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

Still Want Those Printers? Ask Benjamin the Donkey

“Benjamin the donkey… would say … that God had given him a tail to keep the flies off, but that he would rather have no tail and no flies.”

From Animal Farm, by George Orwell

A friend complained to me about the succession of problems with her printer. It was when she started telling me how important her printer was to her that I began to reflect on the insightful, if cynical, observation by Orwell’s donkey. Who knew he was a systems analyst?

When dinosaurs roamed the earth and I was a young systems analyst, courts were just learning that unless printers were made readily available, users simply would not use them as intended. Eventually, courts figured out that if people had the choice of electronically creating their output, followed by having to leave their desks to go to a printer down the hall to retrieve it, they’d simply write it out or type it instead. Thus court management (reluctantly, in view of the price) purchased and installed a lot more printers because of the strategic importance of getting everyone to maximize use of the systems.

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Now, every tech support person knows that printers, however necessary, are the Devil’s work. Trouble tickets regarding printers are probably more frequent and more frustrating than just about any other kind. But, thank heavens everyone has those printers.

Because they need those printers for… for… Well, yes, there are some things they need the printers for; but they sure aren’t the same things they needed them for 20, ten, or even five years ago. The fact is that managing content electronically changes both the tactical and strategic importance of printers. Courts should give some attention to both.

Tactically, it’s almost like Benjamin gets his wish for no more flies. Or at least a lot fewer of them. Thus, every printer acquisition and placement should be made in view of the need to print in a court with fully implemented Electronic Content Management (ECM). Analysis will probably show need for fewer, less powerful (at least locally), and less expensive printers. Acquisition and maintenance cost of printers should be expected to drop.

Strategically, the objective should be to have the minimum possible distribution of printers. Simply stated, minimizing the amount of paper documents goes a long way toward maximizing the effectiveness of ECM. In instances where printing a document may appear to be a better, faster, easier or more efficient, the court should stop and more carefully analyze the situation.

Pete Kiefer, of Maricopa County Superior Court and leader of NACM’s Court Futures project, reminds me that that in cases such as this, application of The Five Why’s would be in order: Asking iterative questions to get to the root reason(s) for the perceived situation. For a first iteration I suggest, “What causes printing a document to seem a better solution in this case?” Almost always, upon consideration of all factors, printing paper documents turns out more expensive, less efficient and disruptive to the overall process.

Whether, in the face of a 95% plus drop in the fly population, Benjamin (curmudgeonly cuss that he was) would actually have had his tail bobbed, one will never know. If he resisted for fashion reasons, absent other consequences he could be given a pass. But if it markedly impacted his personal hygiene, bring on the clippers. Likewise, if the only consideration with where and how to use printers were people’s comfort with paper, so be it. But, really, the stakes are much more strategic.

 

 

 

 

 

Confronting Court Document Retention Policy in the Era of Electronic Content

88_document retentionIn Animal House (one of my favorite movies), the trial scene has its own instructive moral. The Dean, through his smarmy hench-students, hauls the fun-loving and rule-oblivious Delta brothers into Student Court to answer for their “too numerous to name” peccadillos. The allegations are (or would be, if allowed to be heard) supported by extensive evidence, for the simple reason that most are true.

The “defense,” if it could be called that, consists of asserting that the charges REALLY constitute an attack on the American way of life.

Sounds ridiculous; and it is. Except… who hasn’t been involved in a discussion where, just as the group begins to close in on a solution, someone attaches an almost completely unrelated set of concerns and insists that those must be resolved before moving forward?

This principle came to mind as I listened to an excellent presentation at a court conference on revising and implementing policies and procedures for purging documents and files as courts move to paper on demand.

Consider: Most “legacy” record retention policies (and most record retention policies today are legacy) were promulgated at a time when the primary concern was storage space, or more accurately, the cost and lack thereof. The policies were primarily intended to make sure that records that might one day be needed again not be prematurely discarded. Indeed, most policies required that important records be indefinitely, if not permanently, retained.

Also, there is a stark difference between records retention in the commercial world and the courts, and the lines are often mistakenly blurred. In the commercial world information can be a discoverable liability, and in many cases should be purged as soon as possible. In the courts: justice, public safety and service are the primary goals, and purging is often an inhibitor.

Tellingly, there was little or no “requirement” to purge (absent case-specific court orders).

Most courts, in my experience, only embarked on purging documents when space constraints forced the issue. Otherwise, little, if anything, was ever actually destroyed. Instead, documents and files were moved into increasingly difficult to access deep storage. Generally, the difficulty was thought to be the effort required to actually go through the documents and files, identify (and confirm) what is eligible for purge, physically remove them and then securely dispose of them.

Fast forward to the present. For starters, the question of physical space is no longer an issue to paper on demand courts. Granted, there are cost and process issues with long-term content storage; but they are most certainly NOT the kind of current constraint and the level of expense providing physical space to store paper.

More importantly, using paper on demand with configurable workflow, all the identification, verification and actual purging problems can be managed in a relatively straightforward, efficient, flexible (in case rules change) and economical manner.

So, problem solved, right?

Hah! If you believe that, then I’ve got this great deal on Alaska gold mining stock, if you’re interested….

Thanks for solving the problems; but it now turns out those aren’t the problems that are at the top of anyone’s list these days. What do you MEAN you can afford to keep everything forever? People have a RIGHT to have old matters go away…

In fact, one of the many consequences of loss of the “effective inaccessibility” of paper documents is a fundamental conflict between those with an interest in keeping access to everything permanently and those with an interest in making the information as inaccessible as possible, as soon as possible.

One (fairly standard, I’ll bet) interim policy is to “publicly” delete, but internally retain (for those with authorization). Let the Rule Drafting begin for THAT one!

So, on this subject, I line up with the Deltas: We’re probably having the wrong discussion. Document “retention” and “purging” are really anachronistic concepts in an era of electronic documents and ECM. What would be far more constructive, in my humble opinion, would be to discuss how to appropriately manage all aspects of content lifecycle – including the “post-active” phases – in a paper on demand world, develop appropriate policies and design the enabling systems to allow ongoing management of content lifecycles using modern tools.

 

 

Armor Up: Electronic Court Tools for Judges

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

And I thought, “Hmmm…”

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

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

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

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

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

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

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

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

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

and much more.

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

A Horse is a Horse, Of Course, Of Course…Unless It’s an Electronic Document

When the locomotive first appeared, and for some time thereafter, it was commonly called “The Iron Horse.” The use of “horse” certainly helped cast the new technology in terms people who had grown up in a horse-drawn society could understand.

85_horseHowever, while locomotives performed functions once performed by horses, they were not, in any sense, mechanical horses. To the extent the terminology suggested that the new machines were simply faster, stronger, more efficient versions of horses, that terminology interfered with clear understanding of the transition and its future implications.

I wonder if the domain of content management is not currently experiencing a similar sort of language-induced interference with clarity of vision. Specifically, I am more and more seeing the term “Electronic Document” in about the same way as I see the term Iron Horse. Why would one try to make a locomotive look, act or operate like a horse? Why would one try to make electronically managed information look, act or operate like a piece of paper?

I recognize the obvious reasons: People are used to it; existing laws, procedures, standards, practices, etc. are built around it; and there is a huge, existing infrastructure and legacy. OK, but we’re rapidly working our way through and past those challenges. The fact is, those are transition considerations, not fundamental aspects of content management.

As Electronic Content Management (ECM) with configurable workflow rapidly permeates society in general, and courts in particular, it is becoming clear that we are in a major transitional period when it comes to documents. Documents are not simply being transitioned from paper to electronic form. More accurately, and far more important and profound, documents are being “unbundled.”

For those not familiar with the term, unbundling in a process sense refers to separating previously connected services, products or processes. Paper documents historically bundle numerous separate, although often related, functions. A few of these include:

  • Carrying information –– For example, a pleading or a grocery list.
  • Preserving information –– For example, a judgment, a receipt or a historical account.
  • Triggering action — For example, a notice or an order for action.
  • Acting as a token –– For example, a plane ticket, a Release Order or a Warrant.
  • Possessing an existential value –– For example, a $100 dollar bill, an original will (because of its direct physical link to the decedent) or an original manuscript (because of its direct link to the author and its historicity).

In the new ECM world, best practices now “decouple” information from documents. Documents, whether paper or electronic, are no longer essential to carrying information, preserving information or triggering action. Rather, well-designed ECM with configurable workflow works far better, with far greater control, at far less cost.

Creating electronic versions of documents ancillary to, or after, these processes is totally feasible; and most, if not all current systems can do it. Yet it is becoming increasingly clear that such artificial documents, whether rendered on paper or maintained electronically, are simply superfluous. The image of a horse attached to the front of a locomotive may look impressive, but it doesn’t do a thing to improve the locomotive’s operation.

While many documents are rendered unnecessary through ECM with workflow, some still serve other purposes. Despite smartphone and wearable technology that can render most tickets unnecessary, there will be need for tokens for a long time. And, some documents will always have an existential value.

Nevertheless, just because this is so does NOT mean that the old rules, practices and infrastructure relating to documents in general should be merely adapted to assume that previously paper documents may now be electronic. Just because we still have horse shows, riding clinics, and cowboys does not mean that every city street still needs hitching posts and water troughs.

From here on out, courts will be managing content, not documents per-se, electronic or paper. The Post-Document era is upon us.

