Seven Classic Arguments Against eFiling And How they’re Holding Up (HINT: Not Well)

This is Part 1 of 10 in the eFiling Blog Series.

eFiling became mainstream some time in the past couple of years. Although it is still far from universal, most court observers regard it as inevitable. But things were not always thus. Recently I had cause to reflect on what, back in “The Day”, were the classic arguments/barriers that were so often used to slow or limit the use of eFiling.

96_efilingarguements

So, for old time’s sake, here’s a quick stroll down Memory Lane with seven of my personal favorites:

  1. It’s not legal.

Well, possibly not, if you don’t do it according to the statutes, administrative orders, special Supreme Court orders, and so on that have been enacted and issued in every state. Otherwise, it may be less permissible to NOT file electronically in the rapidly increasing number of jurisdictions in which eFiling is mandatory.

  1. It’s not safe.

Actually, safety and security are major reasons to move to eFiling. There is simply no way to make manual filing as safe, secure, and auditable as effectively implemented eFiling.

  1. It’s too expensive to buy.

Even though it is possible for courts to procure and implement eFiling at “no out-of budget cost” (or very little), the model in which vendors take a prospective share of the revenue stream in exchange for absorbing the initial costs has become less and less prevalent. That’s mainly because the cost-recovery breakeven for eFiling is so rapid that courts have little incentive to forgo more of the down steam revenue benefits.

  1. It’s too expensive to run.

This objection could be true – if eFiling indefinitely remains “optional”. That’s one of the main reasons almost all jurisdictions have moved or are rapidly moving to “mandatory” eFiling, with provisions for special (and occasional) exceptions that require approval. In all other respects, the business case for eFiling is absolutely, spectacularly, and in many ways stunningly positive. The cost of operation using eFiling is a fraction of the manual processing it replaces.  Moreover, the opportunities to monetize the convenience to filers and downstream users who desire document access present potential revenue sources which the jurisdiction can consider if it so desires.

  1. The staff is too resistant.

Maybe – at the very beginning. With proper advance preparation and training, even the initial trepidation, insecurity, and fear of change can be replaced by excitement, enthusiasm, and commitment. In any event, within the first several months AT MOST, staff in courts that have moved to eFiling almost universally avow that they would never want to go back to manual filing processes. Implementing courts (often to their surprise) observe a marked improvement in staff morale.

  1. The judges are too resistant.

Ah, well — Ten years ago, judicial resistance could be a show-stopper. Five years ago, it could really slow things down. Today — it’s only going to be a show-stopper if the Chief Justice or the Presiding Judge makes stopping it a crusade. To be clear – judicial support is invaluable in assuring smooth, successful implementation. However, today, the forces behind eFiling are just too inexorable.

A judge today who wishes to crusade against eFiling faces serious risk of at best being marginalized; and at worst, being pushed aside.  As the generational turnover continues and accelerates, the more common situation is that the judges are pushing for eFiling.

Finally, the vast majority of judges who’s courts have done it have become supporters and are willing to tell that to their skeptical colleagues.

  1. The attorneys are too resistant.

Au contraire. The bar wants eFiling; and it wants it yesterday. While they’d rather have it for free, if the choice is to pay or to not have it, they’ll pay.

Ironically, the classic arguments against eFiling have turned out to be the strongest business reasons for implementing it: Lower cost, greater security, improved staff and judicial moral, better relations with the bar, and so on. A number of less-often cited arguments have fared as, if not more, poorly. Anyone using these arguments today really should do some homework. It’s a new world.

Coming up next: Blog 2 of 10: eFiling Blog Series – ECF Standards

One thought on “Seven Classic Arguments Against eFiling And How they’re Holding Up (HINT: Not Well)

  1. I completely agree with your analysis and yet there are courts out there that still don’t want to implement. Why? Too much work? Don’t fix it if it ain’t broke? Too much bureaucracy from the state office? It would actually be interesting to explore this hesitancy of courts to engage more.

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