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New Developments in Electronic Court Filing
Efiling documents with the courts will soon become an important service to the Bar. With the vast majority of lawyers and courts online, it is a natural extension to use e-commerce tools to securely file documents and query dockets. Since the Internal Revenue Service has plunged ahead with tax filing over the Internet, attorneys have come to expect similar convenience. When Yahoo! offers efiling (see Figure 1 below) , legal culture responds. Courts are caught up in the tide, and more courts will adopt efiling as the success of existing projects is documented--and the large cost savings in storage are quantified. Already, court clerks, judges and attorneys are excited by the prospect of accessing the full text of pleadings over the Internet.
Figure 1. Yahoo! Finance site features "Online Tax Filing" via H.R. Block, http://taxes.yahoo.com/.
Well-known and successful efiling projects include the U.S. Bankruptcy Courts for the Southern District of New York and the Southern District of California. In California, the court has 40% of its cases filed electronically, and all documents filed as paper are imaged. The case file, then, is wholly electronic. Several recent developments in electronic court filing will help overcome past resistence by the courts and Bar, including new standards for data markup, progress on digital signatures, release of advanced software and new vendor partnerships.
Approximately 20 courts in the United States have eliminated paper in the case file, storing millions of pages of pleadings as images or in text format. In Seattle, Washington, Roger Winters leads the $3 million records imaging project for the King County Superior Court. Now all filings are available on a broadband network so two judges at once can look at a file and a suburban courthouse enjoys virtual access to the downtown clerk's office.
Roughly 20 courts are accepting pleadings electronically. There is some overlap in the group of courts imaging and efiling but some use only one or the other method. A minority of courts that use imaging are receiving documents via efiling or, in other words, the majority of paperless courts use only imaging. Of the courts either imaging or efiling, about half provide free public access to the documents, while the other half allow only court access or have public computers located in the clerk's office.
The first significant development in efiling is the opportunity of XML mark-up of pleadings. Extensible mark-up language, or XML, consists of codes in the document text that describe the data: for example, An effort is underway to create a national XML standard for legal documents, led by Todd Winchel of the Georgia court automation project, Dan Greenwood of the State of Massachusetts, and John Greacan, Administrative Office of the Courts Director for New Mexico state courts, among many others. Copyright in the legal XML standard will be free to all users. The debate about XML draws from format questions in past years, between ASCII text, HTML or Adobe Acrobat Portable Document Format (PDF) as the best publishing format for legal opinions.
With many jurisdictions on the verge of implementing efiling, the importance of XML is that multiple vendors can serve as portals to file with the court. Since the documents all conform to a common, non-proprietary standard any vendor's Web site can serve as the point of filing by attorneys. Painted in broad strokes, whether a restricted or free competition can occur in efiling turns on the use of XML.
Drawbacks in XML remain unanswered. One problem is how to apply the mark-up tags to the documents. Does each attorney do it with custom toolbars built into Microsoft Word or Corel Wordperfect? Or does the court mark-up the pleadings after filing? How efficient are forms or style sheets in applying codes? The move toward XML continues because the cost savings from handing around an intelligently tagged document is worth the effort to make it that way when it first comes into the court.
A second development that impacts efiling is digital signatures. Legal rules for signing electronic documents have made strides toward stability, notably with large volumes of ecommerce sales though the 1999 holiday shopping season. Though there are still few statutes that govern electronic transactions, the business expectation of getting paid from an ecommerce sale is stronger than ever. One can fill a volume with the details of digital signature laws and policies. But these are rarely the foundation of ecommerce.
The simple cousins of digital signatures, called electronic signatures, offer great promise in the next year or two. An e-signature is a procedure for associating a document with a person, and can be accompanied by a written, signed trading partner or data sharing agreement, e.g., EDI agreement. The federal courts, which operate an excellent efiling system, use an e-signature approach with attorneys often signing an agreement that efiled documents are the equivalent to documents personally signed.
