for filing are, and what important privacy and other rules are applicable to the system. Of course, there is far more to this new implementation than that which can be contained in a court order.

In 2007, Clerk Dorothy Brown and Presiding Judge Timothy C. Evans, jointly submitted to the Illinois Supreme Court, through the Director of the Administrative Office of the Illinois Courts, their Amended Application for Approval of an Electronic Filing Pilot Project for the Circuit Court of Cook County, Illinois (the “Amended Application”). This 32-page document outlined the scope of the E-Filing pilot project, the technical specifications, as well as certain obligations and responsibilities that the Clerk’s Office was willing to accept in order to ensure an efficient, accurate and comprehensive system.

The development of the Amended Application and the concept of the E-Filing pilot project began several years prior to 2007 and went through a number of incarnations. Clerk Brown began developing the concept for electronic filing in Cook County shortly after taking office in December 2000. She formed an internal committee that was charged with the task of developing a proposal to present to the Illinois Supreme Court Rules Committee and to work with the Cook County Circuit Court Chief Judge’s Office to formulate a plan for bringing E-Filing to Cook County.

Once the Amended Application was approved by the AOIC, the real work began—developing a system that was user-friendly, accurate, integrated with the existing case management system, thorough, and secure. In addition, planning had to include provisions for training staff, attorneys, judges, and other court personnel, publicizing the implementation, ensuring “buy-in” by the users of the system, working with the Chief Judge’s Office on the finalization of the GAO, addressing the unique needs of commercial litigation practice in Cook County, and ensuring equal access to justice for all participants in the legal system, represented or not.

Both the E-Filing and the CourtPlus case management systems were developed in a partnership between the Clerk’s Office and On-Line Information Services, Inc. (“OLIS”) d/b/a USCourts.com which is headquartered in Mobile, Alabama. The Clerk’s Office assumed a project management role with OLIS and designated one project manager focused in the technology area and one project manager focused on business operations. Together with the OLIS project manager, the Clerk’s Project Management Office created a Core Team that met on a weekly basis, an executive Steering Committee that met every two weeks, a task list, and, later, oversaw the system walk-through meetings that were conducted within the six weeks prior to implementation.

The Core Team included a representative from each of the project team’s “workstreams” consisting of teams in business processes, legal, auditing, training, finance and accounting, systems integration, infrastructure, and public information. It was the responsibility of the chair of each workstream to report to the Core Team during the weekly meeting and to the Executive Steering Committee at the bi-weekly meetings through a format established by the project management team. This reporting, coupled with regular updates of the Action Item lists ensured that issues were being discussed by all the participants who provided input from their various perspectives and that those issues were, in fact, being addressed. Essential to this process was the participation of the OLIS project manager who was given office space in the Clerk’s MIS Department and the OLIS chief programmer, both of whom participated in all Core Team and Executive Steering Committee meetings via conference call.

In addition to the internal committees, Clerk Brown established an Advisory Committee on E-Filing that met regularly to review the system, test its processes, and provide input to Clerk Brown and her project management team. The Advisory Committee was comprised of attorneys, law firm docket professionals, and other professionals representing constituents in the Cook County judicial system. The Advisory Committee was an essential ingredient to the successful development of the E-Filing pilot by virtue of the members’ hands-on knowledge of commercial litigation practice in Cook County and the intricacies of filing cases and obtaining case information in the Law Division.

As the Clerk’s Office and OLIS were developing the system, several issues became paramount to a successful pilot. Those included security, attorney registration, system availability, and ease of use.

From a security and technology standpoint, the entire E-Filing system complies with generally accepted security protocols, including the use of HTTP and secure socket layer (SSL). The E-Filing Web site is hosted by OLIS and communicates with Cook County servers exclusively over an IPsec virtual private network connection with encryption. OLIS maintains a hardened hosting facility which includes limited access by authorized personnel, redundant fiber network providers, and standby generator power. The entire Web site is operated under a SSL certificate and can only be accessed using a secure browser connection. All credit card information is stored encrypted using industry standard 256 byte technology.

In order to register and use the E-Filing system as an attorney, that attorney must be in good standing with the Illinois Attorney Registration and Disciplinary Commission (the “ARDC”).1 The Clerk’s Office worked with the ARDC to ensure the most accurate and current information would be available when an attorney sought to register. To that end, the ARDC agreed to provide the Clerk’s Office with electronic daily updates of the status of attorneys in Illinois. This information had not previously been provided to the Clerk’s Office with such frequency.

