eFiling Bind-Overs and Appeals: Harvesting Some Low-Hanging Fruit

This is Part 8 of 10 in the eFiling Blog Series, check out Part 7 here.

In the standard model of eFiling, a litigant (whether private or public) initiates a case by eFiling with the court. Another, sometimes overlooked, opportunity to harvest some low-hanging fruit involves court-to-court eFiling. Using eFiling to transfer matters from a trial court to an appellate court, as in appeals, or from an initiating court to a trial court, as in a bind-over, offers efficiencies, savings, and process improvement.

104_casebindConsider first appeals from a trial court to an appellate court. Preparation of the Record on Appeal (RoA) is a strictly rule-driven process requiring the transfer of a broad but defined subset of the trial court’s data, metadata, and documents related to the case. Manually selecting what to send, packaging it with the prescribed order, format, and organization, creating the necessary indexes to documents, and transporting it to the appellate court consumes considerable time from one or more highly skilled knowledge workers.

On the receiving end, the appellate court must review the package for completeness and accuracy, re-enter the data and metadata on its own systems, and create its own case files. If the appellate court has its own Electronic Content Management System (ECMS) it may need to scan in the documents and enter the necessary metadata, duplicating entry again.

Appellate court implementation of eFiling for litigants continues to advance at an accelerating rate. However, many of the same appellate courts courts handle data and document intercourse with their originating courts in a fairly primitive manner, which is to say, with paper or static image documents and forms utilizing little data centricity.

By extending eFiling to the courts from which it receives appeals, the appellate court can greatly streamline its case/file setup process, as well as its interactions with the trial courts during and at the conclusion of the appellate phase. It could assure getting well organized, complete, and compliant Records on Appeal from all its constituent courts, while greatly reducing the time spent reviewing RoA’s by some of the court’s most highly skilled staff.

On the flip side, the benefits to the trial courts would be equally significant. A court with its own ECMS could configure its workflow according to the specifications of the appellate court to automatically generate the RoA. Acknowledgements, requests for further information, and case disposition (judgments, remands, etc.) would loop back to its ECMS and workflow from the appellate court.

Many of the same considerations apply in the case of moving a case from a lower appeal court to a higher level, or back again, or both. In many ways, bind-overs would be a lot simpler to configure than appellate RoA’s. Of course, what they lack in complexity they make up for in volume. Streamlining the bind-over process offers great efficiencies to both initiating and receiving courts.

In both the case of Appeals and the case of bind-overs, the filer/receiver model is usually many-to-one. That is, a trial court generally sends appeals to one appellate court (with some exceptions for appeals direct to a higher appellate court), while an appellate court generally receives appeals from many trial courts. Bind-overs likewise typically follow a similar many-to-one model.

In many, if not most places, the “sending” or “originating” court may not be responsible to the same political and/or funding authority as the “receiving” court. This reality causes the Three Rules of Funding eFiling to rear their often unbecoming heads: 1) It isn’t free; 2) Someone has to pay for it; and 3) The chosen strategy has implications. In short, a solution that should be win-win may not be considered because no one wants to pay for the whole thing.

Five years ago that might have been a persuasive argument. However, today the answer should be different, because the world is a different place. eFiling has penetrated all levels of courts. Probably the most direct strategy in this instance is to have the “receiving ” courts extend their eFiling systems to their “originating ” courts. The marginal cost to the “receiving” court would be more than offset by the resulting savings.

It sure looks like low-hanging fruit.

Coming up next: Blog 9 of 10: eFiling Blog Series – Law Firm Considerations

Integrating eFiling with the Case Management System

This is Part 4 of 10 in the eFiling Blog Series, check out Part 3 here.

Courts understand the critical importance of and need for integrating the eFiling system (EFS) with the court’s Case Management System (CMS).[1] OK; but what should that integration look like? Just like saying you need transportation to get from home to work, saying the court needs to integrate the systems does not end the discussion. Do you want to buy a car? Join a carpool? Take the bus?

integratingefilingThe good news is, there are choices. The other news, though, is that each choice has its own implications. Like the transportation choices, some offer great power and simpler maintenance; but at a price of limited flexibility and unanticipated dependencies.

First, how tightly integrated should the EFS be integrated with the CMS? At first blush, one might assume the tighter the better. If the EFS and CMS are actually the same system, one would think they could more easily act in concert.

