Stalking the Wily Electronic Documents

I am STILL surprised when I hear that some judges question whether eSignatures can be as trustworthy as “wet-ink” signatures. In law school I somehow missed the course that conferred “expert handwriting analyst” status; but maybe that was just one of my many oversights. I mean, really? Leave aside all other arguments: How many people are even marginally qualified to determine with any level of certainty whether a signature, on its face, is “authentic”? My oft-stated position is that a passable ability to forge signatures that will endure routine scrutiny is a sixth-grade level survival skill, honed through practice on permission slips and potentially embarrassing notes from teachers.

At the October Texas Association of Court Administrators (TACA) Conference, David Slayton[1] gave an excellent presentation on e-filing. Among other things, he showed documents eSigned using “/s/” and using a graphic, hand-drawn eSignature, either of which are acceptable under Texas rules.

David remarked that he occasionally has judges question whether such eSignatures are adequate. He gets remarks like, “Anyone can type “/s/” or paste an image of a signature onto a document.” He says his answer is, “Yes, Judge; but 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. eSigned documents are simply more secure.

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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Family Circus – Jeff and Bill Keane

Not to push the Family Circus analogy too far, as there are of course many, many other important aspects of ECM with workflow; but one closely related aspect does bear mentioning. Billy may LIKE to wander all over hither and yon; but if he’s doing it every day (or if everyone is doing it), it may be time to find a more direct path. ECM with workflow will let the court know what route documents are following. If there are unnecessary steps; or if the order in which they are being processed is chaotic (or at least non-optimal), that will show up like Billy’s footprints after walking in mud.

Finally, if Billy takes the same route every day, but one day, even though he ends up in the same place, the trail is different, that’s another flag to apply extra scrutiny. If a filer always files according to a regular pattern, but a purported filing comes in following a non-routine pattern, that will signal the advisability of further checking its veracity. In large courts with many filers, such patterns are probably impossible to keep track of in a paper-based system; but an ECM receiving eFiled documents has considerably greater capabilities in this regard.

Thus, with eSigned documents in 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. Sorry about that, Judge; paper documents with wet-ink signatures just won’t do that.


[1] David Slayton is Administrative Director at the Texas Office of Court Administration. He is currently President of the National Association for Court Management (NACM).

Why Manual Paper Processes in Courts are the Equivalent of a Bad Hair Day

87_bad hair dayBeing follicly challenged (at least on my scalp), I think hair is overrated. Thus I have a limited amount of sympathy when I hear complaints about bad hair days. I like to think I’m not vain. And in that vein (no pun intended), I’m no fashion hound and am usually not critical of the appearance of others.

That being said, I really don’t particularly like looking like a fool. Likewise, I do notice when others look like fools. I assume they must not know how they look, because I assume they don’t like appearing foolish any more than I do. And, when I do look foolish, I appreciate being told.

So there I was, in a very modern hospital, with a loved one who was there for a very modern (indeed, miraculous) procedure – a full joint replacement. Everything just shrieked ultra current. This hospital (rightfully) wins awards for the cutting-edge (sorry – I couldn’t resist) quality of its joint replacement work.

And then we went to check in.

Here is how the check-in process worked:

  1. The patient dutifully gave the extremely solicitous admissions clerk the usual information, which the clerk dutifully checked against the hospital’s computer records and/or entered into the system. OK; standard fare.
  2. The clerk printed out a handful of documents filled with legal-, medical- and techno-babble and handed them to the patient to sign.
  3. The patient signed the papers and returned them.
  4. The clerk scanned every paper back into the system.
  5. The clerk put the papers into a tray labeled “SHRED.”

 

Seriously.

Now, I and many others have written and spoken at length about the waste and inefficiency of such a system. But at least, I assumed, the reasoning was based on some perceived need to retain a hard copy of a wet-ink “original.” Indeed, the efforts have largely focused on either helping people realize the rules really don’t require wet-ink signatures or, where it’s still unclear, modernizing the rules. But to send the papers directly to the shredder – oh, my!

I could – but won’t – go into a diatribe about rising medical costs. However, I think there’s another, perhaps greater, point here; to-wit:

Despite all their good work (and they DO do good work); despite the outstanding quality of their product and outcomes, this up-front, customer-facing process makes them look foolish.

