E-Filing Must Support the Self-Represented
To date most court E-filing has focused on civil litigation for a number of reasons. First, a majority of non-small-claims civil litigation is serviced by attorneys. This well-educated user base is generally motivated to reduce their operational costs. And with the use of E-filing in the USA Federal Courts being widespread, they are becoming very familiar with the technology. But state courts in particular are increasingly experiencing a significant transition in case participants to more and more self-representation. A recent compilation by the Knowledge and Information Services staff here at the NCSC reported that 66% of all cases heard in Minnesota courts involved the self-represented with a high of 81% of family cases. And Connecticut reported a 101% increase in the number of civil cases involving self-represented from 2005 to 2010.
So how are states going to mandate E-filing when a majority of their cases include the self-represented? The answer of course is to provide online capabilities that are designed for the self-represented. These capabilities should include first guided forms for data capture (for example see www.a2jauthor.org and Minnesota’s I-CAN! court forms http://www.mncourts.gov/ican). Many courts unfortunately currently only allow self-represented litigants to generate the paper forms with these systems. However a few do “save” the data so that it can be automatically transferred and entered into their CMS/EDMS when the litigant appears at the court and submits their signed paper copies and/or fee payment. An excellent example of a fully electronic online filer/response system has been built by the UK Courts in their Money (Small) Claim Online system.
As you might surmise, signature and validation are an issue with the design and implementation of an online self-represented solution. There are multiple approaches to this problem that courts can explore.
First, a few states have electronic notarization legislation (http://en.wikipedia.org/wiki/ENotary ). Working with notaries to create a third party person who “vouches” and facilitates the e-filing solves multiple problems to empower the self-represented.
Second, courts can still require the physical signing and either mailing/presenting a single printed submission page with the electronic forms document tracking number (see CTB article on URN:Lex) to the courts. That allows the court to have a “wet” signature for verification that requires only one page to be scanned and still benefit from the filing and other documents to be loaded from the self-represented system.
A third option could be to use government identification numbers such as motor vehicle licenses, along with credit card payment to validate the filer. Most courts have access to motor vehicle databases that could be queried for name and address match with the license number as the verifier.
But please note that many clerk’s offices are restricted in what they can and can’t reject as a filing. By analogy, I once participated in a discussion during an annual clerk of court conference as to whether they could reject a filing that was written on the side of a Holstein Cow? The group consensus was that the judge would need to reject the filing as it was not in the purview of the clerk's staff to do so. So a properly designed system should allow for quick electronic review and rejection of improper filings.
I’m sure that there are other options and approaches in dealing with the verification issue. If you have ideas to share, please post them in our comments section.
To date most court E-filing has focused on civil litigation for a number of reasons. First, a majority of non-small-claims civil litigation is serviced by attorneys. This well-educated user base is generally motivated to reduce their operational costs. And with the use of E-filing in the USA Federal Courts being widespread, they are becoming very familiar with the technology. But state courts in particular are increasingly experiencing a significant transition in case participants to more and more self-representation. A recent compilation by the Knowledge and Information Services staff here at the NCSC reported that 66% of all cases heard in Minnesota courts involved the self-represented with a high of 81% of family cases. And Connecticut reported a 101% increase in the number of civil cases involving self-represented from 2005 to 2010.
So how are states going to mandate E-filing when a majority of their cases include the self-represented? The answer of course is to provide online capabilities that are designed for the self-represented. These capabilities should include first guided forms for data capture (for example see www.a2jauthor.org and Minnesota’s I-CAN! court forms http://www.mncourts.gov/ican). Many courts unfortunately currently only allow self-represented litigants to generate the paper forms with these systems. However a few do “save” the data so that it can be automatically transferred and entered into their CMS/EDMS when the litigant appears at the court and submits their signed paper copies and/or fee payment. An excellent example of a fully electronic online filer/response system has been built by the UK Courts in their Money (Small) Claim Online system.
As you might surmise, signature and validation are an issue with the design and implementation of an online self-represented solution. There are multiple approaches to this problem that courts can explore.
