Open Message to Clerk: Whither E-Filing?

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New Message on DCBA LPM Committee

Open Message to Clerk: Whither E-Filing?

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From: Mhedayat1

Dear Clerk of the Circuit Court:

With the utmost respect for the great job you do, I have a question: when did e-filing fall off our collective radar? Was it ever on the radar screen? As citizen-practitioners we at the Practice Management Committee of the Bar Association would respectfully like to offer our help in spreading the good news about e-filing. It’s quick, efficient, inexpensive, so what’s not to love? Yet it has reached a dearth of practitioners and remains a limited experiment in only a few divisions of the Court. If there is anything that we can do to help, please let us know.

In the meantime, I notice that the Clerk’s office has almost certainly following all of the “Best Practices” featured below. Kudos on doing things right. Now if we could only get the rest of the Bar on board…

M. Hedayat, Chair
Practice Management Committee
DuPage County Bar Association

1. DEFINE ELECTRONIC FILING SO EVERYONE IS SPEAKING THE SAME E-FILING LANGUAGE.
You need to define what “electronic filing” means for your court so that everyone has a common baseline of understanding.
Historically the term “electronic filing” or “e-filing” has included fax filing, email, modem-based online services, and more recently CD-ROM transfer. Today, these approaches are considered crude in terms of information management, reliability, and security. A more appropriate description for electronic filing and service, is “the electronic transfer of legal documents to and from court, and between parties using the Internet.”
You should also include a fiscal policy statement regarding electronic filing. For instance, if you choose to partner with a vendor, your policy might state that electronic filing will be implemented with only limited or no public budget impact through a form of public-private partnership. Alternatively, if your court chooses to build your own electronic filing system or purchase an e-filing module from a case management vendor, the fiscal policy should indicate that public funds are needed.

3. DEFINE THE BOUNDARIES OF YOUR INITIAL IMPLEMENTATION.
Although the ultimate goal of electronic filing is to enable all litigants in all courts and case types to file electronically, it is recommended that a phased approach be used. In other words, start with a project scope that is manageable and that will demonstrate success very quickly, then expand based upon that success. When choosing where to start, successful projects have considered the following
factors:

• Case Type: Start with civil cases or a subset of civil cases such as personal injury.
• Number of Attorneys: Start with a manageable number of law firms (100 or less). Remember that the attorneys and their support staff will need to be trained.
• Pro Se/Pro Per Parties: Select cases involving the fewest Pro Se/Pro Per users.
• Life Cycle of the Cases: Choose cases that will generate enough filings to quickly demonstrate system success.

2. ENGAGE KEY LEADERS AND INCREASE SUPPORT BY CREATING A WORKGROUP TO IMPLEMENT E-FILING.
Identify top leaders from the bench, court administrator’s office and clerk’s office who are champions for electronic filing and who have authority to make decisions for the groups they represent. Typical electronic filing workgroups include representatives of the court administrator, judges, clerk of court, IT staff, and the bar. And rather than rule by committee, it generally takes a judge to lead the project to success.
The overarching mission of the workgroup should include implementing electronic filing consistent with the financial policy for the project. Assign specific objectives and deliverables to the individual members while assigning significant milestones to the entire workgroup. As a start, each of the issues in this “Top 10” list could be assigned for individual follow-up.

4. WHY REINVENT THE WHEEL? LEARN BEST PRACTICES FROM YOUR PROFESSIONAL PEERS.
Seek out colleagues from other courts who have implemented e-filing. This is a great way to gain from the experience of judges, court administrators, and clerks in other jurisdictions who have already implemented electronic filing. Gain insight into the type of e-filing system that was implemented and the relationship with the vendor if there was one. Some of the key questions you should ask include:

• How did they select a vendor?
• What experience did their vendor have prior to the project?
• What has the impact been on access to information for the bench and improving operations for the clerk’s office?
• How do you measure success of the project?
• What are the lessons learned?
• How did they drive attorney adoption?
• Would you do anything differently?

