Wine, Cloth, Carpentry and Court Automation

By Jeff Barlow, Justice Consultant, ImageSoft

It’s pretty intuitive that when it costs less to acquire and run an automated system than to pay people to do the same work it makes financial sense to implement the technology. However, what is a lot less intuitive, but, paradoxically, a lot more true, is that it can make more financial sense to implement technology even if people could do the tasks for less.

140_competitve theoryWhile reading William Berstein’s A Splendid Exchange: How Trade Shaped the World (a fascinating and incredibly timely read), I had one of those “Aha” moments (either an epiphany or an unscheduled, age-related loss of brain cells, I’m never sure which). This one related to the international trade economic Theory of Comparative Advantage, first promulgated in the early 1800s, and how it might apply to the business case for implementation of automated systems in the courts.

In terms of international trade, the intuitively obvious conclusion is that if one nation (Country A) can produce something for less than another nation (Country B) can produce it, Country A should never buy that product from Country B. That’s what’s called The Principle of Absolute Advantage. Very obvious. Very simple. And, often, very wrong.

The key factor is Opportunity Cost. In the classic example, assume Country A can produce wine for half as much as Country B and cloth for one third as much as Country B. Further assume, in the perfect world of the theoretical economist, that any resources (labor, equipment, land) devoted to production of wine will reduce the amount of cloth that can be produced. In that case, Country A makes out a lot better buying wine from Country B in order to maximize production of the higher-margin cloth.

The part that got me thinking about the technology business case was a non-international (and for me much more understandable) illustration. Assume a highly specialized, very skilled and experienced attorney in high demand can bill $1,000 an hour. Assume also that the attorney is a very skilled carpenter; so much so that the attorney can do in half the time the same quality work as a master carpenter, who charges $100 an hour. As a strictly financial or business proposition (leaving aside personal satisfaction), should the attorney do or not do a DIY remodel job? Clearly, to the extent the time remodeling reduces legal practice billable hours, the attorney is losing (by not earning) money. That’s Opportunity Cost.

Now look at the business case for court technology. Suppose the acquisition and ongoing operational costs, for whatever reason, appear to be greater than or not significantly less than using staff to perform the same functions. While the Principle of Absolute Advantage (the obvious answer) would suggest that it would be more cost effective to forego the technology, such a conclusion may well overlook substantial Opportunity Costs. Simply put, what AREN’T those staff doing when they are manually dealing with those physical documents? What ISN’T the file storage area being used for while it houses all those files? What could those resources be better spent on? And so on.

While not the only question in the business case, how much is “being left on the table” should absolutely go into the calculation. If every staff person were capable of transporting, filing, or tracking documents and nothing else, perhaps the Opportunity Cost would be low. But that’s rarely the case. Those folks could be, and should be, and would be happier doing so much more.

 

Juggling Public Record Requests – Keep Those Balls in the Air

 

Tim Zarzycki, Senior Account Executive, ImageSoft, Inc.

iStock_000011704687_MediumAmong the multitude of daily tasks performed by court clerks is responding to public requests for records. These records include case files, dockets/summaries of court cases and courtroom proceedings, records about defendants, criminal records, and long email threads, often with photos and videos attached. In addition to explaining court actions and decisions, these records are generally accessible to the public based on state sunshine laws, open records laws or public records laws. In an era of greater scrutiny and demands for transparency, clerks need better ways to handle public record requests.

It’s a juggling act that gets more complicated by the day.

Day-to-day challenges

Giving the public its right of access to public records can be a cumbersome challenge for paper-based courts or courts working without an integrated case management system. It clogs operations and requires scarce resources. In addition to coordinating and maintaining the case file associated with such requests, courts also face such challenges as:

  • Siloed data and documents in each department with incompatible formatting — hunting down documents from multiple departments, locations and filing cabinets puts a burden on government staff and leads to lengthy fulfillment cycles
  • Challenges of tracking and distributing requests, reviewing long email chains, making phone calls and hunting down documents; most tracking systems are spreadsheets that require manual data entry which further consumes staff time
  • Need for a consistent layout for the request packet
  • Need to maintain correspondence with requestor, additional departments
  • Inconsistent/poorly defined request methods
  • Audit trail requirements
  • Protocols for redaction
  • Retention times/discard times/destruction processes with certificates of destruction
  • Fee collection processes
  • Statutory deadlines for providing public records
  • Document security

The right solution

JusticeTech’s public records solutions create a complete package to manage the full scope of public records needs, helping courts meet their legal responsibilities for transparency and open government initiatives. The solutions help court clerks and staff retrieve and bundle documents to meet record requests, provide self-service access to documents and records, automate the request process and redact confidential information. These solutions:

  • Simplify request submission and delivery for constituents
  • Provide comprehensive search for complete request fulfillment
  • Improve process transparency and reporting for better constituent service

Read more about automating request for public records and keep that juggling act in the air.

