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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.
SIGNATURES
“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.
COST
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.
CONCLUSION
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
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