Standing Committee on
Legal Technology
May 2002 Vol. 9, No. 3
Statements or expressions of opinion or comments appearing herein are those of the editors or contributors, and not necessarily those of the association or section.
Contents
* Scanning irreplaceable documents in case of disaster
By Pamela Perrone
In the last year, COLT has continued its mission with a focus on advising ISBA members on the implementation of technology in their law practices. In addition, committee members have continued to work on the challenging issue of electronic filing in courthouses across the state. Others have worked behind the scenes to answer technology questions for ISBA committees, and brought technology issues to the forefront at the ISBA "Future of the Courts" program this past spring.
Finally, without the dedicated (and unpaid!) work of many committee members, COLT would not have been able to continue our long tradition of high-quality, low-cost educational seminars, with this year's "Beyond the Basics" program. This exciting seminar is devoted to advanced legal applications of Microsoft Excel and Word. First held in Chicago last November, the next session is set for DuPage County on June 3rd. If you're in the neighborhood, sign up! It's sure to be a crowd pleaser, as always!
By Karen Evie Kalnins, J.D., ABA Legal Technology Resource Center, kalninsk@staff.abanet.org
I. Introduction
For some attorneys, filing court documents electronically brings to mind visions of complex technology that is hard to use and time-consuming to learn. On the contrary, most electronic filing systems are quite user-friendly, allowing an attorney to file electronically using technologies right on his or her desktop. This article will address some of the issues raised by electronic filing, describe the technologies courts and attorneys need for electronic filing, and discuss the status of electronic filing in the courts, including Illinois.
II. Electronic filing defined
Electronic filing can be defined as "creat[ing], transmitt[ing], stor[ing], and maintain[ing] [documents] in electronic form."1 In the Guidebook to Electronic Filing it is defined as "the process of transferring documents through an electronic medium rather than on paper." 2 Simply stated, electronic filing is a way to file your court documents that gives the clerk of court an electronic version of your document rather than a paper version. This means that when your filed documents reach the clerk's office, they are in an electronic format rather than a paper format.
Courts are considering electronic filing because handling and storing paper documents is expensive and time-consuming. According to a statistic released by a court in Shawnee, Kansas, the time for processing 100 documents went from 10 hours using conventional court filing, to nine minutes with electronic filing.3
Further, electronic filing was included in a 1998 American Bar Association Legal Data Interchange Resolution which "urges all such governmental entities to provide for electronic filing and retrieval of all appropriate documents through the Internet using open data interchange standards."4
III. Approaches to electronic filing
Courts vary in their approaches to setting up their electronic filing systems. Some courts develop their own individual electronic filing systems, others contract with vendors to design their systems, and some courts outsource their electronic filing to a specialized vendor.5
The advantages of a custom-designed system or something similar include control over the system, control over the information, and the ability to design a uniquely personal system for that particular court.6 This also means that the court does not need to rely on a vendor's system. On the downside, a court must have enough Information Systems staff and resources to devote to designing and implementing an electronic filing system.7 The court must also bear most of the financial burden in acquiring any necessary hardware or software.8
Courts that hire an outside vendor or consultant to analyze their needs have the benefit of a customized electronic filing system specifically tailored to suit those needs.9 A court may choose this option if it does not have sufficient Information Systems resources and staff. By hiring an outside vendor or consultant, the court has input and control into how the electronic filing system is designed without the financial or human investment required to implement it.
One court that chose this option is the Philadelphia Municipal Court, which chose Verilaw, an electronic filing vendor, to design their system.10 The Web-based electronic filing component integrates with the court's case and document management system, creating a seamless system that handles a case file from beginning to end.11 Instead of creating a paper file, an electronic file is started with the first filing and contains all of the information for that particular case.12
A third option is to use one vendor exclusively to handle all of the court's electronic filing. This solution spares the court system from having to make a huge financial investment in a new computer system, since the electronic filing is done exclusively through the vendor and the vendor's system. However, by using an outside vendor, the court does not maintain exclusive control over the system and information.
The state court system in Colorado is one example of a court that uses a vendor, Courtlink, for its electronic filing system. Other electronic filing vendors include Westfile, Verilaw, CXCorporation, E-Filing.com, and Counterclaim. In Colorado, when an attorney needs to file a pleading with a Colorado state court that has electronic filing, they file that pleading from Courtlink's Web site. This means that all of the information for that case is stored on Courtlink's system, not on the court's system.
IV. Electronic filing methods
The actual process for electronic filing may differ from court to court, and courts have a variety of methods to choose from. One method is to use the Internet and have attorneys simply attach the pleading as an attachment to an e-mail message. When the e-mail is sent, the attachment is received when the e-mail is received. But this method does not integrate with a court's case or document management system, thus requiring court personnel to manually enter the information into their case and document management system, if they have one.13
A second method for electronic filing is to have attorneys fill in a cover sheet or form on a Web site and attach their documents to that form.14 The completed form is then submitted along with the document. The court can even create a template that the attorney fills in and submits along with the pleading. Using this method, the court can verify that the attorney gives all the necessary information to the court by requiring completion of certain fields before accepting the filing.
