VirtualCourthouse ; Issue 6.6
Overcoming Barriers to Electroninc Filing
Judge Arthur M. Monty Ahalt (Ret.) September 2001
Usually the initial reaction to electronic filing of court documents is positive – “of course we should start an electronic filing project – it is the Information Age after all”. But then enthusiasm turns to caution when the details are considered. The details often reveal so many potential barriers that the process seems overwhelming and often early momentum turns to an agonizingly slow process. However, as the pioneer’s venture into the unknown, barriers are overcome, lessons are learned, and progress occurs. As new courts are added to those that accept electronically filed pleadings over the Internet some patterns have developed which are demonstrating that the barriers to electronic filing can be successfully overcome. Here is how the common barriers have been overcome in some courts.
RESISTENCE TO CHANGE
The number one barrier is resistance to change. Changing the way we do things is at the very least an uncomfortable topic. It is uncomfortable and threatening largely due to the unknown. Change, however,is also the engine that allows for better performance for less money — it permits doing more with less. How important are the dynamics of change to a successful technology? Unless a court has the tools and equipment to successfully manage change, successful electronic filing will be difficult to obtain.
It is important to recognize that there is a dynamic known as change. Change enables the transition from paper to technology. This dynamic, the dynamic of change, accounts for change-related stress, resistance to change and performance response to change. Whenever new technology is introduced into the workplace, it should be expected that there would be an initial downturn in attitudes and productivity. The key is to minimize the downturns. This is accomplished through leadership, sponsorship and involving the stakeholders in the process of designing and implementing the change. It is essential to change the environment from resistance to commitment.
The number one ingredient for managing change is Judicial Leadership. If a Judge becomes a champion of change the rest of the courthouse community and the bar association will follow. Let’s examine some examples of Judicial Champions of Change who have motivated and led successful electronic filing projects.
Jefferson County, Texas. In 1995 Judge Jim Mehaffy, became one of the first state court trial judges to accept pleadings electronically – a bold act of leadership in 1995. Judge Mehaffy describes the experience “ like the fellow who swallowed the first oyster”.
Montgomery County, Texas. Judge Fred Edwards became the first judge to mandate electronic filing for the court’s entire docket. This was an act, which met with much resistance from the bar, but has proved to be efficient not only for the bar but also the court. Judge Edwards became a leader by being willing to take risk to solve problems and by being proactive with the bar. Now other judges in Montgomery County are following the example.
Fulton County (Atlanta), Georgia. Judge Henry Newkirk, of the State Court, was faced with an insurmountable asbestos docket and enlisted the input of the bar, which agreed to an electronic filing project. He received complete support from Chief Judge Albert Thompson and technology committee Chair, Judge Gino Brogdon. Because of the success of the project Superior Court Judge Philip Etheredge soon joined him
San Diego, California. Judge Ronald Prager changed the way the voluminous paper in tobacco cases was overwhelming the bar and clerk by mandating electronic filing.
San Francisco, California. Judge Stuart Pollack sought a better way to deal with the overwhelming paper from complex litigation and became an advocate of electronic filing by adopting a project in 1999.
Colorado. The Colorado Supreme Court saw electronic filing as a leadership issue and Chief Justice Mary Mullarkey and Justice Alex Martinez established the first statewide electronic filing project. The Judicial conference supported the Supreme Court through its strong technology committee, led by Judge William West.
Washington, D.C. Judge Herbert Dixon, Superior Court, led the way aided by Chief Judge Rufus King and Judge Brooke Hedge, who chairs the Technology Committee. Judge Dixon in particular eased the nervousness of clerks and lawyers by assuring them that they would have input in the project. Judge Dixon said, “We believe e-filing will become a normal, typical and regular part of litigation in the near future. I firmly believe there will be e-filing on a substantial basis in future years.”
Duval County (Jacksonville), Florida. Chief Judge Donald Moran became the first Judge to order electronic filing in Florida. Being the first required a willingness to take risk, but the acting on the conviction that there had to be a better way.
Baltimore, Maryland, Chief Administrative Judge Ellen Heller led the way and was aided by Judge William Quarles and Judge Richard Rombro. Judge Heller said, “Now, we will be able to put order in the voluminous paper associated with the filings. There is too much paper associated with the law, and this is the first step in bringing that under control.” The manual filing of cases is “antiquated, absurd and an anachronism”, according to Judge Heller.
RESOLVE is the one common characteristic of these champions of change. Each Judge knew there would be obstacles to overcome yet they faced a broken way of doing business in their court, which needed to be dramatically improved for the publics benefit.
“How will the court authenticate a pleading?”, the clerks, court administrators and lawyers cried. While it is impossible to design a paper filing system or an electronic filing system that will be 100% effective in preventing fraud, both the paper process and the electronic process of filing court pleadings provide reasonable assurance of accuracy and authenticity. Well-identified methodology of ascertaining fraud exists. The many courts that have conducted electronic filing provide substantial evidence that the authenticity of the identity of the creator and signer of an electronically filed document exceed those in the paper process.
CARE, CUSTODY AND CONTROL OF RECORDS
Does the Clerk lose care custody and control of electronic records? Meeting Constitutional and legal requirements is a legitimate issue when court managers and clerks consider an electronic filing project. Many courts are successfully meeting record keeping requirements by maintaining multiple and redundant electronic copies of the pleadings. One file is kept on the premises of the court as an archival file while another copy is maintained in a commercially superior fashion to allow the court, the parties and the public have fast, efficient and secure access to a “use” copy. Colorado has demonstrated to the legal community that technology was an asset in addressing the issue of record keeping.
MANDATORY V. PERMISSIVE
If all filings are not electronic how does the clerk keep a complete file? Does the clerk have to maintain a paper file and an electronic file? These issues can seem overwhelming at first, however, there are several approaches evolving. The obvious solution is for the court to mandate electronic filing- the public being accommodated at public access terminal in the courthouse. This solution seems to have acceptable application to large complex cases as studies are demonstrating that it is less expensive to file electronically then in paper. Another solution is to integrate an imaging system with the electronic filing system. While this is an expensive approach it holds out the promise of the best path to an electronic case file. Early experiments, such as the one to begin shortly in Chelean County, Washington are being watched closely.
Technology is expensive and courts traditionally do not have the ability to persuade budget authorities to increase technology expenditures. In order to undertake the development and maintence of an electronic filing project a court needs to purchase software, hardware and pay for project administration and change management. One method, which has helped overcome this obstacle, is the public-private partnership. By employing a public-private partnership the court, has the opportunity to obtain leading edge technology, without the expense of developing and maintaining the technology-typically areas, which are beyond a courts core competency.
As more courts experiment with electronic filing the evidence is accumulating that barriers are successfully overcome. The lesson learned is clear-do not wait until all the solutions are known, but start with small projects, which allow for the demonstration of small “chunks of success” Success breeds success.
This article first appeared in e-File Report, Glasser Legal Works, August , 2001