eFiling is Coming Soon to your State – The Advantages of Mandatory vs. Permissive eFiling

By Brad Smith, Senior Justice Consultant, ImageSoft

When I started working on my first state and local court electronic filing project in 1998, I truly felt that it would be adopted much like computer assisted legal research offered by LexisNexis and Westlaw.

Here we are, nearly 20 years later, and state and local courts are finally dipping their toes into the eFiling water. iStock_000011704687_Medium

Unlike the Federal Courts CM/ECF (Case Management / Electronic Files) system which started mandating electronic filing in the early 2000s, state courts have struggled with adopting electronic filing, let alone making the decision to mandate eFiling for civil and criminal cases.

Texas launched an eFiling portal in 2003, which allowed for permissive eFiling on a county-by-county basis. What the state realized after 10-plus years of “go-lives” and an 18 percent adoption rate, is that permissive eFiling is a nightmare for the attorneys, Clerk of Courts offices and the judges.


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For the attorneys and their staff, it becomes very difficult to keep track of which cases or jurisdictions allow for eFiling and which do not. For firms operating statewide in Texas, for example, that would mean your legal assistants / paralegals would need to monitor cases in all 254 counties.

For Clerk of Courts, permissive eFiling presented challenges as well. The office processes an incredible number of cases each year and workflow is critical to keeping the court records accurate and available to the public, attorneys and judges in their jurisdiction. In the permissive environment, the clerk’s staff now needs to operate both a paper workflow queue and an electronic workflow queue to maintain the court records, which adds time and complexity to their jobs.

Even judges, who traditionally use paper court files even when their clerk’s office has taken the time and effort to scan over the counter filings, do not have timely access to electronic court records in a permissive eFiling environment. The steps that are required to convert paper pleadings into electronic images (intake, scan and file) can take up to 24 hours, while eFiled pleadings processed by the clerks’ staff are immediately accessible to the judges via their document management system or judicial dashboard.

The Advantages of Mandated eFiling

Just in the last four years, Florida (Civil and Criminal) and Texas (Civil) have mandated eFiling, while Indiana and Illinois have released mandatory eFiling schedules for 2017 and 2018. While it’s not surprising news by itself, the fact that these mandates are taking place in states that do not have a statewide case management system is encouraging.

It is my hope that the next wave of states in the early eFiling planning stages use the lessons learned by their Supreme Court / Administrative Office of the Courts colleagues and bypass permissivie eFiling to move straight to mandatory eFiling, which will benefit all stakeholders involved.

Which approach has your court considered?

 

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.

 

eFiling: Audit Trail and Confidentiality

This is Part 10 of 10 in the eFiling Blog Series, check out Part 9 here.

To conclude this eFiling series, let’s look back at a few pieces posted in the past that dealt with the enhancement of both the audit trail and the control over confidentiality offered by eFiling.

Audit Trail

One of the fun pieces I wrote, inspired by a presentation David Slayton, included an explanation of the audit trail provided by a good eFiling system.

[David] says … “… I know EXACTLY where the document came from, and whose profile was used to send it.” Knowing that a document has come from the right place, and knowing whose secure profile was used to send it, constitute security orders of magnitude greater than a written signature on a piece of paper…

Taking David’s point a step further, in an appropriately implemented Enterprise Content Management (ECM) with workflow system, not only do you know where the document came from, you know where it’s been and where it’s supposed to be going. It’s like Billy’s trail in the Family Circus: it leaves its tracks. It keeps track of who has looked at it and when. It keeps track of what was done to it, by whom, and when. And, unlike Hansel and Gretel’s breadcrumb trail, it doesn’t disappear.

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…. [I]n a properly implemented ECM with workflow system, not only do we know that the document comes from who it’s supposed to; we know whether or not it’s been altered since it was sent, who has touched it, where it’s been, where it’s heading, whether it’s behavior makes sense, and if not, what would make better sense.

Stalking the Wily Electronic Documents, January 12, 2015

In another piece, I got to use one of my favorite pieces of doggerel (“Last night I saw upon the stair/ A little man who wasn’t there…”) to illustrate how a well-designed ECM system provides auditable Record Integrity:

A reliable document Chain of Custody in the paper world is merely a means of attempting to protect the Principal of Integrity. (Albeit an expensive, labor-intensive, highly unreliable, almost-never-completely followed means). Even with special viewing areas and monitors, do courts control ALL access by ALL staff, ALL attorneys, and ALL judges, not to mention cleaning and security staff? Not usually.