Courts and the Network of Everything

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

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

 

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

Regarding social media, much discussion centered around:

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

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

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

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

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

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

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

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

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

Who Is That Lurking in the Shadows?

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One of the difficult, but necessary, aspects of successfully migrating courts to paper on demand is tracking down and making appropriate changes to anachronistic laws and rules that require, or are perceived to require, paper. I had assumed that the primary challenges were a) identifying them; and b) getting them appropriately changed. Never did it occur to me that another, perhaps even greater, hurdle would be direct opposition, masquerading as public service, from special interest groups with a vested interest in halting and rolling back the progress toward paper on demand.

Seems I was being overly naive. A group called Consumers for Paper Options is working hard, and having success, in getting laws passed that require the use of paper. In some instances, they have succeeded in requiring a return to the use of paper. The new laws, it seems, are necessary because paper on demand has proved to be so much more economic, efficient, secure, and convenient that paper simply can’t compete.

Who would take such a position? Hint: What did Deep Throat tell Woodward and Bernstein?

Follow the Money.

In an article last month in the Washington Post entitled “Group tries to slow federal government’s move away from paper,” Lisa Rein reports on the activities, strategies, successes and underlying sponsors of a group called Consumers for Paper Options. The group purports to support seniors and others it claims are being “disenfranchised” by the move to paper on demand. Its modest suggestion is that everyone should get everything in paper, unless they specifically request otherwise.

And who ARE these public-spirited folks? Well, they don’t exactly tell you on their website. Ms. Rein, however, discovered after some digging, that the backers of CPO are the paper manufacturers and distributors.

It seems that the efficiencies and cost savings accruing to businesses and taxpayers are putting a serious dent in the sales of paper. For example, Rein reports that

“At [The] Treasury [Department], which last year suspended most paper mailings for all but the very aged and those with “mental impairments,” officials estimate the shift will save $1 billion over 10 years. The move by the Social Security Administration in 2011 to stop mailing paper earnings statements to 150 million Americans is saving $72 million a year.”

Meanwhile, Reins reports that the demand for paper products dropped an average of five percent each year for the past five years, according to industry analysts. I’m guessing that the demand for paper plates and cups, playing cards and toilet paper has remained pretty steady. So I’m leaping to the conclusion that a good chunk of that five percent is document-related.

Think the business case for something like e-Filing could survive specious argument? Well, consider this example (non-court related; but illustrative, I think):

” Late last year, Consumers for Paper Options scored another victory when Rep. Michael H. Michaud (D-Maine), working with the American Forest and Paper Association, used his influence to have language removed from a pharmaceutical bill that would have ended the practice of printing prescription information and inserting it into drug packages, instead requiring that it be posted online. The Food and Drug Administration has been pressing for the change, which the agency says would save money and ensure the information is up to date.”

Remember that, every time you recycle the half a bag of paper that comes with your prescription. And PLEASE don’t complain about the high cost of drugs.

Seriously, I’m betting that these folks don’t advertise their presence and involvement in legislative and rule making affairs. Call me paranoid: I AM paranoid. As courts and the justice system move more and more to paper on demand models, some of those savings are going to be coming out of the pockets of the public-spirited backers of CPO. My Business Law professor told us, at the outset of his course, that people really only get terribly interested over either sex or money. And of the two, money is infinitely more interesting.

So, when proposing those changes, try not to get blindsided. Because it’s a good bet that CPO is interested.

Continue reading “Who Is That Lurking in the Shadows?”

Court Document Retention

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In the interest of full disclosure, let me say, up front, that I believe both ends of the Court Document Retention discussion will be laid to rest and ultimately forgotten over the next five to 10 years, if not sooner. By “both ends” I mean, first, the question of “In what medium (paper, microfiche, or digital) should court records keep particular documents?” and second, “What to do with court documents (regardless of medium) once the retention period expires?”

My reasoning is that societal and governmental trends vis-a-vis public records (and I think, particularly, court records), are rapidly and inexorably moving toward requiring perpetual retention of all documents, particularly as storage costs continue to shrink.

Notwithstanding my (admittedly rosy) prediction though, that is not the world courts live in today. Consequently, there is a lot of effort being expended to remove the paper/michrofiche requirement barrier. As previously discussed, that can’t happen too soon .

Beyond the anachronistic medium requirement, under current laws and policies, courts are going to have to continue to manage which documents to keep and for how long. And rarely considered, but extremely costly, is the flip side of document retention: document purging and disposal once the retention period expires.

Every court knows the pain, expense and conflict involved in purging documents. With paper documents, even the best systems are highly labor-intensive, and usually involve multiple checks, verifications and quality controls to assure that nothing is inadvertently purged that should be kept. First, there is the management to keep track of when files and documents should be purged. It’s not as simple as a one-time calendaring at the case’s conclusion: What if something else happens in the case later to extend the time?