Perhaps. However, consider where the CMS “lives”. Almost certainly the strongest security surrounds the CMS, and it will be placed behind a secure firewall. A firewall exists to control – read “limit” – access to that which lays behind it. In a tightly integrated EFS/CMS, “holes” must be drilled through the firewall to allow the filed documents in. Like holes over an ice-covered lake, while no one hole may jeopardize its integrity, the more you drill, the greater the risk of failure.

Furthermore, the CMS will, of necessity, require a certain amount of “down”, or off-line, time. During the down time, the system may be unable to accept filings.

Shielding the EFS from the CMS using an intermediate system can ameliorate these limitations. Essentially, the CMS will “push” a replica of the salient part of its data (the EFS only needs access to some, not all, CMS data) to a cache available 24/7 to the EFS. Communication between the EFS and the CMS can then operate in a much more flexible asynchronous (when ready) fashion, rather than facing either lock-step synchronicity with the attendant “dead” periods during which filing services would not be available. The tradeoffs include synchronicity (must the E-Filing system have access to up-to-the-second current CMS data?) and the overhead of “pushing” CMS data to the EFS.

Second, eFiled documents must be docketed in the CMS. One of the major advantages of eFiling to the court is leveraging the system to facilitate or completely perform the posting, depending on the type of document and the court’s comfort level with rule-driven posting (usually starting quite conservative, and becoming more automated as experience is gained).[2] This requires integration with the CMS.  Otherwise, docketing will still have to be done by the clerk, just as in the “paper” system.

Some CMS’s allow direct, or “hard link”, integration. However, where either the CMS does not have hard link capability, or if there are other reasons not to couple the systems quite so tightly, the EFS should be capable of providing the linkage from its end.

Each CMS has its own set of “codes” or object types, for documents. These can run the gamut from very general to very specific. For example, “Motion” could generically refer to any kind of motion; while “Motion to Allow Substitution of Counsel” would be quite specific.

This creates a couple of challenges for EFS/CMS integration. On the one hand, since courts typically have to “accept” just about anything that is filed (I keep hearing the example of a napkin, which seems a little farfetched; but you get the idea), the fact that the “code” used on a document may be incomplete or incorrect cannot stop the filing process. However, it can and should affect whether and how the docket entry in the CMS is made. A solid EFS with good workflow capability can be used to set the docketing “rheostat” from full clerk review every time, to “exceptions only”, to full auto docketing.

The “plumbing” of the EFS/CMS integration can come in different forms; and is generally dependent on the sophistication of the CMS. The preferred method of getting information from the EFS to the CMS is by using Web Services. Most modern CMS’s are built with Web Service capability. In those cases, EFS/CMS communication can be straightforward, based on the EFS standards. Because the Web Services are standards-based, they easily accommodate subsequent changes in either the EFS or CMS.

Older CMS’s, which may not be Web Service enabled, must be accessed either through a custom-built Application Program Interface (API), or through direct database access through database querying. API’s provide a lot more control and security, but have a cost to build and maintain. Major changes on either side of the EFS/CMS fence will probably require changes to the API’s.

Of course, in addition to receiving documents from outside filers, a court also generates its own documents, like notices, orders, letters, etc. Older CMS’s probably have data fields for physical mailing addresses. But not all have data fields for email addresses or websites.

Again, it often makes sense to offload the responsibility for sending out documents to the EFS, which can keep track not only of who should get what, but where the documents should be electronically delivered, not to mention what was sent, and when, and whether it was received.

To take advantage of the key benefits of eFiling requires integration of the EFS and the CMS. How that actually looks depends on business, financial, technical infrastructure (CMS, communications, ECF architecture, and so on), security, and performance considerations. Each court should carefully examine how it makes the most sense to integrate its systems.

[1] See Mrs. Wormer’s Coat, posted February 17, 2014

[2] Formally known as the Court Record MDE (Major Design Element) of the ECF filing standards. See the coming post concerning The Life of a Document After eFiling.

Coming up next: Blog 5 of 10: eFiling Blog Series – Life of a Document After eFiling

 

Funding eFiling: Calculating the Cost

This is the conclusion of Part 3 of 10 in the eFiling Blog Series. Check out the first half of Part 3 here.

fundingefiling2Handling of indigents in an eFiling system will be profoundly affected by the chosen funding model. In a fully court-funded model with no user-based fees, it’s simple: indigents can be handled the same as any other filers. However, any model deriving funding from user fees or service charges, both policy and procedural considerations are highly significant. On the policy side, there are access to justice considerations. Any model basing fees on total cost divided by number of filings must, in order to avoid major underestimation of real revenue, fully account for the portion of eFiling attributable to indigents.