5. IMPLEMENT RULES TO ACCOMMODATE E-FILING TECHNOLOGY.
Amendments to the statutes or rules that govern procedure or case management orders are usually needed to address the unique aspects of electronic filing and service — aspects that are not contemplated with paper-based filing. The use of electronic signatures and the extension of filing deadlines beyond court hours are just two examples of the impact of using the Internet. Before a jurisdiction can begin accepting electronic filings, rules authorizing electronic filing need to be formally adopted. Because the attorneys and litigants who will be filing electronically need to have time to review and become familiar with the rules, it is recommended that jurisdictions begin an e-file project no sooner than six weeks after the rules become final. Although developing a training program for litigants and attorneys is beyond the scope of this paper, the new rules are an important part of the training. Depending on the scope of rule implemented in the jurisdictions, lead times for identifying and assembling rules committees and judges should begin early in the implementation process. At a minimum, the electronic filing procedural rules should:

• Define the scope and elements of the electronic filing system
• Authorize electronic filing and service
• Clearly specify the procedural mechanics and deadlines
• Include a policy statement encouraging the use of e-filing

6. MAP CURRENT PROCESSES AND DOCUMENT YOUR WORKFLOW TO DEFINE FUNCTIONALITY FOR THE E-FILING SYSTEM.
All successful electronic filing projects require a detailed understanding of the existing paper-based workflow. This is most readily accomplished by tracing the path of paper documents and case files through the litigation life cycle. Using this documentation of the existing workflow, create a list of features and functions that you would like to automate. These automation requirements can then be used as your checklist of required functionality for the e-filing system. Also, workflow diagrams are a great tool for staff training and for demonstrating the efficiencies of electronic filing after implementation.

7. FOUR KEY CRITERIA TO HELP EVALUATE YOUR CURRENT INFORMATION TECHNOLOGY INFRASTRUCTURE.
Successful implementations of electronic filing must meet four IT criteria: 1) the system must be “scalable,” enabling a multi-phase e-filing implementation to progress smoothly as the total number of users and cases increases; 2) the system must be reliable and available 24/7 for filing; 3) support for the internal users, external users, and technical support for the system must be available 24/7; 4) the system and infrastructure must be secure so that care, custody, and control of the documents can be maintained as well as the privacy of sensitive information.

8. WEIGHING THE DECISION TO BUILD OR TO WORK WITH A VENDOR.
While the federal e-filing system is a government owned and run operation, state jurisdictions face a different environment — lacking the resources and sometimes the skills to develop and manage a multimillion dollar complex enterprise application. In reviewing state e-filing projects, it appears that based on the number of registered users and number of documents filed and served, those states that contract for an Application Service Provider (ASP) model are the most successful. Court IT organizations are increasingly partnering to meet their technology project needs instead of building their own applications. Driven by the need to deliver new technologies faster, the risk of project failure, and the increasing rate of change in technology, court administrators and clerks of court face significant risks when building their own systems. To help assess the scope of the projects, there are generally nine steps to which you should assign costs when weighing the decision to build in-house, acquire a system, or work with an ASP. These steps include: initiation, planning, research, evaluation, development/implementation, operation, support, maintenance and upgrades. It is suggested that you weigh all options against these factors before proceeding.

9. ONGOING EVALUATION OF THE IMPLEMENTATION IS CRUCIAL TO SUCCESSFUL E-FILING.
Evaluating an e-filing implementation requires looking critically at what is happening in the project and making a judgment about its value, worth, or benefit. Evaluation is important because it can indicate:
• How the implementation is going.
• What effect it is having.
• What changes we need to make to improve it.
Often people involved in the project can feel threatened by the thought of evaluation as it may suggest criticism by others. However, the essence of evaluation is not to lay blame or fault on people, but to find ways of doing things better and to show what has gone well. Evaluation is a positive process and should involve those who will be impacted. Not all metrics need to rely on external monitoring and instead can be built into the normal workflow. That way those involved in process can be involved in measuring its success and making corrections where necessary. Also remember that different stakeholders may have different expectations or interests to be met or preserved. And make sure to include your external users where appropriate, such as attorneys, paralegals, and law firm secretaries in the evaluation.

10. FINAL RECOMMENDATIONS
Start now! Too many projects are delayed by unnecessary impediments. There is no perfect project plan, and there are no perfect solutions. The sooner the court implements e-filing the sooner the judicial and legal community will realize the benefits. There will be time to make adjustments and changes, and your e-filing can serve as a model for other court technology efforts. It is a “gateway” project that delivers digital documents to the court, improves access to information, and streamlines the intake process.


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