My further point: Doctors and judges MUST foster trust and confidence. Therefore, they in particular cannot afford to look foolish. Those of us who serve them cannot allow them to look foolish. This type of foolish is worse than a cosmetic ruffle. To a public that is coming more and more to expect modern and efficient performance all the time, it looks, well, like it’s way past its use-by date. It makes people wonder if they are safe using it. It has the potential to undermine confidence in the system.

Maybe I’m being too harsh. Maybe there is some very good reason why, in the rendering of medical services, printing out documents, getting signatures, then shredding the originals makes sense. But even if it does – EVEN IF IT DOES – it still LOOKS terrible.

I sincerely hope courts are not allowing the same appearance; although I strongly suspect there are still some that do. Again, I can only assume that the judges in those courts are unaware of how it makes them look.

Just as most people appreciate being told if an inopportune button is loose or zipper unzipped without their knowledge, I’d assume judges would like to know if they are unintentionally and unknowingly being made to look foolish. It would be a kindness to point out the advantages of eSignature in this regard. Keeping a hard copy went out of fashion several years ago; time to update the look.

 

 

 

 

Missing the Starting Gun

“And then one day you find
Ten years have got behind you.
No one told you when to run;
You missed the starting gun.”

Time, Pink Floyd, from Dark Side of the Moon

76_starting gun

On hearing the other day of a jurisdiction that is still insisting on “wet signatures” for court documents, I wondered, “What are they going to do when the really new technology gets here?” Almost immediately, I realized that, in the timeframe in which statutory, rule and policy change exist (months and years), “new” technology is really here already; or it might as well be.

For years now, acceptance of electronic signature for court documents has advanced, albeit sometimes at an almost excruciatingly slow pace. Yet even as, one by one, the justifications for avoiding, postponing or, even worse, “backing up” e-signatures with wet signatures have been shown to lack validity, resistance persists in a shrinking, but still unfortunately significant, number of jurisdictions.

Even ignoring the money that is being left on the table (or, put another way, leeched from the judicial budget), as well as the inherent loss of efficiency and introduction of opportunity for error, there are forces at work today that present another major downside to leaving laws, rules and policies in place that inhibit full adoption and use of e-signatures. New technologies include fingerprint identification, facial recognition, retinal verification and even DNA matching (without blood). Some of these are already in use or approaching readiness for prime time. New smart phones have fingerprint identification (which is rapidly improving). Apple is reportedly working on a facial recognition interface to unlock iPads and iPhones. Within the next few years, such biometric authentication will not only be mainstream, it will be required for most security.

Admittedly, wholesale adoption of universal biometric verification is still a ways down the road. One might argue (and, in private, I might be that one) that it’s closer than you think; but it isn’t here yet. But that doesn’t mean that there’s any time left before jurisdictions can comfortably start exorcising references to and requirements for wet signatures on court documents in their laws, rules and policies.

Courts and jurisdictions that have gone through the process and due diligence of tracking down, identifying, examining the reasons for and removing (without compromising security or integrity) the almost infinite hiding places of requirements for wet signatures will find transition to the next phase of authentication much less painful. They will, in fact, be able to make the transition. Those that fail to purge those anachronistic requirements and continue to operate full or partial wet-signature processes will have a much more difficult time of it.

This fact represents one of the often overlooked risks of trying to skip or sit out a change cycle. On the one hand, you might think that you can save the trouble and expense by only changing once. Ha, ha — look at those poor courts that spent all that time, money and effort converting to newer technology, only to later have that technology be replaced by something else.

Again, even ignoring the financial and operational benefits the adopting courts enjoyed, such thinking ignores one critical reality: Usually the next cycle can only be reached when starting from a firm foundation in the previous cycle. Furthermore, obvious as it sounds, people and organizations — including courts — that have experienced change more readily embrace the need for and adapt to more change later.

Over the past several years, the financial situation of the justice system had, among its many unfortunate consequences, the effect of stifling change in many places. Now the time has come to try to get back in position to catch the next wave or risk being swamped.

Yes, that WAS the Starting Gun.

In Praise of Signatures

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To paraphrase Winston Churchill, I have been a vocal advocate of electronic signatures for a long time; and I will not now unsay a word of my advocacy.  Most statutes, rules and orders are silent or very broad as to HOW an electronic signature must be appended and represented on court documents; and many, if not all, enabling statutes, rules and orders authorizing the use of electronic signatures for courts allow for use of ” /s/ ” followed by the typed name of the signatory.  For some very good reasons, many of which I have previously noted, this approach offers flexibility while still providing the requisite level of authentication.