Another alternative, which will likely be more widely used in the future, is the concept of submitting "intelligent documents" that are created using a document architecture called extensible markup language or XML.15 XML is very powerful because the language identifies what kind of data is contained on a page, not just the way the data looks on the page. Although some electronic court filing vendors are already using XML, there are no universal standards or document type definitions yet for XML as used in the legal profession.16
One group that is working towards developing such standards is the non-profit organization LegalXML, Inc.
V. Issues involved in electronic filing
Although filing and storing court documents electronically saves both attorneys and courts time and money, there are many difficult issues that courts need to resolve. This article will address the issues of security, privacy, and electronic signatures.
A. Security
Security is an important issue related to electronic filing because of the greater accessibility of court files over the Internet. Court files that are stored electronically reside on a computer network instead of being locked in a room at the clerk's office. As a result, they are susceptible to hackers, who may break into the private computer network and damage data. Attorneys, judges, and court personnel are concerned about the integrity of court files on the Internet for just that reason. However, if the proper precautions are taken, a court's network can be successfully secured.
The starting point of a court's security plan is an analysis of the court's network and Web site for security weaknesses.17
In order to secure their network, a court can set up firewalls, install encryption and anti-virus software, or even hire an outside vendor to protect its computer network. The critical point is that attorneys, judges, and court personnel trust and rely on the electronic filing system, and the technology that supports it.
B. Privacy
Privacy is another issue that courts need to consider when implementing electronic filing. Although court files are public records, they contain sensitive and personal information such as criminal charges, Social Security numbers, birth dates, and financial information. Recognizing the importance of ensuring that this type of highly sensitive information is not made available unintentionally, the federal courts recently adopted electronic filing guidelines that directly address the issue of privacy.18 Part of their newly-approved policy is to remove Social Security numbers, birth dates, and account numbers from bankruptcy and civil case files. Federal judges decided not to provide the public with access to criminal case files, but that matter will be re-addressed in two years when the U.S. Judicial Conference reevaluates its electronic filing policy.19
State courts have varied policies. For example, Vermont developed rules for accessing its court records that apply to both paper and electronic files. Under these rules, there are thirty-two (32) exemptions to an open records presumption.20
A judicial subcommittee in New Jersey issued a report in 1996, revised in 1998, that essentially allows electronic access to non-confidential court records.21 The revised report specifies the types of records and documents that are confidential. Maryland is one state that proposed limitations on public access to court files, but withdrew those proposals to further study the issue.22
C. Electronic Signatures
An electronic signature is an electronic form of authentication or way to demonstrate that the person filing the document is the person actually authorized to file that document. This is important because the court needs some way to verify an attorney's identity when he or she files a court document. Courts have taken different approaches to the authentication issue and have varying requirements. In some courts, once an attorney has registered and been assigned an identification code, that code serves as that attorney's signature. In other cases, attorneys actually put an image of their signature on the court document so that their signature is replicated on that document.
VI. Technologies needed by attorneys to file electronically
In order to file documents electronically, attorneys generally need a desktop or laptop computer, a word processing program, a Web browser, and an Internet connection.23 It is critical for the attorney to find out what document format the court requires. Depending upon the court, the document may need to be in ASCII text, Portable Document Format (PDF), an ordinary word processing document, or Rich Text Format (RTF). In the case of PDF documents, an attorney may have to install additional software such as Adobe Acrobat.
Federal courts are among those requiring pleadings be in PDF format. The PDF format is useful because once a document is converted into PDF and sent to the court, that document is difficult to alter. This ensures that the pagination and content will be correct. However, if an attorney does not have the specific software that the court requires, some electronic vendors, such as Courtlink, will convert the attorney's document into the acceptable format.24
VII. Technologies needed by courts for electronic filing
In addition to the hardware and software a court needs to implement an electronic filing system, case and document management systems are essential if courts want to get the most benefit from electronic filing. A case management system is software that allows for data entry, online docketing, forms processing, and scheduling.25 Some examples of vendors that offer this type of software are Maximus, Justice Systems, Inc. or Counterclaim. Generally, a court wants to ensure that whatever electronic filing system they implement integrates with their existing case management system.
Document management software organizes documents, making them searchable and easily retrievable-and thus providing court with a powerful way to organize and locate case files. A newly-filed case can automatically be organized within the document management system. With both case and document management software in place, an electronically filed case will automatically be entered, docketed, and organized within the court's system without having to use court personnel to manually complete those tasks.26
VIII. Benefits of electronic filing for attorneys
Although electronic filing has only been implemented in one jurisdiction in Illinois, it is worthwhile to understand some of the benefits of the process. One of the main benefits is saving time and resources. Within minutes, attorneys can file documents, verify that those documents were filed, obtain a receipt from the court, and ensure that notice is served upon all the parties. This saves copying time and costs, a trip to the courthouse, and the cost of serving notice and service of process.
Another benefit is accessibility. Attorneys can view the court file on-line anytime, day or night. This is especially crucial in document intensive cases or multi-party cases. Furthermore, in every case that provides attorneys greater access to court files, clients are better served. However, in order to take advantage of all of the benefits, attorneys must make certain that they understand and are trained in using the electronic filing system.
