Roundup of e-filing legislation

As courts move to more expansive use of electronic filing, more than technical issues have come up. Two in particular (financing and dated statutory language) require the active participation and permission of legislatures for implementation. This year saw several new laws and some bills still currently active that would go a long way to help, or in the case of New Mexico harm, e-filing and the courts. Among the bills:

Law

South Dakota HB 1038 Requires clerk of Supreme Court collect certain fees for the electronic transmission of court records. Signed into law by Governor 2/17/11.

Virginia SB 1369 Provides that clerks may charge a fee of $25 for civil or criminal proceedings filed electronically and an additional $10 fee for subsequent filings in such proceedings. Requires fee go to clerk's local fund to cover operational expenses of the electronic filing system. Clarifies that clerks may provide official certificates and certified copies of records that contain personal identifying information electronically upon request of a party or attorney. Makes various changes to clerks' duties regarding electronic filing. Signed into law by Governor 3/26/11.

On Governor’s desk awaiting action

Florida SB 170 Requires each state attorney and public defender to electronically file court documents with the clerk of the court and receive court documents from the clerk of the court. Requires the Florida Prosecuting Attorneys Association and the Florida Public Defender Association report to the President of the Senate and the Speaker of the House of Representatives by a specified date on the progress made to use the Florida Courts E-Portal system or the clerks' offices portals to electronically file and receive court documents, etc. Approved by full House 5/4/11. To Governor for approval.

For a list of other state activity, check out Issue 5:21 of Gavel to Gavel.

Projects and Notes - June, 2011

We have received many notes on court technology projects, thanks to our friends, that we want to pass along.  So here goes.

LegalXML Electronic Court Filing (ECF) Issues Portable Media Draft

The OASIS LegalXML Electronic Court Filing TC members have produced a Committee Specification Draft (CSD) and submitted it for 30-day public review for the ECF 4.0 Portable Media Service Interaction Profile.  The profile may be used to store ECF 4.0 message transmissions to portable media in the absence of an active network between the sending and receiving MDEs.  For more click here.

iPad/iPhone Deposition Support (thanks Carlene)

The iPhone J. D. blog shares a step-by-step guide for using that device to recreate a scene in/for a deposition.

iPads as Kiosks (thanks Jim D)

Apple stores are using iPads as very attractive kiosk devices.

Montgomery County Ohio E-Filing Training and Support (thanks Anne)

A very nice Q & A page was created by the Montgomery County (Dayton) Ohio E-filing project following their webinar training.  They have also posted their PowerPoint presentations and other very useful information from their project.

"Judges Walk Tightrope With Online Presence" (thanks EZ)

The Recorder legal newspaper in California posted an article on issues facing judges using social media.

Oregon Courts Choose CMS (Press release)

DALLAS – June 2, 2011 – Tyler Technologies, Inc. (NYSE: TYL) today announced that the State of Oregon has selected Tyler’s Odyssey® Court Management System for statewide implementation supporting all state trial courts. Odyssey supports Oregon’s eCourt goal of using technology to streamline court processes, reduce costs from handling and storing paper files, provide around-the-clock access to court information, and provide better information for judicial decision-making. Please click here for the full press release.

Court Videoconferencing

News articles from Tennessee and Georgia.

Federal Courts Work on their Archives

Another excellent article in the US Federal Courts newsletter. The Third Branch from their May, 2011 edition shares news of recent work being done by the Judicial Conference Committee on Court Administration and Case Management Records Subcommittee.

The article, Making Room-Saving History, summarizes work being done by the Federal Courts with the National Archives and Records Administration (NARA) to reduce the massive accumulation of records that "cost the Judiciary over $6.2 million last year".