 That said, I think it’s important to note two aspects of signatures that are definite plusses when they can be provided with no loss of efficiency.

First, while legally a ” /s/ ” and typed name may suffice, there is something more emotionally compelling about a signature that looks like a signature. Of course, “looks like a signature” is somewhat subjective.  My signature, for example, is notoriously illegible. But it IS distinctive. There’s a reason that all U.S. paper currency bears the signature of the Secretary of the Treasury instead of just the printed name. Some documents, particularly court documents, have solemn effects.  Signatures that are clearly hand-drawn contribute to the solemnity of the document.

(At a court conference, a probate judge told me that many of the people who appear before her actually frame their judgments in cases like adoption, change of name, and sometimes estates. She expressed her belief that the hand-drawn signature constituted an important element of the emotional power of the document.)

Second, and related to the first, is the question of permanent inextricability.  If a mason leaves a plaque beside his work, the work will be identified as his as long as the plaque remains in place.  But if he writes his signature into the cement, as long as the cement is there, so is the attribution.  A lad can post a note on a tree declaring his affections, but carving a pair of initials inside a heart into the tree will be seen as a much more enduring statement.

In the same vein, there is a definite benefit to not only electronically signing a document, but permanently and inextricably binding the hand-drawn signature to the document itself. That is, rather than simply overlaying an image of a signature, which could later be removed or substituted, “burning” the hand-drawn signature into the document itself. That way, as your mother used to tell you about tattoos, it will be there forever.

It’s an easy trap to fall into to focus strictly on the mechanistic and legalistic requirements for documents when implementing paper on demand.  Indeed, in the efforts to craft the most efficient technical solutions, many implementers — with the best of intent — overlook the emotional and psychological factors that have been implicitly and explicitly utilized to assure and reinforce the impact of court documents.  The very foundation of the legal system rests on the beliefs of the public over which it asserts authority.  For that reason, it is both legitimate and valuable to continue to utilize hand-drawn signatures, permanently attached to court documents, even as the court moves to a paper on demand module.[1]

[1] TrueSign®, from ImageSoft, provides the capability to burn hand-drawn signature images into documents.

 

Irony

61_irony

Recent headlines concerning inmates who escaped jail using forged documents caused me to look back to my first blog entitled A Judge’s Secret Fear of Electronic Signatures. In it I quoted a senior, highly respected judge expressing his concern about the security of eSignature.  He said, in part,

 “My concern then and now is with the availability of others using the computer for making documents official. With the personal signature, there would have to be a forgery to make the document appear to be an original signature. The availability of a signature stamp can be regulated or precluded; however, once the computer has the signature capability, anyone with the password can access the e-file and create an authorized signature on the document. The ability to establish that this was an unauthorized signature would appear difficult.

“I also have a concern that the security system appears of doubtful reliability to preclude someone from being able to enter the system from the outside and thus be able to alter or create false documents with apparent valid signatures.

“I can envision cases where there is a great deal at risk where it could become worthwhile to prepare a false document with an apparently valid signature to secure the release of a prisoner or to effect some other act to the considerable detriment of others.”

 That discussion occurred three years ago.  Now, it seems, the judge’s fears were realized, albeit in a court in a different state.   But, the recent escape didn’t happen because of e-signatures or electronic documents.  Indeed, it appears that the forgeries purported to be original, wet signatures.

Let’s return to my original blog.  Its point was that the judge was absolutely right to be concerned with security and court managers have an absolute responsibility to demonstrate to their judges that they have addressed and are faithfully managing the technology, policies, processes and procedures to assure their ongoing effectiveness.  That the judge was unaware of the security setup in his court represented a barrier to acceptance that could, and should, easily be remedied through appropriate communication by court management.

Based in part on the judge’s concerns, in my white paper, Legal Considerations of E-Signature, I point out that security is essential in EITHER a paper-based OR a paper-on-demand environment:

“As an analogy: A treasure chest is in a vault at the top of a castle tower surrounded by a moat with a drawbridge. There are multiple safeguards. However, if the drawbridge is down, the gate is open, the tower stairs are unattended and the door to the vault is ajar, then despite all the safeguards, there is little security.

“Contrast this scenario with one in which the chest is guarded day and night by one sentry with a sword. Arguably while there are fewer safeguards, there is more security, but this scenario is problematic. The guard – however loyal and motivated – can fall asleep, be outnumbered, leave his post, and so on. It’s a risky and expensive system.