An attorney or self-represented litigant can access the E-Filing system 24 hours a day, seven days a week. Pursuant to guidelines established by the AOIC, E-Filed pleadings received by the Clerk’s Office within its normal business hours of 8:30 a.m. to 4:30 p.m. would receive a “filed” stamp for that business day. If pleadings are E-Filed and received by the Clerk’s Office outside of its normal business hours, those pleadings will receive a “filed” stamp indicating the filing date as the next business day at 8:30 a.m.

Ease of use of the system was extremely important to Clerk Brown and, similarly, to those who attended training classes, those who attended the Clerk’s kick-off presentation on March 23, 2009 and to the members of the Advisory Committee. To ensure a system that was not cumbersome, slow, or inefficient, the Clerk’s Office engaged in and documented over 800 User Application Tests (“UATs”). The UATs were conducted by the workstream members and were documented by their chairpersons. In addition, during the six weeks prior to implementation, the Clerk’s Office’s project management staff directed four comprehensive walk-throughs of the E-Filing system, the last one taking place on May 4, 2009—one week prior to implementation.

Of course there were a significant number of other issues that were addressed, tested, fixed, reviewed, re-tested and revised during the course of this project. However, the Clerk’s Office and its project management team created a successful implementation of the E-Filing pilot by utilizing a consistent method of system review and testing throughout. It became critical for every issue to be addressed in the same manner so that nothing fell through the cracks and so that all procedures, methods, policies, and accomplishments could be tracked and documented.

As the E-Filing pilot moves forward, the Clerk’s Office intends to roll out the balance of the Law Division and, subsequently, the other civil divisions in Cook County until it is possible for all case types to be included within the E-Filing system. ■

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1. Self-represented litigants (“pro se “) are also able and are encouraged to register as E-Filers.

This article originally appeared in the July 2009 issue of the ISBA’s Bench & Bar newsletter, Vol. 40, No. 1.

Bloggers beware

By Adam Snukal

The Federal Trade Commission (“FTC”) is in the process of revising its Endorsement and Testimonial Policies and Guidelines—the first set of revisions since 1980. In addition to compelling greater disclosure and substantiation on advertisers that wish to employ endorsements and testimonials in their advertising, the FTC has cast its net to include blogs, message boards and street teams among those parties that would be subject to these new enactments. The purpose of this article is to address the effect such guidelines will have on blogs.

By way of introduction, endorsements refer to any advertising message (including verbal statements, demonstrations or depictions of the name, signature, likeness or any other identifying personal characteristic of an individual or the name/seal of an organization) that consumers are likely to believe reflects the opinions, findings or experience of an independent party other than the advertiser about a particular product. The FTC has expressed its intention to treat endorsements and testimonials identically in the context of its review and enforcement activities.

Generally speaking, endorsements: (i) must reflect the honest opinions, findings, beliefs or experiences of the endorser, (ii) may not convey an express or implied representation that would be deceptive if made by the actual advertiser, (iii) may not be presented out of context or worded so as to distort in any way the endorser’s opinion or experience with the advertised product, and (iv) may only be communicated by endorsers who are bona fide users of the product at the time of the endorsement, and the endorsement may continue to run so long as the advertiser has good reason to believe that the endorser remains a bona fide user of the product. From a liability perspective, both advertisers and endorsers alike can be held liable on the basis of false or unsubstantiated statements made through endorsements.

Although liability from false endorsements can arise from several different scenarios within the context of blogs, the two most common developments are likely the following: (i) blogger reviews, and (ii) undisclosed payments made by advertisers to bloggers. In the first scenario, bloggers are continually on a mission to find new content about which to write, and advertisers are constantly seeking innovative and organic means by which to disseminate their messages. For a blogger to write a review about a particular product on his/her blog, the blogger will be deemed an “endorser” by the FTC. Therefore, should the blogger fail to verify (or request verification of) an advertiser’s substantiation with respect to any product claims, the advertiser can be subject to liability for false and unsubstantiated statements made through the blogger’s endorsement, and the blogger may also be subject to liability for the same unsubstantiated representations (intentional or unintentional) made in the course of his/her review (aka, endorsement).