The article notes:

""Records had accumulated for decades and had become an unmanageable mass," said Judge Steven Merryday (M.D. Fla.), then chair of the Records Subcommittee, part of the Judicial Conference Committee on Court Administration and Case Management (CACM). "With the potential of rising storage costs, we were facing catastrophic budget consequences." Merryday's subcommittee began by looking for ways to preserve what needed to be kept and what could be disposed. They sought the advice of the head of the National Archives and court representatives. The subcommittee went over, code by code, what would be found in a file, and agreed on what should be preserved. Then they made their recommendations to the full CACM Committee and then to the Judicial Conference."

The article further notes:

This is the first time in more than 30 years that NARA has been able to dispose of any federal court case records. They've begun with paper civil case files dating back to 1970. But before they dispose of any files, courts have the ability to designate "non-trial temporary case" files between 1970 and 1995 as historic. These files will be retained and stored. All cases filed at any time that proceeded to trial, and all cases filed before 1970 are automatically designated permanent and will not be destroyed. The remaining cases will be indexed and become easier to access.

What is considered historically significant? The CACM Committee, working with NARA, federal judges, historians, and academics, proposes that certain case records be designated permanent. Cases of historic significance would involve particular issues such as state reapportionment cases, civil rights voting cases, treason, national security, family farm and historic bankruptcy cases, and death penalty habeas corpus cases. Judges and clerks of court also are asked to designate cases that:

• Involved a lawyer, litigant, or witness of historical interest or importance;
• Involved an issue of historical interest;
• Involved a matter of national interest separate from the issues in the litigation; or
• Received substantial media attention at the time.

Several state courts have done similar work including promenently the New York State Judiciary Records Management program.  For a list of their policies click here.

Wireless Device Guidelines for Federal Courts

The April, 2011 edition of the Federal Courts Third Branch newsletter contains a timely article: Wireless Device Access Guidelines Strike Balance.  The article begins:

“The American public loves the convenience of their wireless communication devices—PDAs and laptops, smart phones and earpiece devices, among others. It’s estimated there are 285 million cell phone users in the United States.

However, the same devices that provide convenience in communications may raise security concerns in federal courts and possibly disrupt proceedings. Courts have responded with a variety of access policies.

To help strike the right balance between security concerns and convenience, the Judicial Conference Committee on Court Administration and Case Management, in consultation with the Information Technology Committee and the Judicial Security Committee, has issued revised guidance for courts to consider that updates how new technologies could be used and what this may mean for courts.”

Documents as a Two Way Street

Electronic document software should be able to do more to help us do our work in the courts. One problem has been the current inability for the software that has been implemented to be able to work together. For example, when a judge creates an order, they most often create the document in a word processing program, save it; possibly convert it to  PDF; then in turn it is ideally e-filed or less ideally, scanned or printed. Then the data is manually entered into the case management system (CMS). No wonder many court users have a dim view of automation “productivity” when put through these multiple and often confusing steps? But it doesn't have to be that way.

All major word processing and forms software has the ability to merge data from a database into a document when created. Many CMS have been doing this since the early 1980’s via mail merge functionality. But most don’t realize that one can identify data entry fields (see this Microsoft Word example article) so that the data can be “read” for data entry by the database. Therefore the new scenario could be: first, the judge or clerk would select the document to be created; the database in turn would be called upon to complete/merge the known data into the document. When complete, the data added by the user would in turn be read by the system and automatically entered into the CMS database. This helps the judge/clerk accomplish their task and, avoids the need for subsequent data entry and other steps. This is the two way street. But just as important, the document itself should be automatically stored or attached as part of the CMS database so that it is an integral part of the court record.

In other words, this approach minimizes multiple steps as well as complexity. And since the major technology vendors have provided the ability to do full text search of documents stored in their databases, the court users can retrieve document data both through the case number but also using “Google” type searches. For discussion of Microsoft database search capabilities click here and here and for Oracle click here.

Bottom line: the technology vendors have been working hard over the past decade to make things work together… it is up to court technology developers to use that capability to benefit the daily work of the judges and court staff.

E-Filing / E-Reader Notes

Western District of Virginia Federal Court

Courts are starting to express addition control over the form and format of E-filed documents.  For example, via Virginia Lawyers Weekly we learn that the Western District of Virginia District Court has requested that large scanned PDF attachments be handled separately and submitted in separate 10 MB file attachments. The complete court rule can be read here.

Texas Appellate Courts¹

The Supreme Court of Texas has made E-filing a promenant place on their website.  In addition to the link to their rules, there is a link to a paper by attorney Don Cruse and Clerk of Court Blake A. Hawthorne's paper: Appellate Briefs of the Future that contains excellent guidance on preparing "e-briefs".  Attorney Cruse' further provides valuable information via his SCOTXBlog including a call for comments on how e-briefs are really being used.

US Supreme Court

And last, in an article we missed late last year we learn that two US Supreme Court justices have been using e-readers, the iPad and Kindle.

Notes:
(1) Thanks to Kendall Collins Smith and her OneLegal Blog for this lead

Trust and E-Filing

There is a significant differentiation between e-filing systems design to address inherent issues between trusted and un-trusted E-filers.  Let me explain:

An article by former Public Broadcasting System “pen-named” columnist, Robert X. Cringley. "The T Word" discussed the concept of trust.  He wrote:

“(T)rust is … based on one of two methodologies — empiricism or transparency” The essence of empirical trust in this instance is “I trust because I don’t need to trust because I am (or soon will be in the rube scenario) immune to harm.” This immunity comes from a mathematical proof, whether that proof is provided by a strongly encrypted password on a computer file or by the hedging of counter-parties in some complex financial derivatives play. Empirical trust is a zero-sum game.”

“Trust through transparency is a completely different creature based on the novel idea that people say what they mean, do what they say they will, and make things that work because you can see how they work inside.”

E-filing systems that are based using Electronic Filing Service Providers (EFSP - see note 1 below)  are essentially empirical trust systems.  The courts have “hedged” their risk by allowing the EFSP to validate the filer and handle payments.  In turn if the EFSP charges their fees via credit card that later default, well they have hedged that risk/trust via the credit card service company who absorb the loss (as would the courts if charged the credit card directly).

Also an EFSP could be another government agency that the court implicitly trusts and vouches for their user community.  A prosecutor, social service agency, or law enforcement department would maintain their authorized user access that in turn would provide identification verification for e-filing.

Finally the court themselves could develop their own “circle of trust”(2)  as have the US Federal Courts who validate their e-filing users via a sign-up and training procedure.  For example, the US Bankruptcy Court in San Diego explains on their web page that “to become a CM/ECF Registered User that one must register and complete the assigned training”

But what about E-filers, such as the self-represented, who do not use an Electronic Filing Service Provider to vouch for them?  They will have to be initially viewed as un-trusted E-filers.  There is a very old but true saying that came from a New Yorker magazine cartoon  “On the Internet, nobody knows you are a dog”.  The fact of anonymity has been a boon and curse to the users of the Internet.  In our case it is a curse because we must have reasonable assurance that the person submitting the electronic is in fact that person (or authorized person).  The risk of “spam” filings and other type of network attacks is real.  Thus since the goal is to make e-filing as accessible and convenient to use for as many persons as possible, these issues and limitations must be addressed by technology, rules, and procedures.

Some of these problems may be addressed by initiatives in many countries to create secure online identity.  For example, in April, 2011 the USA President, Barak Obama issued a "blueprint" for creating a system of digital identity.  When such systems are developed they will be of great help to the courts in adopting and implementing E-filing.

Notes:

1) EFSP - Texas ( eFiling for Courts ) and others have developed e-filing systems based upon the concept of statewide portal with the end users being serviced by private corporations known as Electronic Filing Service Providers or EFSP.

2) The “circle of trust” quote is from the film – “Meet the Parents”:  http://www.imdb.com/title/tt0212338/

3) The graphic accompanying this post is based upon the excellent graphics illustrating collaboration concepts published at: http://emergentbydesign.com/2010/07/01/guidelines-for-group-collaboration-and-emergence/

Connecticut bill would require state, in consultation with judicial branch, establish e-document standards and guidelines

Cross-posted to Gavel to Gavel.

The question of standards for the authentication and storage of e-documents, in particular court documents, is getting more and more legislative attention. Connecticut's HB 6600 of 2011 is a case in point.

Some background is in order.

SB 501 of 2010 created a task force to study converting legislative documents from paper to electronic form. A similar but separate task force was created via HB 5435 of 2010 to study ways in which state agencies and departments could reduce or eliminate duplicative procedures and the amount of paper used and how, when practicable, technology can be employed to help in such reduction or elimination.

The judiciary testified before both task forces. Efforts to end transcription of legislative proceedings were opposed by the judiciary, as witnessed by the testimony of Deputy Chief Court Administrator Judge Patrick l. Carroll, III (page 79). Chief Court Administrator Judge Barbara M. Quinn submitted testimony to the state agency paper task force noting among other things the court's use of e-filing and review of its business processes.

The resulting legislation, HB 6600 of 2011, contains a litany of ways to avoid paper, such as reducing the number of copies of statutes that get distributed (the number going to the judiciary would decrease and probate courts would have to specifically request copies) and moving much of the legislative process online.

For the courts, another element of note is Section 28:

Not later than January 1, 2012, the State Librarian shall, in consultation with the Secretary of the Office of Policy and Management, the Commissioner of Administrative Services, the Chief Information Officer of the Department of Information Technology, the executive director of the Joint Committee on Legislative Management and the Chief Court Administrator of the judicial branch, establish standards and guidelines for the preservation and authentication of electronic documents. (emphasis added)

HB 6600 was approved by the Joint Government Administration and Elections Committee and is currently pending final action in the House and Senate.

E-Filing coming soon to the Pennsylvania appellate courts

According to the The Legal Intelligencer (subscription required) the Administrative Office of Pennsylvania Courts is hoping to launch an e-filing system for a limited number of appellate filings, including petitions for allowance of appeal to the Supreme Court, by the end of 2011. Justice J. Michael Eakin, the liaison justice for technology in the Pennsylvania courts, said that initially, e-filing will be optional. Superior Court prothonotary Karen R. Bramblett told the Philadelphia Bar Association last week the e-filing system will build on the appellate court's case management system and other existing case management systems, including the statewide criminal case management system.

Court technology is at the forefront of most State of the Judiciary Addresses

At a time of tightening budgets, almost every state chief justice that has made a State of the Judiciary Address in 2011 has touted the benefits (financial or otherwise) of technology and the courts. Below are some highlights from those speeches.

The KIS division of the National Center for State Courts has an archive of 2011, 2010, and previous years State of the Judiciary addresses located here.

Alabama Almost all court forms now online e-forms. Use of direct deposit, online personnel/HR functions. Elimination of AOC weekly mailings in favor of phone/email. Use of computers in lieu of fax machines. Voice response system and website for child support and traffic payments. 100% e-filing for civil matters. Criminal e-filing program being expanded. Applications being developed for Family Court and juvenile cases. All training, registration, etc. for judicial education online. Pilot prison-to-court video hearings.

Alaska Successful Electronic Discovery pilot program (criminal cases). Use of YouTube videos for self-represented litigants. Statewide case management system (CourtView) in all 44 court locations.

Colorado Building statewide e-filing system. 2010 implementation of public access system.

Connecticut Website in English and Spanish.

Georgia 2010 implementation of Supreme Court e-filing system.

Hawaii More reliance on electronic case management system (JIMS) and expansion in 2010 to e-filing in appellate courts. E-filing to be implemented in criminal courts, followed by civil and family courts. Electronic bench warrant program won two awards in 2010. $15 million through electronic traffic collections system since 2007.

Idaho Provide online assistance through an interactive interview process to complete 160 court-approved forms for litigants. Updates and improvements to statewide case management system (ISTARS). ISTARS use for tax refund interceptions. Work with law enforcement to develop and implement electronic citations. Intend to implement electronic filing of documents in trial courts.

Indiana Electronic system notifies law enforcement when protection order filed and allows for online request for such orders. In future, requestors will receive notice of order by e-mail. Electronic system notifies law enforcement when person adjudicated mentally ill. Tax warrants now sent electronically directly to local courts. 200+ police departments not use Electronic Citation and Warning System. Extensive use of court case management system (Odyssey) in 77 courts in 26 counties. “Indiana’s courts are creating a 21st Century system...”

Iowa Testing e-filing and document retrieval system (EDMS) and expect full implementation in 5-6 years. Website allows online requests for justices and judges to come to communities to speak. Website video cast of Supreme Court proceedings suspended due to budget cuts.

Kansas Use of e-filing.

Maine Previously, eliminated technology duplication. E-filing is ultimate goal. Fines/tickets now paid online. Domestic violence orders and conditions of release on bail are now electronic. Use of centralized electronic warrant repository. Creation of “criminal information electronic broker” to sweep data in criminal cases from the court system into the State Bureau of Identification.

Nebraska Electronic payment system collected over$5 million in traffic fines in 2010, as well as over $2 million in other costs and fines. Electronic filing gaining momentum, with over 50% of new civil filings in county court systems made electronically. Last District Court not already part of unified computer system, will be converted in a matter of weeks; last Juvenile Court in months. Development of on-line interactive court forms. “No branch of this government is working harder to implement technology.”

Nevada Technology in the Courts – web cast, public information portals, E-filing, E-tickets.

New Mexico Expanding use of videoconferencing. New statewide case management system, including conversion of all papers filed in court into e-documents... New remote electronic filing. Work with law enforcement and others to coordinate electronic citations.

North Dakota Upgraded trial court case management system expected to be completed within budget and nearly two months ahead of schedule. Moved into a paper-on-demand environment where documents are electronically filed or scanned and stored as images.

South Carolina “Use of modern technology to automate court processes has been the centerpiece of my administration...” Could not afford a big mainframe computer system, with expensive hardware, software and maintenance cost, Internet-based platform instead. After 10 years have hit goals to create high-speed connectivity, create statewide uniform case management software, create websites for each county Clerk's office and for the state Judicial Branch, create a 24/7 call center providing on-going support for each county, and provide a standardized imaging system for putting paper documents into an automated system. Statewide Court Case Management System now 96 percent deployed; 100 percent in summer 2011. 29 counties IT hosted by S.C. Judicial Department. To pay for system described, business plan is to create a state-owned electronic filing system, based on a minimal fee, less than the federal fees or any other state. Build cost: $5 million. Expected to generate $7 million a year when operational.

South Dakota Updating computer software programs. Vendor selected and recommended a four year implementation program for new case management system. At the end of implementation in 2015, all programs up-to-date and electronic filing a reality.

Utah The push towards “e-everything“. Use of electronic record for all court business in all courts. Already launched e-filing in civil cases, e-payment of fees/fines/restitution, e-documents, e-warrants, e-citations. E-filing of criminal cases developed and awaiting launch of prosecutor's system.

Washington State “The core of what brings our hundreds of courts together every day is the Judicial Information System (JIS). Essentially, JIS equals justice…” Vehicle Related Violations Exchange under development will eliminate the need to physically transfer paper tickets to the courts. Creation of “JusticeNet”, an effort to use technology and broadband capability throughout the state to deliver information and services including courts, libraries, community centers, legal aid and defender organizations, the prosecutors association, the state bar and others.

Wyoming Electronic filing and docket management in the Supreme Court. Docket management system in about half of district courts and e-filing to follow. After district courts, circuit courts. Public computer terminals in some circuit courts already, rest to get terminals by end of 2011. Most judicial districts have video conferencing capability and are learning to use effectively. “next technological leap”: electronic citations and electronic payment of fines.