A number of courts have made the mistake of calculating costs based on number of filings, only to later realize that filings by indigents comprise a large portion of the totals; and those must be “carried” by the rest. Then, the system must be able to identify and appropriately process those who are exempt from fee payments (which may occur in many places during the filing process; not simply where “filing fees” are typically collected).

In any event, any system that is collecting fees from filers (whether eFiling fees, or other statutory fees) should have a mechanism to handle indigents. The most common mechanism is to allow the user to file an “application for waiver” document which the court can approve on a case by case basis and thereafter the user can file to that case without cost.

A major consideration with Pro Se litigants, particularly in a “mandatory” eFiling system, is making the system easy to use for those who have never used it before. Consider: in the paper world, one could mail a document to the court. Courts didn’t have to help people figure out how to use the postal service. With eFiling, people are in a completely new and unfamiliar world. Will the interfaces be simple enough; and how much will the support (including real-time, “live” personnel) cost? A related topic is the “morphing of what used to be court law libraries into staffed media centers which, among other things, can support pro-se litigants.

Again, aside from a fully court-funded model, a seminal question is “What ARE other government agencies?” Clearly prosecutors, but how about indigent defense providers? Executive agencies? Private contractors on government contract? And so on. Then, how and how much should each various class pay?  And to whom? In the paper world, the court never bore the cost of postage for incoming filings; does this imply the court should have no responsibility for the cost to submit a document to a private filing portal? Politically, the court’s partners will undoubtedly notice the cost if they are required to bear it, even if the actual “filing convenience fee” is waived. Models could include, for example, a “purpose-built” EFSP for use by partner agencies to streamline the filing process.

Refer back to Rule 1. eFiling is NOT free. For example, because we are not used to thinking of credit card processing fees as an additional “cost” when we shop, we forget that the merchant has to “eat” those costs. With eFiling, the court is the merchant.

Up front and on-going user support can be easily overlooked or, worse, vastly underestimated. Pro-se litigants (not to mention out of town attorneys, occasional users, and so on) will need support; and a court underestimates the amount and cost at its peril.

Depending on the implementation and strategy, there are any number of cost and expenses that are not obvious. Absent rigorous due diligence, many of the costs may be overlooked until too late.

Two key points to remember about filer payment systems, be they credit card, escrow accounts, billings, or other system: 1) Every payment collection system has a cost; and 2) Someone is going to pay that cost. A related point is that avoidance by the court of the costs (say, for example, by arranging for “face amount” payment by a credit card processor) may very well result in substantially higher costs to the filer than if the court simply figured the credit card processing fee into the amount it sets as the charge.

eFiling entails costs for both implementation and ongoing operation. Some costs are direct and obvious; others are indirect and/or not easy to spot. A number of different strategies exist for funding these costs. Determination of both the nature of the costs and the funding model, as well as the nature and type of ongoing responsibilities the court and its partners must assume requires rigorous due diligence to develop and execute a solid, cost-effective, sufficiently funded eFiling system.

The good news is that an experienced eFiling vendor can help identify analyze the court’s situation, the available opportunities, the true costs, and the realistic choices, enabling the court to build its eFiling solution using a solid financial model.

Coming up next: Blog 4  of 10: eFiling Blog Series – CMS Integration

Funding eFiling: Selecting a Strategy

This is the first half of Part 3 of 10 in the eFiling Blog Series. Check out Part 2 here.

fundingefiling1Despite the tendency of court eFiling advocates (admittedly aided and abetted occasionally by vendors) to move directly to discussion of the benefits of eFiling, it will come as no surprise that there are both up-front and ongoing maintenance costs. Thus, a threshold question is “How to fund eFiling”.

A number of eFiling funding strategies have emerged. Which strategy, or mix of strategies, will be optimal for each organization will depend on the organization’s particular situation and needs. This article will touch on some of the basic strategic approaches and the basic questions each organization should carefully consider as it develops its own eFiling implementation strategy.

Here’s the caveat: This viewpoint is from 50,000 feet. Courts will have to deal with the situation at ground level. Translation: this piece is a broad and general overview to assist in planning how to start. The best way to work through successful planning is to engage a partner who is knowledgeable and experienced in development and implementation of successful eFiling systems.