In a properly configured paper-on-demand court, every interaction with documents and files is recorded.  Anyone reviewing the files with an eye toward effectuating the type of scam that resulted in the recent unauthorized prisoner release would be leaving a trail of evidence.

Ironically, the most catastrophic possibility that the judge feared – forgery of release documentation – turned out to be not even slightly protected through use of wet signatures.

That isn’t to say that e-signature would have, in itself, provided more protection.  It really isn’t that hard to forge an electronically imaged signature either.  The point is that:

“In the paper/wet signature world and the electronic document/electronic signature world, it is critically important to carefully manage the environment, the technology, policies and procedures, and operational responsibility, and to
 audit for compliance. However, it is much harder and more expensive to do it in the paper/wet signature environment.

Foreshadowing
Looking past the irony, something else starts to come into focus.  In the recent release case, apparently all agencies – the court and the corrections division – acted exactly as required by their existing policies and procedures.  So, in a world where production of fakes and duplicates that cannot, as a practical matter, be authenticated or de-authenticated on their face, how can down-stream consumers (like prisons or banks) be certain they are acting in accordance with valid judicial orders?

Stay tuned….


To learn more about the safety and legality of electronic signature, download a free whitepaper by Jeffrey Barlow on The Legal Considerations of eSignature.

Gazing Into the Crystal Ball Part 2: Some Longer Range Implications of Universal Implementation of Paper-On-Demand Courts

54_crystal_ball-implications

Survey questions from a group looking past the next few years, beyond when Paper On Demand becomes ubiquitous in courts and the justice community have prompted me to embark on a fearless foray into mid-term prognostication (twelve years out, to 2025).  Here are a few of the survey questions, along with my answers:

Question: In what ways can you see courts managing information in 2025 that even the most advanced courts don’t do now?

 Answer:

  •  Courts will handle only a small fraction of the number of documents they do today.  For example, why have a document for a Motion to Continue?  Or an Order to Continue?  People obligate themselves for great amounts of money; undertake extremely serious commitments, make the most solemn pledges, all without creating documents.  The lack of a document does not make a commitment (traditionally thought of as “signing”) less enforceable.  In the rare instances when something akin to today’s document (however rendered – electronically, physically, or whatever) is required, it will be handled as an exception.

True, certain processes may always produce documents; but those will be exceptional processes.  Generally, information (primary and metadata) will be handled in ways that maximize their integrity, security, and usability.   Always remember: ECM stands for Electronic Content Management.   A document is just one type of container or vehicle for content – one which I predict will decline in importance and use as electronic information management becomes more seamless.

  • Virtually all performance and memorialization of binding acts (today known as “signature”) will involve a hard biometric connection.  Many technologies are coming on line to make this capability seamless; it remains to be seen which ones will become standard.
  • A consequence of ubiquitous adoption of the technology will be standardization, which, together with “shrinking world” pressures,  will be enormously accelerate trans-jurisdictional intercourse.  These trends will result in a level of trans-jurisdictional business standards (court rules and procedural law) approaching if not exceeding that of the federal courts.   

Question: Can you see any societal implications of courts using “paperless” technology as much as we think they will in 2025?

 Answer:

  •  Courts will no longer be able to remain as remote as they have historically been, because they will be connected to the rest of government and society at a much deeper and broader level.  This fact will create a major identity crisis for the judicial branch.
  • Many court actions will approach “real time” effectiveness, with both positive and negative consequences.  An obvious example is an arrest warrant for failure to appear being executed on a defendant who is passing through court security on his way to his hearing, but who is held up because of the long line at the door.

Question: Can you see necessary changes to the court’s physical plant to accommodate “paperless courts”?

Answer:

  • The obvious include less storage and elimination of need to take physical document transport into account in facility design and placement.
  • Coupled with and partially enabled by the migration to Paper On Demand,  revolutionization of jurisdictional and functional boundaries, vast preference for virtual/remote communications resulting in need for far fewer physical courts, even greater reduction in physical trips to courts, and outsourcing and/or centralization of a very large portion of court work (because electronic documents need not be processed locally), will result in  greatly reduced need for physical courts in many locations and reduced size and radically different configuration for the rest.
  • Alternative input mechanisms such as voice, motion, and – most dramatically in 12 years – brain/machine interface (BMI), together with wearable (Google Glass and much more effective successors) or direct retinal receptors will greatly alter the need for and configuration of desktop workstations.  Few people will still be working with either keyboards or monitors.