ECM provides a built-in mechanism for maintaining an audit trail of the Chain of Custody for court documents, providing end-to-end assurance of document integrity. ECM users view documents on screen and don’t come in contact with the physical file. From identity and signature authentication (when needed) at the front end, through tracking who accesses each document and when, to ”locking out changes” to prevent tampering, ECM absolutely protects document integrity…

Proving the Negative, October 3, 2011

Confidentiality

Confidentiality has several aspects. There’s things like judge’s notes, intended only for the judge or designated persons. Then there’s confidential information, like Social Security Numbers, minors’ names, abuse victims’ addresses, and so on, contained in otherwise public documents. There are totally confidential documents, like Secret Indictments. There are confidential case types, like some juvenile matters or adoptions, where the entire case is confidential.

eFiling and ECM provide greater control of confidential information, at all levels of granularity – from individual data element to entire case. Who can see what can be tightly controlled and administered. So, for example, attorneys on confidential juvenile cases can see their clients’ files, but no others. Court employees and judges with clearance can see confidential data that has been redacted using automated, workflow-enabled tools making it invisible to unauthorized persons.

However, as I noted in the March 14, 2012 posting,

This does not mean courts should not carefully review and, if required, modify rules and statutes to make certain there are no unpleasant surprises … The paper-on-demand court environment IS different than the hard-copy environment. The area of Public Records discoverability has wrinkles in the paper-on-demand environment that never arise in the paper world…

… Recommended best practice:

1) Ensure that disclosure rules call out both electronic and paper work product as their own non-disclosable category of information;

2) Maintain the non-disclosable work product documents in separate document types from formal court records, with security configuration that prevents viewing by unauthorized system users; and

3) Support electronic document annotations that don’t technically alter the original document and have their own security distinct from the document

Assuring Judicial Work Product Confidentiality in a Paper-On-Demand Court, March 12, 2012

While the business case for eFiling generally emphasizes the savings, convenience, work process streamlining, and quality improvements, the benefits of having a robust, easily managed audit trail and greatly enhanced control over confidentiality certainly should not be overlooked as additional “low-hanging fruit” when moving to eFiling and ECM.

Electronic Filing: Law Firm Considerations

This is Part 9 of 10 in the eFiling Blog Series, check out Part 8 here.

 Ten to fifteen years ago, some of the strongest advocacy for the rather radical idea of eFiling came from large law firms. While smaller firms had some serious doubts as to “what was in it for them”, larger firms had already learned (sometimes against their initial will) some major lessons from dealing with the then-nascent, mandatory, federal eFiling system. The biggest of these lessons may be loosely summarized as “eFiling is easier, cheaper, and more reliable than paper filing.”

Today, my technophobic wife, a long-time legal secretary, becomes frustrated and annoyed when she has to file a matter with a court that has yet to adopt eFiling. So much for the “It’s too complicated, too cumbersome, and too difficult” rants that I used to endure at the inception of eFiling.

69_mrs wormerRemoving the logistics of physically getting documents to court constitutes, in of itself, sufficient reason for law firms to appreciate eFiling. Firms are able to file from anywhere, at any time, immediately, and without sending anyone to the court or waiting for land mail to (hopefully) make its way to the destination. Even when “convenience fees” help fund the system, any fair accounting will rapidly conclude that the firm savings in staff salary, postage, and courier expense significantly mitigates, and probably exceeds any surcharge.

But the advantages (and cost savings) extend far beyond simply getting the documents to court. Most modern, robust eFiling systems also include automatic notice and confirmation of filing (or notice of rejection, to alert the firm there is a problem). The need to wait for a confirming postcard and then connect it with the file (all of which chews up more staff time) is eliminated; not to mention the potential for malpractice claims.

Moreover, the e-service capabilities of most modern eFiling systems probably generate even more dollar savings than the court filing piece. In two party cases, the savings will be significant. In multi-party cases, the savings can be extremely large. Again, the savings accrue on both ends of the transaction: On already filed cases, service on all parties is automatic. Moreover, confirmation/proof of e-service is ALSO automatic.

