By Gary Blankenship
Except in a handful of counties and the First District Court of Appeal, virtually every document filed in Florida courts is done by paper.
In less than two years, that’s almost certain to be reversed. Paper filing will be the rare exception, and electronic filing will be the order of the day. So likely will be the electronic serving and sharing of papers.
The impacts will extend beyond filings for the courts. Lawyers involved in the process and court clerks say law firms will find it difficult — if not prohibitively expensive — to maintain electronic documents for their court-related cases and files and paper files for other matters.
Court clerks have already discovered this.
“I think it needs to be articulated many, many, many times about the costs of a dual [paper and electronic] system,” said Palm Beach County Clerk Sharon Bock at a recent meeting of the authority that oversees the Internet portal, the gateway for electronic filing. “I’m not absolutely certain the message is getting out there that it is financially impossible for the clerks to maintain two systems for any length of time. Even for six months, it would be almost impossible to do it. We simply don’t have the resources.”
Jacksonville attorney Paul Regensdorf, a member of the Florida Courts Technology Commission who has been heavily involved in e-filing matters, says lawyers will not be far behind in learning that lesson.
“This is going to eventually change everything about how you practice,” Regensdorf said.
Laird Lile is a member of the Bar of Governors and also serves on the Florida Courts Technology Commission. He closely follows e-filing and related issues, including attending meetings of the Florida Courts E-Filing Authority, which is in charge of the statewide portal that will be used for e-filing.
The coming electronic revolution can be a challenge but also a boon for law offices, he said. Lile said he went “paperless” about a year ago and found it increased efficiency and cut expenses.
“Our paper costs and postage costs have dropped incredibly,” he said.
“In our engagement letter, we tell clients we believe it’s more efficient to communicate with them electronically and if they don’t want that, let us know,” he added. “Our practice is to acknowledge all communications with an email and to let us know if they don’t receive one after sending something to us.”
The coming of e-filing and e-service “for an office like mine where we’ve been scanning and where we’ve not had paper folders for about a year now, it won’t mean much. It means things will be that much easier. For the law firm still using the typewriter, it means major adjustments,” Lile said.
Time is Short
By July 1, court clerks have said they will have the ability to receive civil filings in all five divisions in all of Florida’s 67 counties. By the end of the year, they expect to have the capability for all criminal cases as well. Appellate courts are scheduled to be able to accept e-filings by July 1.
In response to a Supreme Court request in a pending rule case, the FCTC has recommended electronic filing for civil cases be mandatory by April 1, 2013, (less than 14 months from now) and criminal filings be mandatory by October 1, 2013.
That rule case (case no. 11-399) remains pending, and the Supreme Court has asked three questions, with the answers due by February 6 (see sidebar). But the nature of those questions indicates the court remains fully committed to approving mandatory e-filing in the near future.
Trying to get ready for that day, a dizzying array of committees, commissions, and other organizations have been writing rules, setting standards, and setting up the statewide Internet portal that will accept and route e-filing for the entire court system, trial and appellate. Rules, programs, and processes are written, approved, and implemented piece-by-piece. Consequently, it can be difficult for lawyers to comprehend the whole spectrum of changes bearing down on them.
Rules You Need to Know
For example, it won’t be enough to just understand the technology of how to do an electronic filing with the proper court clerk. Lawyers must also vet their filings for confidential information because court records will be available to anyone over the Internet. Part of that confidentiality rule requires lawyers to certify they have reviewed a filing for confidential information and a related question has been raised on whether lawyers can delegate that duty to paralegals and legal assistants.
Another rule addresses the habit of lawyers, seeking to be on the safe side, stuffing unnecessary information into court files. This rule limits information that must be filed.
As Regensdorf noted, e-filing — and the resulting electronic access to court records — means the days of “practical obscurity” with paper files is over, because it will only take a trip to the keyboard instead of a trip to the courthouse to see a court file.
“Soon the court files will be electronically available to you, to me, to the public, to everybody,” he said. “It’s going to be a whole lot more available to everybody.”
Most of the implementing guidelines, for lawyers, are being incorporated into procedural rules. Here are some of the pending or decided rules cases that affect e-filing and related matters:
• Case no. SC11-399, pending at the court, is the rules case that would actually make e-filing mandatory.