How are you managing public requests for court records?

 

See You in Salt Lake City

We’re looking forward to the Court Technology Conference in Salt Lake City September 12-14. Events such as this give us an opportunity to meet and greet customers and potential customers. We’re always happy to talk about JusticeTech and the ways its solutions can make courtrooms run more efficiently. Stop by our booth #410 for a quick chat.138_CTC

In addition, we’ll be presenting at two different sessions during the conference.

Join us on Wednesday morning for a discussion of The Component Model in Action. From its very beginning, ImageSoft chose the component model as the best approach for courts. Our increasing number of statewide partnerships tells us this is the right decision. We will share four reasons why courts are adopting the Component Model as their strategy. We’d like to hear your feedback on this trend.

Then on Thursday morning, we’ll discuss what happens when courts realize it is time for Going Beyond eFiling. Many courts have implemented an eFiling system but haven’t achieved a true digital workflow throughout the court. Paper handling and manual keying still drive too many court processes with attendant waste and expense. Join us for this strategy session to hear how prominent courts with a decentralized judiciary are attaining a digital workflow all the way to the courtroom without the expense of replacing their CMSs.

ImageSoft is an industry leader in transforming courts into digital environments. Our JusticeTech technology solution for courts enables eFiling, electronic case files, public access to documents, Pro Per/Pro Se eFilings and many other benefits.

See you in Utah.

What the “Third Wave” Means for Court Technology

By Dave Hawkins, CEO, ImageSoft

I attended the Inc. magazine GrowCo Conference in New Orleans last month. Somewhere between the seafood gumbo, the crawfish étouffée, and the jumbalaya, Steve Case of AOL fame served up a prophetic message based on his newly revised book, The Third Wave: An Entrepreneur’s Vision of the Future. The title refers to the evolution of the Internet. The First Wave fostered the creation of the Internet with the requisite infrastructure – servers, cabling, network switches, portals, service providers, and the like. Companies such as Cisco, NetGear, CompuServe, Prodigy, NetScape and America Online rose to prominence, while Microsoft, Intel, HP, Gateway, and Dell grew rapidly by virtue of the new demand for personal computers and related software.

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The Second Wave consisted of all the apps built to run on the Internet. This wave included tech firms providing new types of networking and social media services previously unavailable anywhere, such as Facebook, LinkedIn, Twitter, Instagram, Snapchat, etc. It spawned new Internet-only retailers, most notably Amazon, as well as new ways to buy things, such as the online auction service provided by eBay. At the same time, the Second Wave saw the meteoric rise of eCommerce from brick-and-mortar chains that transitioned to online retailing. Department stores, booksellers, pharmacies, and even automakers discovered they needed to forge new online identities to keep their customer bases from dissipating.

The Third Wave will involve the transformative integration of the Internet into all facets of everyday life. In the future, calling a device “Internet-enabled” will sound as silly as calling something “electricity-enabled” today. Steve Case highlighted several major arenas in which the Third Wave will bring revolutionary progress: education, healthcare, transportation, food production and city management. In healthcare, for example, Third Wave technologies will facilitate much greater precision in medicine, allowing doctors to edit genetic code using the power of genomics and data analytics. Fitness trackers will evolve into hardware and software for capturing a full range of vital signs on a daily basis, collecting and analyzing the data to alert patients and their doctors of potential health issues before they happen. When you go to see the doctor, they will already have this data to help answer their diagnostic questions such as “When did it start bothering you?” The implications for disease management, home health care, and epidemic tracking are astounding.