I included only a couple of examples for each question; but that hopefully will be enough to provoke some reactions.  Others will have their own answers; some, no doubt, exactly opposite my own.  That’s one of the things that makes this type of exercise fun.  The other thing, of course, is that no one can prove that you’re wrong (at least, not yet).

Look At All Those Trees

As TQM (Total Quality Management) guru William Edward Deming famously observed, 85 percent of an organization’s dysfunction is caused by its systems, and only 15 percent is caused by the people doing the work.  Yet all too often it’s the trees, not the forest, that catch the eye.

A number of years ago, I was talking with a successful and admired Trial Court Administrator (TCA) shortly after he retired.  He was helping his judges select and train his replacement, just as the court was approaching a major technology upgrade, and he related to me the advice he passed on to his successor (here I paraphrase):

 “Every new TCA can come in to any court, look around, and see dozens of things that could benefit from change.  I know you will see those things here.

 “Your instinct is going to be to start to tackle those things, because in many ways, they do need changing.

 “Nevertheless, my advice is, ‘Don’t do it.’  You need to step back and see the forest before you start dealing with the individual trees.  And you will only get one chance to deal with the forest as a forest (the court was on the cusp of a major technology initiative).   Because the real problem, and thus the real solution, has to do with the underlying systems; not the disfunctionality you are seeing at first blush.

 “When the court undertakes implementation of major new technology, which it only gets to do once in a generation, it should be concentrating on the larger system issues, not the surface-level.  If you do it right, you will find that when you have implemented the new systems, most of the existing dysfunction will disappear.  But if you concentrate on the ‘small stuff’ – the list of problems that you see – you’ll end up with the same problems you’re seeing now, only with new and expensive technology.”

 In courts, it’s easy to spot the “trees” because ironically they often show up in paper form, such as filing, storage, data entry, file movement, and so on.  The natural reaction is to address these inefficiency quickly, and with the tools at hand.  Sometimes a partial technology solution is implemented, such as imaging a particular case type, or e-filing a high-volume area, without a well-prepared vision for the “forest”.  But as too many courts have learned to their disappointment, dropping systems into place without first looking at The Big Picture is often expensive and frustrating.  On top of that, it often makes things considerably worse and sours the staff to the technology.

A forest really IS more than the trees.  There are hills and valleys, rivers and streams, animals and plants, and on and on.  It is a giant, intimately connected ecosystem.   If you focus on just the trees, your forest management is not going to be too successful.

Likewise, court document management involves a whole lot more than the documents themselves, whether physical or electronic.  Every document is involved in numerous processes, some simple, some highly complex, and almost all interrelated in myriad, and not always obvious, ways.

The term for this is “workflow”.   Experience shows that attempts to implement  Enterprise Content Management and its components – electronic documents, e-Filing, e-Signature and the rest – without carefully considering the workflow component will, at best, fall far short of expectations and need.  In many cases, it can amount to “automating a mess”, which, as we all know, results in having an automated mess.

Courts should obtain and utilize expert help to carefully map the forest of court processes and “as-is” workflow.   The courts should select “configurable” workflow tools that the court staff can maintain and adapt in the future, so that processes can be changed and the court is not completely dependent on vendors for those changes.  Then decide what the newly re-vamped forest should look like; which streams and valleys should stay; where paths and bridges should be placed and how best to manage the trees.  Finally, determine how a new system will assure realization of the desired to-be forest.

48_look_trees

 As my friend so accurately pointed out, taking care of the forest level will generally work out just fine for the trees.

Change Your Luck

I like to think of myself as a fairly positive-minded guy.  Still, just like everyone, some days I can identify with Joe Btfsplk (not a misspelling – if you don’t get the reference, Google it), the perpetually bad-luck victim with a black cloud over his head from the old comic strip “L’il Abner”.

  joe_btfsplk

 One of my favorite “Please don’t bother me; I’m busy being miserable and feeling sorry for myself” images comes from a circa 1970s commercial (Alka Seltzer Cold Relief, I think).  The ad starts out showing a hitchhiker, standing in a blizzard, sneezing and coughing.  Behind him in the snow the sign reads, “Welcome to Bangor, Maine”.  He holds a hitchhiker poster that says “Miami Beach”.  A white Corvette pulls up along side of him.  The beautiful, blonde driver rolls down the window and husks, in her best come-hither voice, “I’m only going as far as Fort Lauderdale.”  Whereupon the miserable hitchhiker, with a deep sigh that says, “Yeah, just my luck today!”, turns away from the ‘Vette and holds his sign back up to the passing cars.