The second potential pitfall involves a blogger’s failure to clearly and conspicuously disclose any payments (in cash or goods) that he/she receives from an advertiser. Especially in those situations in which a blogger is neither an expert nor is known to a significant portion of the viewing public / readership but receives some form of payment from the advertiser, this fact must be disclosed to the public. The FTC’s reasoning behind this disclosure requirement should be fairly obvious—receipt of consideration by the blogger will likely have a material effect on the credibility which the public ascribes to the endorsement. As mentioned above, the payment / consideration can take the form of cash, free or discounted goods (even for testing purposes), gift certificates, or even advertising revenues on the blog, itself

So, what is an advertiser to do that wants to enlist the services of bloggers? The answer is training and monitoring. Advertisers must provide their bloggers with training on the do’s and don’ts of endorsements and claims, making sure that each claim is truthful and substantiated. For those bloggers who are regularly receiving consideration in some form or another, advertisers must closely monitor their blogs and have clearly defined policies in place which set forth the steps by which deceptive advertising must be halted and immediately taken down, when discovered. Lastly and particularly for bloggers who are receiving payment in some form or another, advertisers should consider developing a reasonably simple but focused set of terms and conditions and/or an actual agreement / insertion order that lays out the obligations of the blogger, and the risk allocations should a problem arise.

…and to the bloggers, one approach to address the payment disclosure requirement is to bifurcate sections of his/her blog between a paid advertising area and an editorial (i.e., non-paid advertising) area. So long as a user knows at all times in which of the two “areas” he/she is situated, a blogger (and advertiser, by extension) can get some level of comfort that his/her disclosure requirements have been satisfied. The objective, simply put, is to convey transparency to the consumer. This point was recently encapsulated by Jory Des Jardins, Co-Founder of BlogHer: “It’s time to look at the finer distinctions between compensated programs that have emerged as social media enters awkward adolescence. To us, the question is not whether anyone should ever compensate bloggers, it’s under what circumstances should you compensate them? And if you do compensate them, what are your obligations, and theirs?”

Another sign that times are seemingly changing for blogs may be the fact that bloggers can now purchase insurance coverage that is specifically designed to protect them against blog-related suits, ranging from libel, to copyright infringement claims to invasion of privacy lawsuits. Moreover, depending on the nature and industry focus of the blog, premiums can vary. For example, bloggers that cover local government or the pharmaceutical industry would pay higher rates than those which are focused on fashion and celebrities. Some insurance carriers will even drop premiums for those bloggers that agree to attend media training courses. If this kind of coverage seems either unnecessary or unlikely to be needed considering the nature of blogs, Robert, Cox, President of the Media Bloggers Associations, remarks: “Because of Google and other software out there, if a blogger thinks they’re a needle in a haystack, they should realize that the plaintiffs have big magnets.”

While the FTC isn’t expected to roll out its new Endorsement and Testimonial Policies until later this summer, advertisers and bloggers must start to think about these issues and put policies, procedures and documents into effect that address them. Consult your local advertising and marketing attorney for further assistance. ■

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This article originally appeared in the July 2009 issue of the ISBA’s Corporate Lawyer newsletter, Vol. 47, No. 1.

Using your BlackBerry in higher gear—from 0 to 60 in four simple steps

By Shamla Naidoo

You probably know somebody that uses a BlackBerry© Smartphone, those useful little devices that have changed our relationship with e-mail forever. These days, few lawyers could survive without one.

Most people don’t use the BlackBerry to its fullest potential, or exert too much effort to complete simple tasks, because few people have time to learn all of the capabilities built into these devices, and to learn which ones meet their personal needs most effectively. I have some tips on how I use my BlackBerry more effectively which I hope will be helpful to you too.

When the BlackBerry was introduced, it was a “game-changer.” The most basic blackberry functionality, always-on e-mail on-the-go, was a life-altering experience. Over-the-air synchronized calendar and scheduling revolutionized the age-old Daytimer.

But nothing in life is free--together with the benefits of the BlackBerry came challenges, including learning to use a tiny keyboard, and a scroll-wheel or thumb-based trackball. As I used my BlackBerry with increasing frequency, my sometimes-overly considerate husband began to lecture me on the potential for repetitive strain injuries, and to exhort me to “step away from the BlackBerry!” After calculating the average number of keystrokes that I typed on my blackberry each day, he began to look for ways to help me maximize the expected lifespan of my hands by minimizing the keystrokes necessary to accomplish my daily tasks. He introduced me to “blackberry shortcuts.”*

However, the shortcuts are disabled on your BlackBerry when you receive it. To enable the shortcuts, you need to turn off the “Dial From Home Screen” feature. This feature lets you dial a phone number without having to change to the phone dial screen, which may save time for people who use the BlackBerry primarily as a phone, rather than an e-mail device, calendar, and Personal Information Manager (PIM). If you disable the “Dial From Home Screen” feature, you will have to switch to the phone dial screen before manually dialing a phone number (you can still automatically dial a number from your Contacts). Disabling this feature has the added benefit of reducing the number of times you accidentally dial a client when you forget to lock your phone. However finding instructions to disable this feature without knowing the setting exists and where can be difficult, like trying to figure out how to spell a word by looking it up in a dictionary—where to start looking?