Basic funding models fall into four categories. These categories can be mixed based on needs: different case types, for example could use different models. And, undoubtedly, there are other “custom” types of models. But, no matter the model, these three things are always true:

  1. eFiling systems are NOT FREE, either to acquire or to operate. Even if they are ultimately less expensive than the manual systems they replace, they still have a cost.
  2. Someone is going to have to pay for it. Even if payment goes from the filer to a vendor in exchange for the vendor operating the system so that the court itself sees no added expense, someone (usually the filer) is paying.
  3. Each strategy has important direct and indirect costs, benefits, and implications.

In light of Rule 2, the fundamental strategies include:

  • The court pays for everything. This strategy requires funding through the court’s budget appropriation. The obvious drawback is that it requires convincing the funding authority to provide the funding. Two obvious advantages include not imposing additional costs on filers and not incurring the overhead costs of collecting, accounting for, and disbursing funds received for eFiling. In many situations an incremental “technology fee” can be added to existing fees, and thus the cost can be paid as a small tax to all users.
  • Filers pay a per-filing convenience fee. From the 50,000 foot level, this method looks “free” to the court, assuming the fees are set so that the amount collected at least equals the cost of the system. At the ground level, it gets a lot more complicated. Questions such as “Which filers pay” (Prosecutors? Indigents? Criminal Defendants?); “How to treat different types of filings”; “Bill by filing or by file size?”; and so on.
  • Filers pay a one-time, per case fee. An advantage over the per-filing model is the significantly more simple administrative overhead of assessing and collecting fees.
  • Filings are free; the court charges for other enhanced services (such as document viewing). A variation of this model is to allow parties to view their own cases for free, but otherwise charge. Again, in the matter of administration, “some assembly is required”.

Whether eFiling should be mandatory is a threshold question with no simple answer. On the one hand, for the court (and wider justice system) to realize efficiencies of eFiling sufficient to offset its costs, the faster the court can exit the “dual system” (both eFiling and paper filing) the better. On the other hand, unless the funding model is essentially “Free to the User”, there are important access to justice considerations. These considerations lead to potentially complex and expensive administration of “exceptions”.

To Be Continued…

Coming up next: the conclusion to Part 3 – Funding eFiling

Armor Up: Electronic Court Tools for Judges

SONY DSC

Recently I saw an exhibit of a fully equipped Roman Legionnaire from the early Roman Empire. All that stuff – armor, sword, shield, spear – sure looked heavy. Interesting enough in itself; but later that day, I happened to see a picture of a fully outfitted American soldier in battle gear.

And I thought, “Hmmm…”

So I did some Googling and came up with an interesting little factoid. The average weight a Roman Legionnaire carried two thousand years ago was about 80 pounds.   A modern day American soldier carries — you guessed it — about 80 pounds.

A pessimist might say, gee, all the advances we’ve made; but the poor foot soldier is still carrying the same load. What a surprise.

But what matters is that the 80 pounds should be the best equipment for the mission. And what is the best available equipment for the mission has changed plenty in two millennia.

Which brings me to an observation concerning the current move toward Enterprise Content Management (ECM)-enabled judicial workbenches. Judges need tools and supplies in the form of information to accomplish their mission. They need access to information about the matters before them and to related matters; they need access to the applicable legal authorities and so on.

What is true with judges, just as with foot soldiers, is that there is a limit to how much they can carry and still operate. The advent of judicial workbenches powered by ECM with configurable workflow is fundamentally changing how much and what kind of work judges can accomplish during their limited available time. Because what has NOT expanded is the amount of time available to a judge.

Judges have always needed access to information. In paper-based systems, either the judge or someone on behalf of the judge had to locate the information in paper documents and files. Their instructions and decisions had to be committed to paper documents, which had to be routed and physically transported. To be signed, documents had to be physically available to the judge.

When legal authorities were cited, the judge had to access the appropriate volumes of statutes, case law or other authority, so physical proximity to these (often voluminous) sources was a real advantage, but it came with great overhead. Likewise, access to related files and documents, often necessary, required physically tracking down, pulling and delivering the appropriate paper files.