IX. Benefits of electronic filing for courts
There are many advantages for courts that implement and use electronic filing, including providing the public and attorneys greater access to court files, saving space, increasing efficiency, increasing accuracy, decreasing court personnel costs, and making the filing procedure less complicated.27 By keeping files in an electronic format on the Internet, those documents can be accessed by parties in the case, the attorneys, or pro se litigants. This type of access saves time because it eliminates the need to go to the courthouse every time an attorney or party wants a copy of a pleading or document from the court file. Courts save space because electronic documents can be stored on less bulky CD-Roms or network servers, whereas paper documents usually require a large storage area.
Court personnel can also work more efficiently with an electronic filing system in place. If the electronic filing system integrates with a court's case management and document management system, court personnel can eliminate time spent entering data, docketing cases, and file-stamping pleadings. The end result is that a court requires fewer personnel to process case files, and may retrain employees for use in other areas. A court can also increase operational accuracy by using electronic files, since there is less of a chance of losing or misplacing a court file.28
X. Courts that have electronic filing and some examples of their court rules
There are approximately twenty-five state courts that are actively using electronic filing or have an electronic filing pilot project. In the federal court system, there are about forty-one federal courts that are currently using electronic filing.
Depending upon the organization of a state's judicial system, financial resources and motivation, a state may implement electronic filing statewide or just in individual courts. A key to initiating electronic filing is amending the court rules to allow pleadings to be electronically filed. Among the states that have amended their court rules are Pennsylvania, Colorado, and Virginia. Pennsylvania's Supreme Court Rule 205.4(b) was amended to read that:
A party may file a legal paper with the Prothonotary by means of electronic filing if electronic filing is permitted by general rule, rule of court or specialorder of court. The filing shall be in the format of Adobe PDF, WordPerfect for Windows or Microsoft Word for Windows. Except as otherwise provided by law, a legal paper filed electronically shall be deemed the equivalent of the original document.29
The state of Colorado also extensively changed its court rules. The Colorado Rules of Civil Procedure now allow "for filing and service of pleadings, motions and other papers via the Internet through the Court-authorized service provider."30 In Virginia Supreme Court Rule 1:17, the state judiciary sets out the requirements for their electronic filing system, and enumerates other provisions that attorneys must comply with.31
XI. The Illinois Experience
Currently the only Illinois court that uses electronic filing is the U.S. Bankruptcy Court for the Southern District of Illinois. The lack of involvement in electronic filing among Illinois courts is due in part to the fact that the Illinois State Supreme Court Rules have not yet been amended to allow pleadings to be filed electronically in state courts. Although there is an amendment to Illinois State Supreme Court Rule 104 currently pending, the status of that amendment is uncertain.
On August 7, 1998, the Illinois Supreme Court issued an administrative order allowing electronic filing on an experimental basis in the Justice and Child Protection Department of Cook County Circuit Court. However, the Justice and Child Protection Program of the Circuit Court of Cook County has not yet established an electronic filing system.
XII. Conclusion
Electronic filing offers an innovative solution to lack of space, overloaded court dockets, and document-intensive cases. If a court plans ahead and takes proper precautions, electronic court files can be kept as secure as paper files. By using the available technology, attorneys, the public, and the courts can reap benefits from electronic filing.
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1. J. DOUGLAS WALKER, ELECTRONIC COURT DOCUMENTS 2-3 (1999).
2. See id. at 2-3.
3. See J. DOUGLAS WALKER, ELECTRONIC COURT DOCUMENTS 18-19 (1999); Electronic Court Filing, THE LITIGATOR (North Carolina Bar Association) June, 1999, at 9.
4. Legal Data Interchange Resolution, ABA Doc. 100 (August 3-4, 1998).
5. James E. McMillan, J. Douglas Walker, Lawrence P. Webster, A Guidebook for Electronic Filing (visited Sept. 28, 2001) <http://www.ncsc.dni.us/NCSC/TIS/TIS99/electr99/Guidebook/HTML/EfileWest.htm>.
6. Sharon Nelson & John W. Simek, The State of Paperless Courts, LAW OFFICE COMPUTING, August/September 2001, at 92-93.
7. See supra note 6.
8. See supra notes 5-6.
9. See supra notes 5.
10. See Honorable Robert S. Blasi, Philadelphia Municipal Court CLAIMS Project-The Electronic Court House 3-6 (2001) (unpublished conference paper, on file with author).
11. See supra note 10.
12. See supra note 10.
13. See J. DOUGLAS WALKER, ELECTRONIC COURT DOCUMENTS 45-50 (1999).
14. See supra note 13.
15. See J. DOUGLAS WALKER, ELECTRONIC COURT DOCUMENTS 35-45 (1999); What is the Best Format for E-CT-Filing? (visited Sept. 28, 2001) <http://law.gsu.edu/gsuecp/CourtFilings/DocumentFormat/DocumentFormatContents.htm>.
17. See Bradley Hillis, Internet Security and the Courts (visited Sept. 24, 2001) 1-4 <http://jurist.law.pitt.edu/courttech4.htm>.