Filing court documents electronically.

Is using the Internet to file court documents the newest trend for the legal profession? Some say it may be.

Using the Internet to do everyday activities has become the way of the world. Now, lawyers in some areas of law can file documents with courts via the Internet, rather than submit reams of paper to overwhelmed court clerks.

Last summer, Colorado took the lead in becoming the first U.S. state to enable its civil courts to accept legal filings electronically in civil, probate, water, and domestic relations cases. By replacing the traditional method of filing and serving documents, Colorado hopes that e-filing will improve court and law firm efficiency.

Jim McMillan, director of the Court Technology Laboratory at the National Center for State Courts (NCSC) in Williamsburg, Virginia, meets regularly with court personnel to discuss the benefits of filing electronic documents. His Guidebook for Electronic Court Filing--which he wrote with J. Douglas Walker, acting director of technology at NCSC, and Lawrence Webster, director of Delaware's Administrative Office of the Courts--takes a look at e-filing rules for courts in various jurisdictions.

In this interview with TRIAL Associate Editor Jennifer L. Reichert, McMillan discusses the subject, from the nitty-gritty of filing electronically to the privacy concerns e-filing raises.

Do attorneys need any special technology to file electronically?

Most of the time, attorneys already have the equipment and software they need, assuming they are part of the 99 percent of lawyers who use a personal computer for word processing. They need a connection to the Internet, a browser program like Netscape or Microsoft Internet Explorer, and Adobe Acrobat. Acrobat is a pretty expensive program, but many e-filing vendors have worked out a deal with Adobe to lower the cost to lawyers. The software lets users convert documents created in any application and preserve the look--the fonts, the layout, the colors, and the images--of the original document.

What steps would an attorney take to file electronically, if the court accepts documents this way?

Just as in the "paper world," attorneys have to follow the rules set by the court. Some courts are using private services to assist them in providing an e-filing system, while others are providing the e-filing service themselves.

Almost all the current systems work the same way. Attorneys prepare documents and save them in Adobe Acrobat format on their computer. They then connect to the e-filing system via the Internet, log on, and enter information about the case, like the case number and the parties' names. The system then copies the documents from the attorneys' computers and displays receipts. It is very much like buying a book or music CD on the Internet.

What services are available online or otherwise to help attorneys file?

My organization, the National Center for State Courts, has an online list of vendors that provide e-filing services for courts available at http://www.ncsc.dni.us/ncsc/ vendor/excerpts/elecfil3.htm. However, links to these companies may or may not answer the questions that attorneys have about a particular court because service is fragmented. By fragmented, I mean that not all companies service all courts. I'd say the best source of information is the court's Web site.

E-filing is in its infancy, just as 100 years ago, telephones were. Remember, at that time, people had to go to their local store to make or receive telephone calls because telephones were not ubiquitous. Ubiquity is obviously desirable for e-filing, but at this time, it is not the reality.

How do costs for filing electronically compare to costs for filing on paper?

I think that costs for e-filing are actually lower than the costs for filing the traditional way. A couple of studies by Andersen Consulting in its e-filing pilot project in Prince Georges County, Maryland, and WestGroup have pegged the cost of paper filing at around $25 per document. This includes time and costs for printing, collating, addressing, mailing, and so on. But most attorneys don't recognize overhead costs like these because they are rarely looked at incrementally. It seems to me that attorneys look at these costs lumped together as personnel and supplies overhead. So when they see e-filing as trading a 33-cent stamp to mail documents for $5, $8, or even $12 to e-file, they think the cost is ridiculous. But it is an apples-to-oranges kind of argument.

How do attorneys benefit from filing court documents electronically?

There are three benefits. First, access to information. The entire case file is available via the Internet anytime, anywhere, to the attorney and, just as important, to his or her clients. In the Internet age, attorneys are expected to be as "online" as the people they represent.

A second benefit of e-filing is immediate notice. No longer can an attorney file something with the court and then, "because of mail problems," delay notice to opposing counsel.

Third, states other than California have expanded filing hours to give attorneys an extended deadline. Most e-filing due times are 11:59 p.m. California, unfortunately, decided to make the deadline for e-filing the same as that for paper filing--5 o'clock. To me, this is like the old law that required anyone driving an automobile to send a person ahead of the car to warn people with carriages that an auto was approaching so as not to scare the horses.

Computer usage is so widespread at this point that rules like this that purport to ensure "fairness" instead show that the practice of law is being held captive by Luddites. I think lawyers need to get on Internet time.

What are the benefits for the courts? For clients?

The court's benefits are, as my 15-year-old daughter would say, a no-brainer. File cabinets conservatively cost $1,200 a year to maintain if they store active cases. A clerk doesn't need to pull an electric file out of the cabinet and run it up to the courtroom or chambers.