Today, a judge can use an electronic or paper-on-demand judicial workbench that uses ECM with configurable workflow to streamline and integrate all these activities and more. Such a workbench can integrate the court’s documents and files, case management systems and related agency systems, such as inmate tracking and warrant tracking, into a single, easy-to-use tool for the judge. Such a tool can provide, for example,

  • Intuitive, multi-touch interface with gesture-based commands
  • A docket-based system that is both judge-driven and clerk-driven in the courtroom
  • The ability to view relevant documents specific to a hearing
  • Easy-to-use electronic case files with colored-coded folder tabs
  • The capability to securely sign documents quickly and easily
  • Include judge’s notes, permanent markups, under advisement

and much more.

Just as with the foot soldier, none of this should be expected to make a judge’s life easier in the sense of working less hard. Eighty pounds is eighty pounds. However, with tools such as these at their disposal, judges can accomplish far more than in the olden days, with the same amount of effort; generally, everything they’ve got.

Courts and the Network of Everything

80_social mediaThis month’s NACM Annual Conference had excellent presentations and conversations regarding where courts are heading given current and emerging technological, demographic, political, financial and social trends. Big players among the trends discussed included both networking and social media. One result for me was a couple of either epiphanies or mild mental episodes (hard to tell the difference sometimes).

NACM Keynote Speaker Seth Mattison[1] made the point that the post-baby boom generations have grown up in a totally different information, social and structural paradigm than boomers and their ancestors. Up through boomers, the paradigm was hierarchical, linear and flat. Mattison used the example of the Org Chart, top-down information, power and status flow.

 

For post-boomers, the paradigm is network. The very term “peer to peer” is completely antithetical to a hierarchical structure. Millennials don’t reflexively look for channels to go through—they go directly to the end target. Boomers are appalled that the “youngsters” (now in their 30s and early 40s) don’t get it. Meanwhile, Mattison points out, those “kids” grew up being the family CIO.

Regarding social media, much discussion centered around:

a) How do courts control it, and
b) How can courts use it?

Both are interesting and complex topics. IMHO[2], those aren’t the most important questions. Most important is not what social media does or how it works or who is using it. Rather, most important is that today’s social media is symptomatic of the very paradigm change that Mattison discussed.

Question: What does your preference in, say, music have in common with the Taj Mahal? My Answer: They’re both nodes on The Network of Everything.

What’s going on with social media is that information and records, to paraphrase Karl Heckart, Arizona Judicial Branch CIO, in his excellent NACM presentation, are “shifting from Analog to Digital”. The Internet arms race is expanding the population of network nodes –people, places, things, thoughts, relationships and more – at a rate and through dimensions inconceivable even five years ago. And the rate is exponentially accelerating.

The social media technology that’s driving the Internet has unstoppable momentum, and your court has no choice but to embrace it in order to manage it. If you don’t, your data will find its way into the social media realm without your control.

What does this portend for courts and the content that needs to be managed? Part of me answers honestly, “Darned if I know.” So much is unknown. Yet, another part of me thinks, here are a few things we can say with some certainty:

  • Paper documents as containers for information may be a current challenge; but in ten years, they’ll likely be as relevant as drawings on the side of a cave in Madagascar. To the extent the informational elements in documents cannot be integrated to the Network of Everything, they’ll become irrelevant.
  • The very concept of a document, in a fully networked universe, becomes quite different than what we use today. For example, in a paper-centric world, the defendant’s name or the charge may be part of many documents in a case file, from the Complaint to the Judgment. Yet in a digital, fully networked world, the defendant’s name is more correctly understood as a data element that is part of a number of associated groups of elements. Some of those groups might be loosely analogous to documents; others will not. Certain external parties and events will continue to require the reproduction of a document, but this will occur from data, on demand (a key component of “Paper on Demand,” about which I’ve previously written).
  • Heck, social media has ALWAYS existed: The back fence, the telephone, surreptitious notes in class, gossip columns, TV and radio. The fundamental shift is in the mechanism of data transport. What’s changing so fast now is the relationships of people to one another and to the elements of the universe in which they live, enabled by technology that becomes increasingly transparent.
  • Soon, we’ll likely see a continued expansion of the meaning and scope of Electronic Content Management. Already, it bears noting that ECM is about far more than managing electronic content. It’s about managing the relationships among an almost infinite variety of things that are networked, including documents, people, events, courts, responsibilities, rights… and more.
  • But what about the “Process”? Because of the explosion of content, a key way to make sense of information in the Network of Everything paradigm will be – and probably already is – workflow technology. Workflow won’t just be AN important thing – it will be THE important thing, because content and people are all nodes on THE SAME NETWORK. Workflow is what makes their relationships to one another have useful and/or rational meaning.