But what about the justice industry, which is ImageSoft’s primary area of expertise? What will the Third Wave bring in the way of improving the American justice system? Today, even courts that go “paperless” still use paper at some point in the case-processing chain. They may, for example, offer eFiling, but print the file once received, or perhaps keep it electronic until a judge needs to sign it, and then have it printed at that point. In the Third Wave, courts will seamlessly integrate tools to keep case records electronic from start to finish. On the front end, lawyers, police officers, and even self-representing litigants will have the ability to eFile documents to initiate a case, and may utilize automated document package creation to expedite their initial case filings. These tools will be particularly helpful for the poor, the disabled, the medically incapacitated, and incarcerated persons to give them much greater access to justice than is available today. New tools will also allow simple cases such as traffic violations to be handled remotely; imagine being able to contest your speeding ticket without needing to take a half day off work to go to court.


Read here how courts can stay electronic from start to finish.

 

Once a case is initiated, the documents can remain electronic throughout the court process via document management and workflow tools to enable access for all parties to a case as well as the related court personnel. Closing a case can also stay electronic, as new eSignature tools are structured to focus on speed and reduce cumbersome repetitive steps, which were impediments associated with older products.

Case cited three factors which will be of utmost importance during this Third Wave: partnerships, policy, and perseverance. As I listened to him speak, I contemplated the changes that are already taking place in the justice technology arena. Forward-thinking court systems are partnering with technology vendors to integrate best-of-breed solutions to automate all aspects of the court process. As for policy, institutes such as the Organization for the Advancement of Structured Information Standards, or OASIS, have piloted policy initiatives to standardize eFiling compliance nationwide. Through it all, perseverance will certainly be required to bring the justice system’s “late adopters” into this next wave of technological advancement.

ImageSoft is working alongside our partners Hyland (makers of OnBase for enterprise content management), Mentis (which offers aiSmartBench and other court tools), and Court Innovations (which provides Matterhorn online dispute resolution system) to reshape the court technology landscape to meet the demands of the Third Wave.

By the time I left New Orleans, I was “jazzed” thinking about the possibilities. We welcome the opportunity to collaborate with others to create a better future for our courts and their many constituents.

What do you think of Steve Case’s vision for the future?

 

Childhood’s End

By Jeff Barlow, Justice Consultant, ImageSoft

Notice anything different about this post?

The difference is probably hard to spot. The difference is ––I’m dictating directly into my word processor. 131_voiceactivation

Now, that may not seem very different to you; but I guarantee you, it’s really different for me. Sure, I used to dictate all the time when I was practicing law. I even dictated quite a bit when we were developing and deploying court computer systems. I’ve dictated documentation, help text, process and procedure descriptions and instructions, and, of course, correspondence.

And, of course, Siri and I are chat pals.

However, the experience of dictating and see the words appear on screen in my document is (for me, at least) totally unlike dictating to either a live stenographer or a dictation unit.

I regard this activity as preparation for direct Brain Machine Interface.

Oh, you don’t believe that BMI is coming anytime soon? Well, you’re not alone. In fact, you’re probably the comfortable majority.

Among those not in the comfortable majority are Mark Zuckerberg, DARPA (Defense Advanced Research Projects Agency), and Google, to name a few. Renowned physicist Stephen Hawking is already doing it. Granted, it is currently very expensive and requires invasive surgery. But Facebook, DARPA, and Google are betting that changes in a big way in the next five or so years.

You don’t have to believe BMI it is possible; but you should be thinking about the implications if it is. Because, whether ubiquitous BMI is just around the corner or not, capabilities that are mighty close are already here.

Like dictation directly into a standard word processor, email, and, most directly, text messaging.

How do you think voice activation will enter court technology?

e-Courts 2016 Quick Review

e-Courts 2016 is “in the books”, as they say. My understanding is that video of the sessions is or will soon be available online. Check the e-Courts 2016 website for information. I strongly suggest viewing those sessions in which you have an interest when they become available.

120_conferenceStarting with Gary Marchant’s Keynote, attendees confronted the evidence that technological changes in society at large have started to overwhelm the justice system; and courts, by and large, are not prepared for it. From body camera data to genetic data to virtual reality evidence, Marchant described how new technologies are overwhelming the ability of governing institutions – including the Justice System – to cope within existing customs, laws, ethical guidelines, rules, processes, and economic models. While much of government may simply refuse to act – pass laws, promulgate regulations, etc. – courts have no choice. They are confronted with the dilemmas created; but have little to no relevant guidance from either the statutory/regulatory framework or prior experience.