Some days are just like that.

Well, sometimes I have to wonder.   Occasionally I still find court folks, including some judges, who claim that they would consider using electronic signature systems, “If only they were legal“.

Now, I will grant that there are still some anachronistic rules, orders and even obscure statutory references that can be at least arguably interpreted as preferring, if not requiring, paper documents and/or “wet” signatures.  But to not even start on the road to ECM and electronic signature simply because there may be some rules that retain old, outdated terms constitutes a completely disproportionate response.

Take, for example, the Federal Rules of Civil Procedure.  Federal courts have been using electronic documents, e-filing and e-signatures for decades now.  But consider the language of FRCP Rule 5 in the December, 2012 version of the Rules.[1]  FRCP 5 continues to use the term “paper” to mean “document”.  Here’s a sample:

 “Rule 5.  Serving and Filing Pleadings and Other Papers {emphasis added}

 (a) SERVICE: WHEN REQUIRED.

(1) In General.  Unless these rules provide otherwise, each of the following papers {emphasis added} must be served on each party:

 (2) How Filing Is Made – In General.  A paper {emphasis added} is filed by delivering it…”

One way to look at this language is to conclude that it absolutely bars the use of electronic documents and wave the ‘Vette away.

As everyone who has dealings with the federal courts knows, that’s not what happened.   The language wasn’t even changed. (Who knows how many other rules reference it.)  Instead, Subsection 5(a)(3) was added:

 (3) Electronic Filing, Signing, or Verification.  A court may, by local rule, allow papers {emphasis added} to be filed, signed, or verified by electronic means that are consistent with any technical standards established by the Judicial Conference of the United States.  A local rule may require electronic filing only if reasonable exceptions are allowed.  A paper filed electronically in compliance with a local rule is a written paper for purposes of these rules.

 In short, the rules completely changed the definition of paper to include “not paper”.  And, wisely, the particular implementation decisions are firmly placed outside the rule (“consistent with any technical standards established by the Judicial Conference”; meaning approved by the judges).  Such decisions can be made as needed, in an orderly fashion and amended or superseded as technology, court practice and other environmental factors change.

Yes, anachronisms still permeate laws, rules, processes, policies and procedures at many levels.  But that is no reason to moan and groan about being unable to move ahead.  Time to leave the black cloud behind, hop in the ‘Vette, and head for the sun.


[1] Federal Rules of Civil Procedure, December 1, 2012, http://www.uscourts.gov/uscourts/rules/civil-procedure.pdf

How Paper-On-Demand Can Provide Judges with Documents That Work “Better Than Paper” (Part Four – Electronic Signature)

I conclude my overview of what judges should require from an Electronic Content Management (ECM) interface by considering the functionality judges need to effectively, efficiently, and appropriately sign documents in a timely manner.

For reasons covered at length elsewhere , requiring judges to manually affix wet signatures to documents that are otherwise electronically stored and managed results in greatly increased cost, effort, overhead and opportunity for error. Moreover, from a judicial convenience standpoint, the ability to sign documents when they are ready, from anywhere (without waiting for them to be fetched) and having them immediately forwarded to whoever conducts the next step(s) in their processing saves immense amounts of judicial time and effort.

Briefly, some of the key reasons E-Signature benefits judges include

• Paving the Last Mile – Printing out a hard copy, getting a wet signature, then re-scanning the signed document greatly reduces the efficiency, and therefore the financial benefits, from the new system. Moreover, from a judge’s perspective, it also opens up a large and unnecessary area where mistakes, errors and security breaches can occur, all of which add up to judge’s time and effort.

This is analogous to having a one-mile stretch of unpaved road in the middle of a superhighway. Everything slows to a crawl and the potential for problems escalates. For this reason the adoption of the use of electronic signatures often constitutes “Paving the last mile on the road to a paper-on-demand court”.

• Simple and Easy to Use – The system has to be simple and easy to learn and use. The judge should be able to easily review the document, then go right to where the signature is required and apply it.

• Markup and Revision Control – E-signature with Markup Control allows judges to make changes to a document submitted for signature and then sign the revised document, secure in the knowledge that the system will track the revision, including when, where and by whom the change was made.