So that’s what I think is facing the courts. Part of it, anyway. More later.

[1] http://sethmattison.com
[2] In My Humble Opinion

A Brief Memo from the Future

79_brief memo

Like Billy Pilgrim, in Kurt Vonnegutt’s Slaughterhouse Five, I sometimes become “unstuck in time.” So it was that I recently came across an article I wrote in early 2019. Oops, that’s five years from now. I really need to clean up my filing system… Still, it did catch my attention, and since it deals with courts of the future, which is also the theme of this week’s NACM conference, I thought it would be a timely blog topic.

In the 2019 piece, I was looking back, reflecting on the time when just about everyone involved in court document and record management assumed that there was no way court documents and records would ever be stored largely “in the Cloud”:

Back in those days [2014], it went without saying that there was no level of security that could be high enough to justify putting critical, sensitive court documents and records “at risk” in some virtual, remote “place.” In fact, a lot of courts didn’t even have to consider it because their statutes and regulations required physical storage within the geographical jurisdiction.

In 2019, it’s as hard for people to understand how anyone could have ever considered “local” storage and management of court documents and records to be more secure as it had been in 2014 to believe that anyone ever thought that courts were the only viable source of court systems software development.   Both, of course, were making the same mistake.

Those involved in court technology management in 2014 sometimes failed to appreciate that the technologies and products then available and required for state-of-the-art court systems software HAD NOT BEEN AVAILABLE 20 or even 10 years earlier. For that reason, in the 1980s and 1990s, in-house court software development was, in many cases, the best practice. By 2014, though, it had become technically, financially and politically difficult and risky for courts to attempt in-house software development and maintenance.

Likewise, in 2019, people often forget what the security landscape looked like in the first decade of the millennium. The Internet often resembled the 19th century Wild West. The safest place to keep your data was completely separate.

Of course, over the not-so-long haul, that method worked about as well as keeping your money safe by stuffing it in the mattress. In order for the information to actually be useful, it couldn’t be kept totally separate. So much for security based on isolation.

In 2019, of course, everyone understands that the ONLY real security for court data is in the Cloud. Nowhere else are the tools, infrastructure and oversight either sophisticated enough or cost-effective enough to adequately protect critical, sensitive information. Five to 10 years ago, those tools and that infrastructure were still in development, which is why court record managers of the time could be forgiven for trying variations of mattress-stuffing. Today, in 2019, we are thankfully past all that and our court records are all the more secure for it.

Now, the reason this little piece caught my eye (even though I shouldn’t have seen it for another five or six years) is  the part about statutes and regulations requiring local storage of court records. Technology and security aside, there are some pretty compelling arguments (and certainly a lot of emotional desire) for requiring records and data to be locally stored. Fortunately, even today, that is no barrier to cloud storage. Robust Enterprise Content Management (ECM) systems already provide the capability to specify storage in close geographical proximity to courts anywhere in the country.

As courts implement their ECM solutions in good ol’ 2014, they probably ought to pay attention to whether their solution could, one day in the future, be migrated to the Cloud. Not that anyone’s suggesting it, mind you! Just sayin’.

 

The Fact Is, It’s a Better Record

77_better-record

You know the monkeys are winning when even the dinosaurs start betting on and rooting for them.

An interesting debate between those involved in the medical field and those involved in the legal field is over who is more technologically change-averse — doctors or judges? It’s one of those neck-and-neck races in which it’s difficult to tell who’s “winning”. Fact is, both professions — particularly with those in the gray-of-hair demographic — are, as a group, pretty tough to sell on the desirability of moving away from paper-based records. Both have been clinging to paper a lot longer than much of their surrounding worlds.

As part of my ongoing crusade to support the medical services community, I recently visited a doctor — a specialist with whom I have had a long and heavily documented history. The doc is about my age, which is to say, certified dinosaur.

Now, my history with this physician goes back over 20 years. The last time I saw my “hard file”, it was in fact two files, each of which was about four inches thick. Since, if the doctor and I get our way, we’re less than halfway through dealing with my condition, I figure I’ll eventually have my own shelf in the file room.