For firms doing bulk filings (like collections and small claims, for example), and for multi-party and class action matters, the entire process of claims and case handling can be streamlined along entirely new models.

There are, of course, some important areas of which firms must be aware and provide due diligence. With eFiling comes a host of new court rules. Where a firm deals with just one court, knowing that court’s rules and aligning the firm’s processes with them will take some effort. (As an aside, automated workflow can be of tremendous assistance.)

Far more common will be firms that deal with multiple courts. While there are various initiatives to achieve some form of standards, the fact is, just as has historically been the case, that it seems like no two courts do things exactly the same way.

Even courts using the same eFiling system may (and probably do) have differing rules. When filings are deemed received may be different. Rules for re-eFiling rejected filings may be different. Fee amounts may be different.

The same thing applies if a court is using an Electronic Filing Manager (EFM). While the actual mechanics of filing will be pretty similar for each court despite possible differences in their eFiling systems, each court is going to have its own set of rules. And as we all know too well, courts can be VERY sticky about insisting on adherence to their variation, no matter how obscure.

Fortunately, documentation, training, and “help desk” support has gotten very good. Many courts offer Continuing Legal Education sessions (with credit) for training and updates, and/or refreshers on the ins and outs of eFiling. Law firms should take advantage of it all and not skimp on staff (including attorney) training.

I expect that my wife reflects the typical view of law firm staff when she energetically (and without prompting from me) declares that she would never go back to the days before eFiling.

Coming up next: Blog 10 of 10: eFiling Blog Series – Audit Trail and Confidentiality

 

eFiling in Criminal Cases

iStock_000004326573MediumThis is Part 7 of 10 in the eFiling Blog Series, check out Part 6 here.

As eFiling has taken root and come of age over the past several years, my sense has been that the majority of deployments start in, and sometimes never go beyond, the  non-criminal case types (civil, family law, probate, juvenile, and so on). Traffic cases may sometimes be an exception; but in those instances, the impetus usually starts on the law enforcement end with eCitations, which are sent to the court. Too often missing are felony and misdemeanor case processing, which continue to operate in largely paper document-centric processes.

While there are no doubt lots of different reasons why eFiling of criminal cases may lag, the temptation is to follow Deep Throat’s admonishment to “Follow the money”.

Earlier in this series, Funding eFiling – Selecting a Strategy discussed the importance – and implications – of the eFiling funding strategy. To recap the “Three Rules That Are Always True”,

  1. eFiling systems are NOT FREE, either to acquire or to operate;
  2. Someone is going to have to pay for it;
  3. Each strategy has important direct and indirect costs, benefits, and implications.

As discussed, one model involves the court paying for the system, making it essentially free to the filers. That model depends on the ability and willingness of the court’s funding authority to provide the up-front, as well as on-going, funding.

Where this model is used, the tremendous leverage in process improvement and efficiency within the court and across the related agencies – prosecutor, law enforcement, corrections – generally encourage rapid adoption of eFiling of criminal cases. From the standpoint of the funding authorities, in addition to the non-financial benefits, the cost savings incident to eFiling result in recovery of the budget dollars invested.

Where the court cannot obtain funding except from filers, Rules One and Two rear their unwelcome heads. Traffic citations can sometimes work, because often it is possible to tack a fee onto fines to fund the system. But as is discussed in Funding eFiling – Calculating the Cost, getting the extra money from criminal defendants is generally not a tenable option.

Thus, prosecutors and police agencies, while they would love to have the benefits of being able to eFile, are not willing to pay eFiling fees in the same manner as the attorneys for civil litigants. That model simply does not work very well for criminal cases, as the prosecutor’s “clients”, the law enforcement agencies who bring them cases, are in no better position to pay fees for their submissions to the prosecutor.

Allowing this stalemate to continue is painful, like watching shy and inexperienced junior high kids at the school dance. Somebody needs to get these people together! In many ways the already tight and pervasive integrated workflow among and across the agencies, the capabilities offered by eFiling to integrate with the various agencies’ Case, Document, and Records Management Systems, and the efficiencies to be gained from the data-centric nature of robust eFiling systems provide more benefit than civil eFiling.