• Anywhere, Any Time – With paper documents, either the document has to get to the judge, or the judge has to get to the document. With ECM, the document can be available to the judge anywhere, any time.

• External Notifications – Once the judge is done with the document, the workflow component of the ECM system will route the document (with changes, signature, etc. as applicable) to wherever and whomever it needs to go. So, if the judge reviews a proposed order, makes changes, and wants to distribute it to the parties for review and approval, the system will handle it. If it should be diaried to be reviewed at some future date, the system will do that.

In summary, judges should not have to assume that moving to Electronic Content Management will require them to give up the document and file functionality so important to the effective performance of their judicial duties. They should, however, be pro-active in insisting that their requirements be clearly stated and understood. Those requirements typically include

• Instant accessibility
• Fast, Accurate, and Intuitive Navigation to the Needed File, Document, and Page
• Easy to Read
• Easy to Physically Manipulate
• Easy, Secure, Flexible Signature Capability

Judges should insist that the ECM system as implemented satisfies those requirements, not just to the standard of paper, but to a standard that is better than paper.

A Judge’s Secret Fear of Electronic Signatures

I recently accompanied a group of visitors to a court that is in the process of moving to paper–on- demand. Among other things, we observed judges electronically signing judgments. The judges all said that using electronic signature was easy and that they had no difficulty learning to use it. So far, so good. But all is not always as it first seems…

Later, the Court Supervisor mentioned in passing that the most senior of the judges we had observed electronically signing had once harbored serious reservations about using electronic signatures. In addition to being a very experienced judge, he is also a strong and vocal advocate of increased use of technology; although he is at pains to explain that he does not actually understand the technology at all.

Because I was preparing to speak to a conference of judges and court administrators, I asked the Trial Court Administrator if I could talk with the judge about his reservations and what he had learned that put them to rest. The TCA graciously agreed and the judge responded as follows:

“My concern then and now is with the availability of others using the computer for making documents official. With the personal signature, there would have to be a forgery to make the document appear to be an original signature. The availability of a signature stamp can be regulated or precluded; however, once the computer has the signature capability, anyone with the password can access the e-file and create an authorized signature on the document. The ability to establish that this was an unauthorized signature would appear difficult.

“I also have a concern that the security system appears of doubtful reliability to preclude someone from being able to enter the system from the outside and thus be able to alter or create false documents with apparent valid signatures.

“I can envision cases where there is a great deal at risk where it could become worthwhile to prepare a false document with an apparently valid signature to secure the release of a prisoner or to effect some other act to the considerable detriment of others.”

I enthusiastically and sincerely thanked the judge, telling him that his comments would be (and they were) extremely helpful to me in crafting my presentation. I copied the TCA with my reply. The TCA responded

“Jeff, you are aware that [the judge] has not been informed of the vast security aspects of electronic signature nor does he know the real details of the software or protections.”

To which I replied

“Right. This is exactly the reason I wanted to hear directly from him. Until we hear the concern, we tend not to address it, because the answer seems so obvious to us. But it is not at all obvious to judges.”

Note that, contrary to what the Court Supervisor and TCA believed, the judge – although now using electronic signatures – STILL does not trust the technology. As it happens, in that court the security is extremely well thought out and deployed; but the judge was no more aware of it than a fish in a tank is aware of the filtration system that cleans the water. Just as the tank water is safer and more carefully monitored than an open pond subject to random pollution and other natural disruption, the electronic signature is far more safe and secure than the “wet” (not to mention the stamp!) signature.
The point here is that those of us involved in deploying technology often miss the fact that many of the stakeholders, and probably particularly judges, are unaware of much of what is done to provide them with the environment necessary to enable them to do their difficult jobs, because they are rightfully focused on doing those jobs well.

When I made my presentation, I included a high-level section addressing the safety and efficacy of electronic signatures. Following the presentation, several judges and administrators commented specifically that they had colleagues with exactly those concerns, and that they would use the presentation to make them aware of the how electronic signatures, properly implemented, are not only safe, but safer than “wet” signatures.

Just because no one is saying out loud that they have doubts about signature security, do not assume the doubts have disappeared. Probe just a little and you may find they are far more widespread than you suspect, even among your supporters. As signature security is one of the great strengths of electronic signatures, the chance to address these concerns is a potentially large opportunity to advance your court’s move to and adoption of electronic signatures.