Over the past several years, he and I have discussed the paper versus electronic record question. He’s an outstanding physician, tops in his specialty, and works very hard to stay current on the explosion of progress in his field. But, when it comes to dealing with records, he admits to being a true dinosaur — the paper is just easier for him to use, he claims.

Thus, when I had my most recent appointment, it did not escape my notice that when he entered the room, he did NOT have my file with him. Instead, he accessed my record on the computer, and as the exam progressed, he entered information into it.

I, being not exactly the shy, quiet type, said to him, “I have to tell you that I’m impressed with the fact that you’re accessing and entering my information on the computer.”

He stopped, looked at me over his reading glasses and said in a somewhat sheepish tone, “Well, the fact is, it’s a better record.” [emphasis added]

Kaboom. There you have it. This from a guy for whom the quality of the record is, quite literally, life and death. I didn’t even have to say, “Told you so.” He got there on his own.

I asked how the Electronic Content Management system worked for him. He said it had taken him awhile to get used to; but now that he’s been using it, he actually can’t imagine going back to paper files. He also said that, while doctors in “our” age group are still somewhat resistant and slow to get on board, younger physicians universally want nothing to do with hard files and paper. He added that, in fairly short order, they (the younger, more tech-savvy doctors) are going to succeed in moving everyone away from the paper files. And, he said, that was a GOOD thing.

So we two dinosaurs agreed that the smart money is on the monkeys. And that we’re rooting for them.

 

 

Ditch the Training Wheels with Electronic Content Management

75_training wheelsOn hearing of a particular court’s experiences with implementing a new information system recently, I was reminded of a scene from Carl Sagan’s science fiction classic, Contact. In the story, an advanced civilization has sent specifications for construction of a craft to permit communications. The specifications call for a sphere, the interior of which is to be empty of everything except the human operator.

The humans figure out how to read the plans, and they understand them well enough to build the craft. The one thing they think they have to add is a safety seat for the human operator. Against the strong objections of some of the team, a sturdy, padded seat, complete with seat belt, is bolted to the center of the floor.

The operator (in the movie, Jodie Foster), is strapped in. As the final countdown proceeds toward its climax, the craft begins to shake violently. It shakes so hard that it seems the craft will be destroyed. The mission controllers are on the verge of aborting the mission.

Finally, the shaking becomes so severe that the bolts attaching the seat to the floor break loose. Instantly, once the seat dislodges, the shaking stops. The craft proceeds to function smoothly as it had been designed to do. Turns out that the designers knew what they were doing: Not only didn’t the craft need the “safety seat”, but its presence introduced critical disequilibrium into the system.

Many (if not most) courts, when it comes time to implement Electronic Content Management (ECM), have a hard time resisting the temptation to install “safety seats” on top of the new paradigm. Sure, the documents are electronic, but we’ll just require paper copies as a backup to be on the safe side. Sure, we’re keeping the documents electronically, but we’ll insist on printing documents to be signed, having them signed manually, then re-scanning them into the electronic system. Oh, let’s leave electronic filing to be discretionary so that those who are still uncomfortable with e-Fling can continue to file in the traditional manner.

While these “safety” measures are usually intended to be (or are at least alleged to be intended to be) “temporary”, the problem is that they can create critical disequilibrium. If the court is not careful, it may conclude that the new system itself is unstable and not workable, when in fact the problem lies with attempting to build in remnants of the older systems for the perceived comfort of familiarity. The real danger is that, instead of jettisoning the “safety seat”, they will curtail their migration to the new systems.

There is no question that some interim dual systems and temporary processes are helpful and necessary to facilitate smooth implementation. Indeed, the very term “Paper On Demand” is an acknowledgement of this important reality. In many ways it’s like kids using training wheels to learn to ride their bikes: it helps at the very outset. However, once the kids want to get out of their own driveways and start actually using the bikes, those training wheels are in the way, limit what can be done, and can be dangerous. They should come off at the earliest possible moment.

Likewise, a court ECM implementation plan that envisions putting interim, dual-system, backup processes in place during the implementation should include a tight schedule for phasing them out or cutting them off altogether. Furthermore, counterintuitive though it may seem, if things seem not to be working as smoothly as hoped during or immediately following implementation, attention should focus on accelerating the abandonment of such processes, rather than attempting to enhance or expand them (tightening the bolts, as it were) and pull back from the new system. Chances are excellent that they are what is causing or exacerbating the disequilibrium and that, once they are removed and the system can function as designed, the ride will quickly become a lot smoother.