Copyright 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. (2)
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
Previous articles are available at http://www.montyahalt.com
1.
1 Judge Ahalt retired from the Circuit Court for Prince
George's County, Maryland in 1999 after 17 years. He currently serves on the
Board of Directors and as Chief Industry Advisor for CourtLink.
2.
2 See www.montyahalt.com/articles/vc/vc-41.htm
Previous articles are available at http://www.montyahalt.com.
Contact; Arthur M. Monty Ahalt
amahalt@virtualcourthouse.com
301-218-2030
© 2001 ... by Arthur M.
Monty Ahalt