Moreover, the shear size of the quantity, and variety of incoming data has begun to overwhelm the infrastructure. For example, how to handle the exploding increase in body-camera data? Not only is the amount huge; but the formats are not standardized; the courts do not have the capability to display all formats, and efforts to convert to “standard” formats constitute alteration of evidence. The need for the technology to manage the technology is manifest.

Meanwhile, as Tom Clarke, Vice President of Research & Technology, pointed out, surveys starkly reveal that the public regards the courts as extremely out of step with what are considered the minimal standards of technological competence for today’s world. In what was possibly the most memorable line of the conference, Clarke described the public’s attitude toward court technological prowess as “Bringing the public yesterday’s technology tomorrow”.

Pretty rough stuff. Still, I thought e-Courts 2016 was far and away the most HOPEFUL court technology conference I’ve ever attended. What to me was most striking was not the fact that speakers were talking about the judicial system being left in the dust. It was that most people were staying to hear it, and ask “So, where do we go from here?”

The very first session, Embracing the Accelerating Pace of Technology Change, observed that courts have moved from a place where a very few are willing to embrace newer technologies to the place where very few are still actively resisting. The session provide insights on how court managers and technologists can affirmatively advance their courts’ ability and willingness to adopt a culture that thrives on constant change.

The Courthack sessions were extremely well received – something I question would have been the case five or ten years ago. Very bright, very energetic youngsters come together to conceive of, design, and build “outside the box” (potentially disruptive of current practices and procedures) applications intended to improve the court customer experience and court product quality.

The JTC – Improving the Administration of Justice Through Technology session laid out the current major initiatives of the Joint Technology Committee – a collaborative effort of COSCA, NACM, and NCSC – to provide practical assistance for dealing with technology change . These include technology standards development, process improvement, technology training for court leaders, and dialog within and among the justice community on technology matters.

Courts disrupted (which Tom Clarke hastened to point out was way too big a topic for a single session) identified some major disconnects in the way courts may perceive their business and what their business really is. For example, the actual mix of case types varies dramatically from what courts are designed to handle. Just one example: cases involving lawyers constitute a small fraction of the total case load.

Fittingly, Good Public Policy for Innovation: Open vs. Closed Ecosystem concluded the conference. I will have more to say on this topic later. The very practical question, in facing the upheavals and the technology choices, is whether to integrate “Best of Breed” components on the one hand (“Open” ecosystem); or to build or acquire a single system that does everything (“Closed” ecosystem). The panelists did a very nice job of identifying the issues involved, the relative advantages and disadvantages.

Again, I strongly encourage you to check the e-Courts website and view some, or all the sessions. And I look forward to future conferences, white papers, and educational opportunities that build on the material presented at this conference to provide practical assistance to court leaders in the facing today’s profound changes.

 

Countdown to e-Courts 2016

I’m looking forward to e-Courts 2016 in a couple of weeks; and not just because it’s in Las Vegas and likely to be sunnier and warmer than the December cold and gray at home. e-Courts and CTC conferences stand well on their own in that they are rich in information, networking and exposure to the latest technological innovations. The e-Courts experience, being court-centric, “lessons learned” as well as future planning makes it all that more relevant.

Beyond all that, for those of us fortunate enough to have attended a number of these conferences over the years, the cumulative “arc”, if you will, of the conferences provides an interesting view of where court technology has been and where it is headed. Each conference has its own special vibe or theme (sometimes more than one); and while there are definite similarities from conference to conference, the differences reflect the advances in the technology and their effects on courts.

118_e-courtsA glance at this year’s agenda provides immediate insight into this year’s theme. All past conferences, of course, have dealt with changing technology. This year, from Gary Marchant’s Keynote Address  through sessions with titles like Embracing the Accelerating Pace of Technology Change and Courts Disrupted, the pattern seems to be identifying and describing not only the technologies, but also discussing how courts can deal with the accelerating rate of change for which technology is a major causal factor. Because, while each new technology in of itself engenders change, the cumulative effect of the myriad of technological, societal, environmental, medical, pedagogical and other tsunami-like changes are altering the very face of the justice system.