Once identified, in some instances, some documents must be physically removed from the case file while others are left in. In others (if not all for some case types), someone must go through the entire physical file to make sure there is not some “keeper” filed inside by mistake.

Then there’s the question of what to do with all that paper. (By the way, microfiche, being also physical, has corresponding problems). You can’t just toss it in the recycle bin — there are confidentiality considerations. If you outsource (a common solution), the service provider usually has to be bonded, provide security assurances, etc. And, ahem, they charge…

A dirty little secret among many courts is that they don’t actually purge until they have run out of storage space, because the cost of storage space, while not insignificant, is a lot less that the cost of purging in a legally and procedurally acceptable manner.

Given these factors, consider this: Every paper document a court receives or keeps — even if the court does absolutely nothing with it — is creating a downstream expense. Think you’ll move to an Enterprise Content Management (ECM) system and then just go digital “Day Forward”, leaving as many old, sleeping paper dogs (I mean documents) to lie? You might want to take into account what those documents are going to cost to get rid of.

One of the major benefits of ECM, and one that I think gets far too little credit in up-front financial business case development, is that it massively cuts the cost of compliance with the current requirements for document purging and destruction. From the time of receipt or creation, the document can be managed for retention, and ultimately, purging. If the policies change, no problem; the workflow process will be changed and the document correctly managed under the new rules. When the time comes to purge, varying levels of review can be selected and administered. Destruction itself can be securely accomplished, monitored, documented and later audited.

While courts are permitted/required to purge and destroy old documents (and no one but me is predicting that won’t be forever), that fact in itself provides huge, if not independently sufficient, incentive to move as expeditiously as possible to ECM.

Channeling Ben Hogan: How eFiling Helps Improve Court Data Entry

One of the classic urban legends of golf goes like this:  An amateur once asked, I believe, Ben Hogan, “How can I increase my percentage of one-putts?”   To which Hogan famously replied, “Hit your approach shot close to the hole.”

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With that broad hint, consider the following trick question:

Question: What is the best strategy for managing court data entry?

Answer:  A) Improve speed.

                B) Improve accuracy.

                C) Reduce Cost.

                D) None of the above

                E) All of the above (including “D”)

The correct answer, of course, is E.  The best strategy for managing court data entry is — Stop doing it.

Hogan’s point was not that there aren’t better ways to make a putting stroke.  And you can believe Hogan knew them all.  His point was, the object of the game is not to hole long putts.  The object is to hit fewer strokes.  Improve your putting stroke all you can; it’s still not as good as having a gimmee after your approach shot.

Likewise, while there are lots of ways to improve court data entry, the objective is to get the information into the court’s data base in a timely manner with as little effort, cost, and chance of error as possible.  In golf, if you can get the ball in the hole without putting (as, say, with a hole-in-one), that’s considered pretty darn good.  For courts, getting data into data bases without data entry is also pretty darn good.

Enter robust, full-featured electronic filing with workflow.  I don’t have to take a position on the question of what constitutes the best or most important aspect of court e-filing.  In golf, some golfers need work on their long game; some on their wedges, etc.  For some courts, cost savings will be most important; for some it will be speed and efficiency; for some it may even be raising revenue by charging attorneys, who benefit greatly from being able to e-file.   I certainly do not minimize the importance of these and numerous other benefits.  But whatever the primary benefit, removing the data entry burden from court staff unarguable gets the ball closer to if not in the hole.

When correctly implemented, e-filing constitutes a win-win situation when it comes to data management.  In today’s world, virtually every document that is filed (at least by attorneys) is created in electronic format.   Thus, just for starters, the e-filer does not (absent anachronistic rules; a topic for another day) need to print out copies to file.  While it may be necessary to enter address, type, and other meta-data in particular places to effect e-filing, this is NOT meta-data that the filer wasn’t already entering in the first place.  In other words, the tasks on the front end may look different (to the extent they are still necessary); but they are not additional or new.

On the court (receiving) end, though, the difference is dramatic.  E-filing with workflow can reduce the court staff’s data entry tasks to quality control — analogous to a six-inch putt instead of a thirty-footer.

Over the past several years, many courts have followed a “staged” approach to implementing Electronic Content Management (ECM) in which the first stage is to move internally to ECM while still receiving filed documents as paper, then scanning them into the court’s ECM system.  As an implementation strategy, this often makes a lot of sense.  It’s sort of like learning to get real good at “lag” putting, to leave the long putts close to the hole.

For such courts, moving quickly on to e-filing should be a top priority.  You’ve mastered the game; now start leaving the ball next to the hole on your approach shot.

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