One solution successfully utilized in a number of places involves inter-agency cost sharing for the backbone of the eFiling system. Filings, data, and documents can flow electronically from agency to agency. Using industry standards, the data-centric filings and communications can feed each agency’s workflow engine and can alleviate duplicate data entry both within each agency and across the justice system.

eFiling and related technology particularly tailored to each agency – the court, the prosecutor, law enforcement, corrections/jail – can further leverage the value of eFiling for each agency. Extensions to facilitate officer data, for example, can streamline filings from the police to the prosecutor. Data security can be robustly protected beyond that possible in a paper document-centric environment.

Over four years ago I suggested that eFiling would be particularly productive in the criminal area. Subsequent events, progress, and increased technological sophistication have only made the case stronger. Joining together, the justice agencies can create enough internal savings to “self-fund” eFiling in their arena.

Coming up next: Blog 8 of 10: eFiling Blog Series – Case Bind Over/Appeal

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).

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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

Workflow – The Life of a Document After Review

This is Part 5 of 10 in the eFiling Blog Series, check out Part 4.

flintstonesAn image I use to describe eFiling without automated workflow is Fred Flintstone’s car: it looks automated; but somehow the driver is still doing all the work. From the filer’s perspective, once a document is filed, electronically or otherwise, the “processing” fun is over. But from the court’s perspective, receipt and acceptance of the document initiates an interconnected flow of activities, including identification, recording, and routing it across tasks, processes, and procedures through its lifecycle. This flow of activities is generally known as “workflow”.

Each workflow step has three basic parts. First, what it is. Second, decide what to do with it. Third, transport it to where the next step must be performed. With electronic documents, the third step obviously gets a lot easier, since the document need not be physically transported. But what about the first and second steps?

Consider for a moment the distinction between “Discretionary” and “Ministerial” decision-making. Discretionary decisions are those where the decision maker weighs the information and, based on his or her knowledge, experience, and authority choses which outcome or action would be most appropriate. Ministerial decisions, on the other hand, are those where the outcome is to be decided based on a set of rules known to the decision maker. A judge’s bail decision is discretionary. A traffic court referee’s determination of a fine amount, being based on a formula, is ministerial.

Discretionary decisions made by qualified people provide the “value added” in knowledge-based service industries like courts. In other words, that’s what the public is willing to pay for: well reasoned decisions.

When it comes to ministerial “decisions”, like where to send a document for the next step in a business process, while the rules may be complicated, following them does not require judgment; only knowledge of the rules.

Paradoxically, the more complicated the rules are, generally the more qualified is the person who must make the “decision”, both because that person is more likely to know the rules and because that person may be deemed more trustworthy to correctly follow them.

The result is that courts generally expend an enormous amount of their most valuable human resources on ministerial tasks that could be performed by anyone sufficiently versed in the rules. Meanwhile, those resources are considerably less available to provide the much higher value-added activities for which they are qualified. Indeed, in most courts, more time and effort goes into figuring out what to do with documents than is spent actually working with them.

Implementing eFiling, with or without also implementing automated workflow, certainly confers major benefits on the filers. From the court’s perspective, though, all other benefits pale before the benefits from implementing automated workflow.  A few years ago I wrote in a white paper:

“Where potential workflow improvements stand out, they tend to stand out impressively. Filing incoming mail, for instance, is a critical task requiring a high level of business knowledge. The individual performing this task must know how to “route” each incoming item (and often several items in one submission must be dis-aggregated and routed to separate locations), sort them into piles, then assure they are accurately fed into whatever distribution process is used to physically move them. In a system with properly implemented workflow, the document (usually self-identifying), once entered into the ECM system, will be automatically routed to the correct place.

“The first key savings is the time of the knowledgeable staff who no longer have to individually assess and route each document. Next is Elapsed Time savings: delivery can go from days or weeks to minutes. Then there is the savings not only of the reduction of lost and misrouted documents to near zero, but the elimination of the need for redundancies and safeguards that are commonly in place to deal with those errors when they inevitably happen in the paper document world.”

Short-Term Payback and Long Term Gain from Transitioning to a Paper-On-Demand Court, Jeffrey N. Barlow, 2011.

Yes; eFiling can be implemented without automating workflow. But it makes no sense.

Coming up next: Blog 6 of 10: eFiling Blog Series – Data Centric eFiling

 

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