First, a few states have electronic notarization legislation (http://en.wikipedia.org/wiki/ENotary ). Working with notaries to create a third party person who “vouches” and facilitates the e-filing solves multiple problems to empower the self-represented.
Second, courts can still require the physical signing and either mailing/presenting a single printed submission page with the electronic forms document tracking number (see CTB article on URN:Lex) to the courts. That allows the court to have a “wet” signature for verification that requires only one page to be scanned and still benefit from the filing and other documents to be loaded from the self-represented system.
A third option could be to use government identification numbers such as motor vehicle licenses, along with credit card payment to validate the filer. Most courts have access to motor vehicle databases that could be queried for name and address match with the license number as the verifier.
But please note that many clerk’s offices are restricted in what they can and can’t reject as a filing. By analogy, I once participated in a discussion during an annual clerk of court conference as to whether they could reject a filing that was written on the side of a Holstein Cow? The group consensus was that the judge would need to reject the filing as it was not in the purview of the clerk's staff to do so. So a properly designed system should allow for quick electronic review and rejection of improper filings.
I’m sure that there are other options and approaches in dealing with the verification issue. If you have ideas to share, please post them in our comments section.
Thanks for posting this on e-filing and the self-represented. I strongly urge all state courts to read and adapt the Washington Technology Access to Justice standards, or at least consider them a metric/guide/principle in any mandatory e-filing project for non-attorneys. http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=am&set=ATJ&ruleid=amatj02principles. E-filing should increase access, not decrease it. More importantly, it should not decrease access for the most vulnerable groups or delay the benefit of the technology for significant amounts of time, like LEP litigants, disabled litigants, and those who need fee waivers. A timeline for incorporation of these groups needs to be included in the original plan and budget, and testing/evaluation. Any mandatory e-filing project in civil dockets w/low income and those without lawyers ligitants, needs to have a path forward to ensure equal access. One very difficult issue, policy/tech wise, is the issue of fee waivers. A fee waiver should trigger an e-filing fee waiver (convenience fee). In a responsive pleading, if the person is required to come to court to file a waiver in person, if the time frame is a short answer time (5 days in some limited jxn cases in some states/type of case). The requirement that they come into the court house defeats the point of efiling for the litigant. Tech design should accept the filing and if the waiver is declined, notify the litigant that on their day of appearance they have to pay the fees, or risk a default. Courts considering making e-filing mandatory should also work on plain language forms, uniform forms ,plain language instructions that print with forms and after efiling on next steps, for the heavy SRL dockets, and preferably guided interviews that are online. Plus they also need to write e-filing policies that are flexible on authentication, allow for electronic notarization, and use standard efiling communication standards preferable ECF 4, confirming to NIEM. In some states, each county has a court house. Many courts remain on older standards or use different standards according to local court system preferences/CMS capacity. Considering the state of legislative funding for courts, the more efiling standards that are used, the more expensive it is to implement efiling, and the less likely it will be friendly for those w/out lawyers. There is a national infrastructure that many access to justice commissions are using, known as LawHelp Interactive. LawHelp Interactive has been funded by the Legal Services Corporation and is operated by Pro Bono Net. LawHelp is now integrated with two case management systems, (one legal aid CMS, one a court CMS). We are hoping to integrate into another court infrastructure in 2013 and will continue to further integration with court and legal aid/non profit access to justice systems. I-CAN! another non-profit led intitiative is currently e-filing small claims courts in Orange County, CA. Thus e-filing designed with the needs of SRLs is now an option courts can pursue via these non-profit e-filing world entrants with significant experience in the self represented, pro bono world, and low income world. For more information about LawHelp Interactive visit: http://www.probono.net/dasupport or http://www.lawhelpinteractive.org or email me at cjohnson@probono.net. For more information about I-CAN! visit http://www.icandocs.org/ca/sc.html
ReplyDeleteThere are many topics here to discuss/hone in to design a litigant friendly system. You have started a great discussion! I work at ProBono Net and manage LawHelp Interactive. These comments are my own views, not my employer’s.
Claudia Johnson