• Case no. C10-2101, also pending at the court, would make e-service mandatory. It was originally intended by the Rules of Judicial Administration Committee to be a stepping stone to e-filing, but the case is still pending at the court. The court has asked for input on whether e-filing and e-service should have the same mandatory deadlines.
• Case no.C11-52, decided last year, affects RJA 2.525 and mandates that electronically filed documents be accessible to those with visual impairments, in accordance with state and federal laws. That basically allows the documents to be read via a computer program to the visually impaired, with explanations for items in the filings that aren’t straight text, such as signature blocks, pictures, charts, and the like. The court approved that rule amendment September 28.
• Case no. SC07-2050 approved last March by the Supreme Court, spelled out how confidential information will be protected in court filings, and how to get a judicial determination on information that isn’t in one of the 20 automatically confidential categories but which might justifiably be kept from public view. The rule (RJA 2.420) requires that attorneys, when filing a document with information, also file a form notifying the clerk of that confidential information so it can be kept out of publicly accessible court files. The Rules of Judicial Administration Committee has since filed an amendment tweaking the rule.
• Case no. SC08-2443, approved by the court in June, minimized the amount of personal information that has to be in court files. It’s covered in RJA 2.425 and has corollaries in several other procedural rules.
For attorneys, there will be many challenges — but also at the end, many benefits.
Advantages and Challenges
Sarasota County Clerk Karen Rushing is one of a handful of clerks who had a pre-existing e-filing system, either for some or all case filings. She outlined some of the advantages and likely issues e-filers will encounter.
One advantage: With paper files, only one person at a time can review a court case. Electronically, “we could have 15 people looking at the same document at the same time. If we have a lot of demand for a particular document, this allows us to have multiple people looking at it at the same time.”
She anticipates few problems shifting her existing e-filing process to the portal, but noted at the moment the portal doesn’t have all the services her local program offers. That includes allowing attorneys to specify a case they are interested in (but not necessarily a party to) and receive an automatic notification every time a document is filed — she expects to continue that option locally until the portal catches up statewide.
State attorneys and public defenders will have special problems, Rushing said, because they need documents from a variety of agencies — law enforcement, juvenile services, social services — which may not originally be part of the electronic court filing system. They must also protect confidential information, including juveniles’ names. (Those agencies consequently sought broader latitude in going to e-filing, but the Supreme Court in a recent order said they sought too many exceptions. It asked for recommendations on reducing those. See sidebar.)
Electronic service can offer an advantage, since lawyers will be able to substitute an electronic message for printing and delivering reams of papers. But problems will remain, just as with current service protocols.
“There are instances where you can’t rely on electronic service because you don’t know where the other side is,” Rushing said. “A lay person may not have a regular email and won’t have a counsel until served.”
Two of the biggest concerns will be complying with Rule 2.420 on protecting confidential information and complying with Rule 2.525 on accessibility for electronic filing.
Anecdotal evidence suggests there is widespread noncompliance with Rule 2.420 even though it is already in effect. There have been contradictory predictions about whether clerks will be able to help with screening software for electronically filed documents.
Manatee County Clerk of Court Chips Shore, who set up the first independent e-filing system several years ago, recently said he thinks software can catch virtually all the confidential information in court filings. Rushing isn’t so sure.
“There are software applications around that can be relied upon to do certain things effectively [like finding] Social Security numbers and the bank account numbers,” she said. “But the software cannot do everything, and we have obligations, such as protecting the identity of victims.”
Supreme Court Clerk Tom Hall said software will help.
“The portal is going to have redaction software built into it that will screen for the 18 or 20 things on the list under Rule 2.420,” he said. “On the appellate level we’re going to have a second redaction software that will screen it again.
“It’s our opinion that’s going to catch the vast majority of it, because these systems really work.”
But attorneys filing documents electronically will be required to check a box that says there is or isn’t confidential information in the submission, Hall said, which should remind them about confidentiality issues.
Software will also help with accessibility compliance, said Hall and Supreme Court Public Information Officer Craig Waters. That compliance involves the ADA, what are known as federal Section 508 requirements, as well as state law.
“There is the minimal level of compliance which most people agree upon and most people can achieve,” Waters said.
Compliance means running a document through the appropriate software, and labeling items such as pictures and charts that can’t be read by accessibility software — Hall likened it to tagging pictures on Facebook. The good news is the latest versions of Adobe’s PDF software and Microsoft’s Word have that capability built in, Hall and Waters said. The bad news is many law offices may not yet have that software or may be comfortable with and prefer using older versions.
And that points out another requirement of e-filing. Hall said the portal supports all major browser software as well as documents prepared with Word or PDF software.
But lawyers who like a less popular word processing program or use an experimental or offbeat browser, and canot convert documents to the PDF format, may find themselves unable to file through the portal.
Hall said that’s a small part of a larger problem law firms — including big firms — may face as the electronic age has the potential to force some forms of digital conformity.
Hall said there may not be uniformity now within some large law firms, as a branch in one city may use mostly electronic documents, while another city uses mostly paper files, and perhaps a third branch favors a different word processing software. The demands of electronic filing and electronic service are likely to require a uniform electronic system for all branch offices.
Of course, central to the new electronic world is the portal and the e-filing system itself, which have just passed their first birthdays.
Melvin Cox, of the Florida Association of Court Clerks, is overseeing the development of the portal and the supporting software.
He said current efforts focus on getting counties hooked into the portal. At the start of the year, 42 counties were accepting at least some of the five types of civil cases. By the February 1 meeting of the Florida Courts E-Filing Authority, a schedule should be ready for connecting the remaining counties to accept civil filings by July 1.
After that, the focus will be connecting all counties for criminal cases by the end of the year.
At the moment, around 6,155 attorneys are signed into the e-filing system, although most are not regularly filing. Almost 35,000 documents — a small fraction of the millions filed annually with Florida courts — have been e-filed. Most of the use is voluntary as clerks test the system and their ability to receive and handle cases. But the growth is starting to be exponential and will continue to grow, Cox said, as more and more counties go online and the mandatory e-filing deadlines — whenever those are set by the Supreme Court — draw nearer.
“The volume is going to be small until that time it is made mandatory,” Cox said.
Once the basics are in place, the portal will then be continually improved to make it more functional and easier to use. Many of those improvements are already being addressed, even as the portal is still expanding to all counties and all types of cases.
“As you hit more counties and get more volume, you’re going to get new ideas from folks; ‘Hey, wouldn’t it be a great idea if you did this?’ or “Hey wouldn’t it be smoother if you did this?’” Cox said.
Added Beth Allman, spokesperson for the FACC, “As with any new system and new idea, there are plenty of things to be done, but from a basic standpoint, it works, and it works well.”
Her advice for lawyers: Sign on to the electronic filing system now, follow the changes and upgrades, and be ready for the mandatory deadline.
One of the key parts of the electronic system, but one not often of direct concern to lawyers, is how the electronically filed information will be delivered to judges. Judge Judith Kreeger, chair of the Florida Courts Technology Commission, said the electronic system will fail if it does not deliver the electronic cases and documents to judges in a usable format.
The FCTC is working hard on that.
“Committees are developing standards for information to be delivered to the judges,” she said. “Before the clerks can get rid of paper, the clerks and chief judges of each county have to sign off on a plan, which will include delivery of information to the judges. So the chief judges should be very much participating in the development of these plans.”
“The standards are being developed. It’s a work in progress,” Kreeger added. “It’s not going to happen tomorrow. The clerks are going about the business of preparing to accept electronic filings in a very sensible manner. They’re testing in quantities they can absorb. They’re not opening the floodgates until they’ve developed the capacity to deal with it. And I think the case management systems are being developed simultaneously around the state. They have to come together because otherwise it’s shifting the responsibility for printing of paper from the lawyers’ offices to the clerks’ offices to the judges.”
Those working with the electronic system expect some problems and urge patience.
As the FACC’s Cox said, “You’re undoing 100 years of the paper world, and it’s not going to be done with one conference call.”
Added Rushing, the Sarasota County clerk: “I think we’ve got to take steps forward and deal with the ones that cause problems and keep moving. If you wait until everything is perfect, something else happens to make perfect less perfect.”