To disable the “Dial From Home Screen” feature, follow these instructions:

(1) Log into your BlackBerry.

(2) Press the “Hangup” button (looks like a red phone) to go to your Home Screen.

(3) Press the “Dial” button (looks like a green phone) to go to your Phone application.

(4) Press the BlackBerry menu button (looks like the BlackBerry logo), and then select “Options.”

(5) Select “General Options,” and scroll down to the “Dial From Home Screen” option, and select “No.”

Congratulations! You’ve disabled the “Dial From Home Screen” feature on your BlackBerry! You can now access shortcuts built into the BlackBerry, giving you near-instant access to its handy applications. From the Home Screen, you can access the following applications with a single keystroke:

• Messages

• CaLendar

• Address Book

• Tasks

• NotepaD

• CalcUlator

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* I have used these shortcuts on a variety of BlackBerry models with a full keyboard.

Upcoming CLE programs

To register, go to www.isba.org/cle or call the ISBA registrar at 800-252-8908 or 217-525-1760.

November 2009

Tuesday, 11/03/09 – Bloomington, Doubletree Hotel—Real Estate Law Update for the Experienced Practitioner – Fall 2009. Presented by the ISBA Real Estate Law Section.

Wednesday, 11/04/09 – Webcast—Corporate Legal Ethics. Presented by the Illinois State Bar Association.

Thursday, 11/05/09 – Chicago, ISBA Regional Office—The Mediation Process and Child-related Disputes. Presented by the ISBA Child Law Section, Co-sponsored by the ISBA Family Law Section and by the ISBA Alternative Dispute Resolution Section.

Monday - Friday, 11/09/09 - 11/13/09 – Grafton, Pere Marquette Lodge and Conference Center—40 hour Mediation/Arbitration Training. Master Series Presented by the Illinois State Bar Association and the ISBA Alternative Dispute Resolution Section. 8:30-5:45 each day.

Wednesday, 11/11/09 – Webcast—Illinois New Rules of Professional Conduct. Presented by the Illinois State Bar Association. 12-1.

Thursday, 11/12/09 – Webinar—Advanced Research on FastCase. Presented by the Illinois State Bar Association. *An exclusive member benefit provided by ISBA and ISBA Mutual. Register at: <https://www1.gotomeeting.com/register/938410456>. 12-1.

Friday, 11/13/09 – Chicago, ISBA Regional Office—Insurance Law Update 2009. Presented by the ISBA Civil Practice and Procedure Section and the ISBA Insurance Law Section.

Friday, 11/20/09 – Carbondale, Southern Illinois University School of Law—Illinois New Rules of Professional Conduct. Presented by the Illinois State Bar Association, co- sponsored by SIU school of Law.

Friday, 11/20/09 – Chicago, Northwestern Law School—Avenues to Advancement – Ms. JD’s Third Annual Conference on Women in Law. Presented by the ABA commission on Women in the Profession, co – sponsored by the ISBA Standing Committee on Women and the Law, National Association of Women Lawyers, and the Chicago Bar Association.

Wednesday, 11/25/09 – Webcast—Illinois New Rules of Professional Conduct. Presented by the Illinois State Bar Association. 12-1.

December 2009

Wednesday, 12/02/09 – Webcast—Illinois New Rules of Professional Conduct. Presented by the Illinois State Bar Association. 12-1.

Thursday, 12/03/09 – Webcast—Divorce Basics for Pro Bono Attorneys - 2009. Presented by the Illinois State Bar Association. <https://isba.fastcle.com/store/seminar/seminar.php?seminar=2670>.

Thursday, 12/10/09 – Chicago, ARDC Office—What the Government Lawyer Needs to Know about the 2010 Illinois Rules of Professional Conduct. Presented by the ISBA Standing Committee Government Lawyers. 10-12. 50-75 max.

Thursday - Friday, 12/10/2009 – 12/11/2009 – Chicago, Sheraton Hotel—Winter CLE Fest. Presented by the Illinois State Bar Association.

Wednesday, 12/16/09 – Webcast—Illinois New Rules of Professional Conduct. Presented by the Illinois State Bar Association. 12-1.

Thursday, 12/17/09 – Webinar—Conducting Legal Research on Fastcase. Presented by the Illinois State Bar Association. *An exclusive member benefit provided by ISBA and ISBA Mutual. Register at: <https://www1.gotomeeting.com/register/265808616>. 12-1.