E-Filing in the Courts

How would you, as a practitioner in court, like to see "no more running from the copier to the courthouse to file briefs at the last minute," and "no more anxious moments wondering if your filing was received"? On September 16, 1998, West Group and IBM promised these benefits through electronic filing of your court papers.

The two companies claim a "direct link from an attorney's desktop to the court's desktop." Their e-filing solution uses IBM Digital Library document management software to call up the paper; WestFile service to transmit the paper to the court electronically; VeriSign digital certificates to prove your identity to the court; and Systems & Computer Technology Corp.'s court management software to receive and store your paper in the court's files.

Other claimed benefits of their system include letting you view all filings and exhibits in the case, and tracking the judge's or even your opposing counsel's work product across cases. IBM Digital Library document management software claims integration with your office's case management and billing software.

On the same September 16 date, Martin Dean, Esquire, longtime friend of Sacramento's computer-using lawyers and founder of Essential Publishers, Inc., met with the Sacramento Lawyer Computer Users Group (SLUG) over lunch at the Delta King. Dean spoke about issues raised by the advent of electronic court filing, and about his own prototype e-filing software front end.

Carding the Filer

Dean first asked whether the court should insist on proof of the filer's identity. VeriSign or other authentication technology makes such proof possible, of course.

Dean described VeriSign's procedures. To be allowed to file anything electronically, you call West. A VeriSign representative visits your office, looks at each office member's driver's license, and gives each a secret code number. This means some expense and delay each time you get a new employee.

The concern for positive identification is that a prankster may send in phony default requests in real cases. Dean asked how often one should expect to encounter filings of that kind. In all of California's history, he said, he could find only one such phony filing, and that was an unsubstantiated story from Los Angeles. Assuming phony electronic filings do happen, existing civil and criminal remedies should keep them from being a problem, Dean said.

Signature

What about the legal requirement that a court paper be signed? Dean found a useful analogy in the rules for fax filing. When you file by fax, your faxed signature is a valid signature, provided you retain an original to show to anyone who asks to see it. The same kind of rule could work for e-filings.

File Shrinkage

What about the opposite concern, that someone may remove a filing? That happens to courts' paper files. Normal security measures should protect the electronic files against unauthorized removal.

One insurance company study found that at any given moment a company could locate only 86% of its paper documents. Brian Taugher pointed out, from his experience in litigation with a large bank, that a conversion from one system to another can ravage the stored information. In principle, barring a conversion or a crash, all the public electronically filed documents should be accessible electronically.

Money Matters

How to collect filing fees? An e-filing experiment by the Los Angeles probate court required a $500 no-interest cash deposit to cover fees. In three years there were only 300 electronic filings, so some better payment method is needed, Dean said.

What about using a credit card? State law forbids the courts from sharing filing fees with anyone, such as a credit card issuer, Dean said. When he asked the attendees how many would be willing to pay 2% extra to file electronically, none said no. Debit cards or newer forms of cybercash may be as convenient and require no surcharge.

Many practitioners have had the unfortunate experience of a filing refused because the fee check was made out in the wrong amount. In an e-filing transaction the court can specify the amount, making this mishap a thing of the past. (Similarly, the e-filer can query the court for a correct hearing date, and place the date in the paper, as part of the e-filing transaction.)

Which Format?

Although the Judicial Council dictates the formats for paper filings in California courts, the Judicial Council forms exist in many electronic formats. (One, of course, is Essential Forms version 3.0 for Windows, devised by Dean.) Which of these should the Court accept?

Dean's answer was "none of the above." Dean's e-filing front end uses Portable Document Format (".PDF"), Adobe's format for electronic document communication, for pleadings and their attached exhibits alike.

Some attendees criticized storing the stereotyped information of Judicial Council forms to PDF format because the form takes many thousands of characters of disk space per document, when plain text would use a few hundred characters at most. Dean responded that Judicial Council forms are not a constant. They change from year to year. They vary between unified and non-unified counties. Even the format of the user's text varies by the form software, because the better software (Essential Forms) lets you insert text anywhere on the page, in any size type.

Legacy Filings

SLUG member Jim Mize asked whether the courts should maintain paper files for future paper filings. The Los Angeles probate court has been scanning new paper filings for four years at a charge of $1 per page. Thus, while there will always be paper filings, the court's file storage can be all-electronic, Dean said.

Reference

Martin Dean, Esquire, Essential Publishers, Inc., 401 Francisco St., San Francisco 94133-1903, (800) 286-0111, fax (415) 986-2110

West Group, 610 Opperman Dr., Eagan, MN 55123, (800) 778-8090, fax (612) 687- 5388, www.westgroup.com