Shawnee County District Court in Topeka, Kansas, did a study that showed it took nearly 9 hours to manually process 100 cases that took less than 9 minutes to process electronically. I hope that these cost and time savings will allow courts to redirect staff into other tasks that will provide better public service.

For clients, I think e-filing will also translate into better service. The online law firm can provide information 24 hours a day. This is becoming the expected way of doing business.

How can attorneys find out which courts accept electronic documents?

They have to contact the individual court. I estimate that there are only 40 to 50 courts actively receiving documents electronically at this time. And, usually, these courts accept electronic documents in only one type of case. For example, Philadelphia Municipal Court is piloting e-filing with collection cases. Again, this method is very much in its infancy.

Do e-filing rules differ from state to state? If so, how does this affect trial lawyers?

Like any court procedural rules, e-filing rules vary from state to state and may even vary within a state. What the NCSC is trying to do is standardize some of the automation tools that courts will probably use to implement e-filing.

Currently, the Conference of State Court Administrators/National Association for Court Management Joint Technology Committee is working to develop data standards using extensible markup language (XML) to create a "data envelope" that will allow databases at both the court and attorney's office to have all the information needed to validate, route, and store documents received via the Internet. It works just like paper envelopes but with more information. Go to http://www.legalxml.org for more on this.

Will a national system be established? What would be the advantages and disadvantages of standardization?

I hate to sound pessimistic, but I seriously doubt that a national system will ever emerge because e-filing will follow the legal system, which is broken into many different jurisdictions and courts. But I do think that if data communications standards are established, private e-filing and litigation support services will be developed that will do most of the e-filing work for attorneys.

Are you aware of any federal courts that accept documents electronically?

Federal courts are very much at the forefront of electronic filing. In particular, bankruptcy courts are adopting e-filing very quickly due to the volume and standardized nature of their workload. One of the earliest successful e-filing projects was undertaken by the U.S. District Court for the Northern District of Ohio for asbestos litigation. Its Internet site can be found at http://www.ohnd.uscourts.gov/.

How is time-stamping receipt acknowledgment done?

Most of the systems acknowledge receipt the same way a Web user might receive a receipt when buying something over the Internet. At this time, most systems aren't e-mail based. Attorneys are required to connect to a Web site and enter a user name and a password to validate their identity. The court or e-filing service then creates a secure connection between its computer and the attorney's computer. Then, the server keeps track of the documents submitted and produces receipts on the screen that the attorney can print. Some servers will also send e-mail acknowledgements.

What backup procedures are in place so filings are preserved if the system crashes?

Almost all serious Internet servers, including those the courts use, are built with redundant disk systems and considerable backup tape capability. With redundant disk systems, courts back up their entire systems once a day on tape. Basically, it is like making a photocopy of the entire file room every day.

What privacy or confidentiality concerns does e-filing raise?

This is the big question. In most states, court files are public files. The parties are simply protected because it is inconvenient for others to go to the courthouse to request the file. With the Internet, almost everything is available through search engines like AltaVista. One command to the magic genie, and information appears. So, potentially, anyone, anywhere in the world can look at very private information in a court file. This is obviously of great concern.

So, what data really need to be public and what data need to be made private? There are many smart people working on that issue right now. I wish I had the answer. Perhaps I will this time next year.

How is document integrity assured? In other words, could a Web surfer log on and make unauthorized changes?

The technology commonly used to address this concern is called PDF. This stands for portable document format, a technology developed by Adobe, Inc. This program basically replaces your printer and produces documents into a format that can't be easily altered. The e-filing system then reads the PDF document and, using a sophisticated mathematical calculation, creates a digital signature for it. If a single letter in the document is changed, a validation program will be able to detect it.

This is complex stuff, and documents are much more difficult to forge under this system than they were when all someone needed was a copy machine and some Liquid Paper.

What provisions are made for technical glitches? For example, what would happen if an attorney could not timely file documents electronically because he or she could not gain access to the court's Web site due to site problems?

Courts have contingency plans for paper filing. For example, if the power were to be disrupted for any amount of time due to a hurricane or a snowstorm, there are rules to extend time. These same rules have been applied to e-filing operations. No difference. If the power outage is isolated, say, at the attorney's office but not at the courthouse, courts have so far been fairly flexible.

Are further technological advances in the works for court record keeping?.

The XML technology that I mentioned has tremendous potential for organizing and presenting data. By presenting data in more useful and varied formats, depending on the needs of the user--judges, clients, the public--it will be possible for people to better understand information. For example, a pleading could be dynamically linked to an online database that would display the latest financial or even criminal history.

I am very excited about the possibilities. By breaking away from static information presentation, family court judges, for example, can be presented with the most up-to-date information on a particular person and their family situation. XML will provide tools so information stored in different databases can be linked together. This helps all levels of the justice system-law enforcement officers, plaintiff attorneys, prosecutors, defense counsel, judges, and probation officers--make good decisions.