An important facet of e-signatures is click-through or click-wrap license agreements. This is a method of signing that does not require association of an individual with an event. Instead, any user is deemed to have assented to the terms of use, a sort of res ipsa loquitur. In other words, the only way into the efiling system was through the license that said "I agree," so every user must have signed the terms of use. Most ecommerce transactions, such as the purchase of books at Amazon dot com, are based on click-through licenses. These are an example of a signature, if you want to call it that, that was almost entirely created by the Internet in the past two years. This phenomenon of the technology driving the legal rule is notable in electronic contract formation--only in recent months has the Uniform Electronic Transaction Act (UETA), concerning the validity of electronic agreements, been introduced in state legislatures.
Third, the explosion of non-court efiling, especially in tax, has smoothed the trail, if you will. Efiling in courts will become simpler and more widespread not because of success of pilot projects in the U.S. Bankruptcy Court for the Southern District of New York. Instead, the cultural shift to efiling will come from millions of consumers and businesses filing their taxes online, or paying for their car tabs at the Department of Licensing Web site, or voting online. From a business standpoint, companies like iLumin.com in Utah that developed advanced software for court efiling are now beginning to pursue business opportunities in insurance, health care and allied industries with intensive data processing demands.
Arguably, the ease of plugging into payment processing systems, which has made great advances the past year, is a vital component to improve adoption of efiling. After all, courts have filing fees to pay, or fines, or even to post jury payments to citizens. Now storefronts with ecommerce capability are offered as part of Web hosting packages for a few hundred dollars.
Vendors for efiling have consolidated in the past year. JusticeLink, based in Dallas, Texas, merged with the efiling unit of Lexis-Nexis, acquiring the CLAD (Complex Litigation Automated Docket) court contracts. In 1999, JusticeLink won the contract to provide the State of Colorado courts with efiling services. West Group has released an improved, Web-based version of its WestFile software, and is implementing a large scale system in Orange County, California. Case management software vendors, including Wade Systems and Choice Systems, have impressive efiling modules that clients can easily add. Wade Systems, located in Oklahoma, has started efiling in the the U.S. Bankruptcy Court for the District of Delaware. The Toronto, Canada, provincial courts are continuing to expand their use of Virginia-based Sustain Technologies' (formerly known as Choice Systems) efiling tools. The Toronto project has been aggressive in its efforts to share court documents with other government agencies, and create a network of compatible data sharing among law enforcement agencies.
Finally, the growing number of paperless courts has created a knowledge pool that will permit rapid growth in electronic document systems. Archiving is an example of a complex issue that has an evolving solution. It's a daunting prospect to dive into efiling when you know the archiving solution today is CD-ROMs of PDF files, and tomorrow it's going to be XML style sheets on Digital Video Disk (DVD). With millions of documents in state and federal courts already efiled or imaged, solutions to an array of problems are documented for other courts to rely on. Court rules for efiling are by now almost "plug and play."
What are some remaining challenges? Surprisingly, there is still no great efiling Web site, either one that documents all the technology used by efiling in courts, government or the private sector, or a truly advanced system that allows a court to create an efiling system on the fly, in the way that GeoCities offers free Web home pages. With 17,000 courts in the United States, about 20 operating totally paperless, and perhaps 1,000 courts with Web sites, some radical improvement in distribution of software tools has to occur for efiling to make a significant penetration of the market in the near future. The pressure to find solutions to efiling is present in every court, since some agency at least along every court's chain of data is operating electronically, and would benefit from a data hook up to the court. So the police agencies or county recorder or finance office in the various governments will help move courts toward efiling.
In conclusion, efiling tools have improved the abilty of courts to offer online services. With an emerging consensus on data mark-up using XML, the cost savings from adoption of efiling will make it more attractive to courts. Since a number of courts already operate in a paperless environment, questions about archiving, document formats and cost benefits are not the obstacles they once were. How vendors will provide the service to courts and attorneys is a process that will likely turn to an open model, allowing many Web sites to feed filings to a court. Since so many courts and law firms have the tools they need to work with electronic documents, the "magic dust" that will bring all the elements together is enticingly close. With so many attorneys already efiling their taxes, or accessing other government services, demand for e-courts is strong. When courts can easily sign up for efiling service--instead of having to customize software or engage in database integration--rapid adoption of efiling will follow.
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Bradley J. Hillis, M.A., J.D.
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JURIST and Bradley Hillis welcome your views and comments on this column. Use this form, or e-mail JURIST@law.pitt.edu.
February 3, 2000
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