One area I hope gets some discussion at and following the conference (while not necessarily under this label) is Complexity Theory. (Several years ago, I wrote a piece for this blog on Complexity Theory, also known as Chaos Theory. The editors mercifully elected not to publish it.) The particular point I made in that piece that should be considered is determining whether, in a very dynamic (that is, rapidly changing) environment, organizations can maneuver more effectively with one large, tightly integrated system, or with multiple smaller, integrated but interchangeable systems. In a broad sense, the answer, of course, is “It Depends.”

I hope there is some discussion of what it depends upon. For one thing, it depends on where the court is coming from. If the court has a tightly integrated system that handles CMS, DMS, work flow, judge’s work bench, public access, web portal, and so on, no doubt there will be real advantages with staying with that model. If, on the other hand, each (or at least many) different functions are handled by separate systems, the answer may be very different. In cases where there is NO current system for certain functions, like Content Management, Workflow, Judges’ Workbench, it’s a serious question whether to try to expand an existing system like a CMS or go with a Best of Breed system that can be elegantly integrated with the existing systems.

The Complexity, or Chaos Theory reference pertains to a characteristic with which we are all familiar but rarely articulate, and for which there is some truly incomprehensible math. Since I am not real sharp with math, here’s an example: If you want to pave an area, are you better off paving it as one section, or as a bunch of smaller sections fitted together (like squares in a sidewalk)? Or, should you have one large single-pane window, or a set of smaller window panes that together form a large viewing area?

While the single area may be easier overall to put in, there are a couple drawbacks. One is that you must be able to do it all at once. Another is that one crack, anywhere, destroys the integrity of the whole thing. Thus, when there is the prospect of variability (like heat changes winter to summer) or instability (like ground tremors) that can damage the window, builders go with the smaller, sectioned design.

I think there’s a real analogy here to the situation courts find themselves in as the gale winds of change blow over them. The Pyramids could withstand a lot of weather. But even they were made of individual building blocks. Yes, we’re all finding new functions we want to migrate onto electronic platforms. everyone should carefully consider not just what works best; but what model will best withstand the certainty of future uncertainty.

Black Belt: Learning to Learn

113_black-beltThe term “Martial Arts” may seem strange to those who have never pursued them. To those who have, however, the term makes perfect sense. Karate, judo, tai-chi, kung-fu, and myriad others, are indeed arts, requiring years of dedicated study and practice to master.

That’s not to say that there is no benefit at the front end. Beginners can pick up the rudiments of self-defense in a relatively short order. Indeed, a lot of folks look no further, in the same way that tourists can pick up enough of a foreign language to get by on a vacation, although they cannot be said to “speak the language”. And, there are a lot of benefits that accrue at the outset: improved fitness, enhanced self-awareness, increased self-confidence, and so on.

Most of those reasons are why people take up a martial art in the first place. When they start, even achieving Green Belt status seems almost impossibly remote. Mastery requires internalizing a complex and non-intuitive set of reflexes that permeate every action and every thought. And there’s just no way to do that without investing a lot of time and effort. Thus, to novices (White Belts), the Green Belts appear to be outstanding, the Brown Belts appear to be perfect practitioners; and the Black Belts are practically gods.

So, here’s a bit of a surprise: A First Degree Black Belt, achieved after years of effort, does not mean that the person has learned all are there is to know. Yes, he or she has become highly proficient, both in the Martial Art and in life in most aspects of life in general. But achievement of First Degree Black Belt status means, within the Martial Arts community, that the recipient is finally qualified and ready to begin learning.

In that regard, the recent announcement that Macomb County, Michigan Circuit Court now processes more documents through its E-Filing System than are received in paper format caused me to reflect that Macomb County and others who have been diligently working on ECM for years are approaching new thresholds. Yes, the ECM systems long ago began providing significant savings, efficiencies, and improved customer service, much as a White Belt realizes great benefits from the first several years of training. But as the courts leave the old paradigm behind – shedding its old skin, as it were – after significant time, effort, and learning, they are positioned to begin leveraging ECM by fully shifting to information management paradigms unencumbered by the limitations of the old world. Things like automatic redaction, fully automated document lifecycle control, rich and detailed metrics of all kinds, real-time data aggregation, and much, much more will be just the beginning.

In fact, no one knows the nature and extent of the capabilities that will be emerging, because unlike martial arts, there are not generations of high-level Black Belts who have been here before. The currently emerging ECM-cognizant courts are the first generation.

The next several years will be interesting and fraught with possibility. Organization, including courts, have to “learn to learn”, just as people do. Many of those who embarked on the ECM journey years ago are, after years of effort and experience, becoming comfortable with Change Management at levels never before possible or even contemplated. For adults set in their ways (and courts, as we know, have been very set in their ways), learning a second language is usually pretty challenging. But learning a new language makes learning yet another language much, much easier. Likewise, fully internalizing a new technology paradigm such as ECM makes identification of and transition to even better operations significantly smoother and less traumatic.

Macomb County Circuit Court and its peers have come a long ways. More exciting, they are in much better position to move forward with each passing step. Tipping to a majority of e-filed documents is a big one. Moving up to the darker-colored belt. Congratulations; I look forward to watching as the journey continues.

 

Data-Centric eFiling

This is Part 6 of 10 in the eFiling Blog Series, check out Part 5 here.

It’s easy to think of the key differentiating feature between traditional, paper document filing and eFiling as relating primarily to the method whereby the document is transported and received. That is, physically in traditional filing, and electronically in eFiling. And, of course, that is a key differentiating feature; but only one of many.

Beyond how the document is delivered, consider what is delivered. At the most primitive level, imaged documents – basically, pictures – can be delivered. PDF documents containing image and text are marginally better. Yes, these documents are electronic; but it’s like playing “Where’s Waldo” to find the relevant information on the page. eFiling documents in this way is referred to as “Document-centric eFiling”.

At the other end of the spectrum, there may be no document at all. Data is entered by the sender, validated, transmitted and stored by the eFiling system. Virtually all commerce on the Internet is done using a data-centric approach. The important point is that the focus is on the data, not on any particular document – and once you have validated data in a computer many other efficiencies are possible.

So why do many eFiling systems still use a document-centric approach? The answer lies in tradition. Courts are steeped in it, and the rules were developed before computers existed – so the paper document has reliably served the role as the primary communication vehicle for centuries.

Traditional documents still serve many functions. Most married couples would rather frame their wedding certificate than a URL, for instance. But where a document exists to be a vehicle for transmission and/or a repository of the data, it is simply in the way. So data-centric systems produce documents on-the-fly, when needed.

In addition, there are some very important side benefits to a Court or Prosecutor in adopting a data-centric model: 1) The recipient has reduced data entry costs (and less data entry errors), 2) The filer provides more complete data – because the eFiling system prompts and validates data along the way, 3) cases flow faster with less exceptions, 4) searching and managing cases is more productive, and many other benefits.

The spectrum from most primitive (playing “Where’s Waldo on a screen”) to most sophisticated (totally data-centric) has been labeled the eCourts Maturity Model.  The National Center provides an excellent overview by Bob Roper and Jorge Basta.  Using this model, courts can determine where they fall on the maturity spectrum.

The Maturity Model has two dimensions: First, how closely is data capture, transmission, and storage tied to documents (called the Forms/Documents Migration Dimension); and second, what is the business and technological environment of the court (called the System Characteristics dimension).

100_maturitymodel

eFiling Maturity Model
Bob Roper and Jorge Basta, eCourts Maturity Model, eCourts 2012, December 10, 2013

Along the Forms/Document Migration dimension, the spectrum runs from scanned paper (image based forms) to static PDFs  (static forms) to fixed PDF based forms with data fields (dynamic forms) to wizard-like data entry, where forms are generated later as needed (forms-free).

The Systems Characteristics include factors such as who is filing, what can the eFiling system do (what are its functions and features), how well does it integrate with other systems, how is the system designed (including whether it is based on standards), and how well can the court adapt its culture and business processes to include the new ways of doing things.

With the tremendous strides in the technological power and sophistication of not just eFiling but all court supporting technology, the real question for a court today has shifted  to where the court wants to be. While few may want to be stuck in the lower left corner, not every court is necessarily anxious to try to move all the way to the upper right (see, for example, In Praise of Tortoises). Is the court ready to let go of the paper and wet signatures? Does the court itself, or its partners, have the systems and infrastructure in place to support true forms-free filing?

The point here is that there is a long way to go on the eFiling journey. For lots of reasons, many of them covered in past pieces here, moving to pure data-centric eFiling offers profound benefits. But it takes planning, work, and commitment.  Using the eCourts Maturity Model as one tool can help structure these efforts.

Coming up next: Blog 7 of 10: eFiling Blog Series – Criminal Cases

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