Extras - Six Bum Raps Against E-filing

Jerry Lawson is a practicing lawyer and author of the very popular book, The Complete Internet Handbook for Lawyers (ABA 1999).

A major problem to expanding electronic filing is the current level of computer illiteracy of attorneys. Those of us directly involved in using technology in the Courts sometimes forget the low level of technical expertise and high level of technical resistance rampant in most law offices. This is and will be a significant barrier

Lawyers certainly have many legitimate questions about electronic court filing, or e-filing, and how it can affect the practice of law. Some of the questions are worth debating, but others are bum raps. There are known, workable solutions for many of the most commonly voiced objections to e-filing. Here are six of these bum raps, and the solutions:

Bum Rap # 1: E-filing causes invasion of privacy

Some people object to electronic filing because they believe making all court records available easily for free over the Internet would lead to invasions of privacy. While nearly all court records in the U.S. are public records anyway, those who adhere to this view say that the difficulty of retrieving records gives rise to "practical obscurity." In other words, they object to e-filing because it could contribute to making it too easy and inexpensive to access public records.

Such concerns should not be dismissed out of hand, as powerful new "data mining" techniques can enable such information to be used in ways that were previously impractical.

However, while e-filing makes cheap, efficient public access possible, it does not make public access inevitable. Courts can adopt e-filing without also making court records available over the Internet.

Even if court records are available over the Internet, they need not be made available for free. It is not unusual today for courts to charge as much as a dollar a page to reproduce court records. Just because it might be economically feasible to make electronic records available for much less does not mean that they must be free. Imposing access charges is a way to maintain the "practical obscurity" that now exists.

Bum Rap # 2: E-filing is not secure

Recently my wife, a law firm administrator, told me that a member of her staff had "freaked out" over the prospect of e-filing. The staff member recoiled in horror at the thought and asked, "But couldn’t someone read your filing? How would the court know who had filed something? Couldn’t somebody intercept your filing and change it?"

All these concerns are easily solved by modern encryption and digital signature technology.

Most pleadings are matters of public record, but for those that are not, encryption can scramble files so that no one can read them but the intended recipient. Good modern encryption software is unbreakable, as a practical matter, and it is enormously easier to use than the older types of codes most of us are familiar with. Among other advantages, modern encryption software does not require you to share secret passwords between the sender and receiver. Other, more convenient methods are used to ensure that only the intended recipient can read a message.

Digital signature software lets you verify who signed a document, more securely and with more certainty than "wet signatures." Digital signatures also can be used to detect whether any change has been made in an electronic document after it has been signed. "Any change" means "any change." This is impossible with paper documents and wet signatures.

Forgers can’t just cut and paste a digital signature from a genuine document to a phony document because each digital signature is, as a practical matter, unique. Each digital signature combines a unique number identifying the digital signer with a mathematical fingerprint, or "hash" of the original document.

Bum Rap # 3: Paper records are irreplaceable in some situations

For example, some law firms believe that showing clients paper pleadings helps impress clients with how much work was done. Other law firms have only primitive ability to store and manage electronic records. Still other law firms are saddled with one or more Paleolithic Era lawyers who can’t use their computer to read their e-mail, let alone an electronic pleading.

However, not requiring paper for filings is not the same thing as banishing paper for all purposes. All e-filing formats now being considered allow paper copies to be printed when needed.

No e-filing rule under consideration would prevent you from printing all the paper copies you want for your clients, your own files, your technology-challenged partners, or anyone you think should have a copy.

Bum Raps # 3 and #5 are not so much objections to e-filing, as they are to modernizing internal court administration. However, we’ll cover them here because they frequently come up during discussions of e-filing:

Bum Rap #4: E-filing won’t work because technology changes too fast

Some people argue that electronic filing is impractical because technology changes too rapidly. It is hard today to find equipment that can read an 8 inch floppy disk, or even a 5 1/4 inch disk, formats that were standard not that long ago. Software offers similar problems. Can WordPerfect 9 import files created by WordPerfect 1.0? Will equipment and software be available in 20 years to read the formats that are used today?

However, with proper planning, it doesn’t really matter. Standard technologies don’t disappear instantly. There is always a transition period, during which conversion is relatively easy. Courts must develop and implement migration plans that keep pace with technology. Before a format becomes extinct, records must be moved onto whatever is the standard medium at the time.

Well, suppose this does not happen? Suppose that, due to incompetence, or lack of funds, or some other reason, the records are not transferred when should be? This is an inconvenience, but it’s not the end of the world. There will almost always be a way to make the transfer. It may be more expensive than it would have been if done in a timely matter, but it will normally be possible, if the records are deemed valuable enough.

Bum Rap #5: There is uncertainty about the physical life span of electronic media

Some people worry that the life span of electronic media is too short. Do we really know how hard drives or backup tapes will last? They haven’t been around long enough for us to know for sure, right?

This objection confuses working storage with archival storage. Court files get their heaviest use in the few years after a case is filed. During this period, they need to be kept readily accessible. We know compact disks last 20 years, at least. When records no longer need to be at hand on short notice, they can be transferred to some still more long-lasting medium for archival storage. . One option is high quality microfilm, like that used for long term storage of important federal records at the National Archives and Records Administration.

Bum Rap # 6: E-filing will be too expensive

Deploying reliable, efficient e-filing systems will involve some up-front costs. Much of the expense will be in automating the courts’ internal operations so that they can take advantage of receiving information in electronic format. However, if e-filing is implemented intelligently, over the long run we will more than make up for the initial investment through reduced expenses, especially labor.

A key to keeping the costs reasonable will be using technology that employs open standards instead of proprietary techniques. Adopting proprietary standards for court filings would be comparable to buying a new type of car that required a patented type of fuel, available from only one supplier. Nearly any such supplier would be tempted to take advantage of its fuel monopoly by charging exorbitant prices after it had built up a user base. No matter how technically superior such a car might seem to be, a reasonable person would think twice before making such an investment.

The nation’s court administrators would be well advised to demonstrate a similar level of skepticism before buying into proprietary technology for e-filing. They must resist the allure of "free" installations for the courts and other perks offered by vendors of proprietary systems, no matter how seductive. Open standards are essential.

Selected e-filing Links

The transcript of a 1998 e-filing seminar on Counsel Connect has been archived by one of the participants at http://www.primenet.com/~hornbeck/CCEFiling/index.html

Sean Fosmire has an excellent essay on electronic filing at http://www.courts.net/efiling.htm

eFiling Comes of Age, by Phil Ytterberg and Scott Schumacher, Published December 1, 1999.

A directory at the US Courts site says seven bankruptcy courts and two district courts are using electronic filing: http://pacer.psc.uscourts.gov/pubaccess.html

There is a good FAQ at the bankruptcy court for the eastern district of Virginia that describes how they do it there: http://vaeb.uscourts.gov/home/ecffaq.html

Because so much money is involved, a number of big vendors are touting their systems: