After 10 years, e-filing transforms courts, law practices
In October 2010, Kevin Sharbaugh became a member of The Florida Bar and joined the small law practice of Keyser & Woodward (now Keyser & Sharbaugh) in Interlachen, population (according to the 2010 census) of 1,041.
The practice was and is in a house dating from the 1880s and has artifacts from its past years preserved.
“When I started, the two partners were using 3.5-inch floppy disks for client files and the senior partner handed me a Rolodex” and asked him if he was interested in using it, Sharbaugh recalled.
He wasn’t, and he added the rotary file to the other antiquities in the house.
But soon Sharbaugh was involved very much in the 21st century practice of law. In January 2011, the new lawyer was one of a handful across the state who was working with five clerks of court to inaugurate the state court system’s new statewide e-filing portal.
Putnam County Clerk of Court Tim Smith was one of those initial clerks working to get the system up and running. It had been mandated by the Legislature in 2009, and an interlocal agreement between the Supreme Court and clerks of court created the Florida Court E-Filing Authority. The authority began meeting 10 years ago to set up and run the statewide online entry point for the court system.
Sharbaugh and a few other attorneys were working with clerks to test and launch the system.
“I believe I was the first attorney to file a case in Putnam from its inception,” he said, adding other attorneys had filed documents in existing cases. His was a divorce or paternity case.
Sharbaugh said he worked with Julie McClain, who Smith had charged with implementing e-filing. He said it helped that his wife used to write computer programs for CSX Railroad, and he would beta test them. That, he said, helped him describe problems and experiences testing the initial e-filings.
That January, Sharbaugh and his fellow test pilots made 229 filings with five clerks in a handful of the 10 civil divisions.
By last January, that monthly volume had grown to almost 1.6 million filings with 2.3 million documents totaling 11.7 million pages, covering all 10 civil divisions and criminal matters (criminal complaints, which arrive largely from police departments and sheriffs’ offices, still come via paper filings). The COVID-19 pandemic and restriction of most in-person court proceedings has cut those filings by about 30% by May, but they are expected to gradually recover over the next few months.
The average daily filings between 1 a.m. and 2 a.m. (the portal is a 24/7 operation) were 227 in January 2020 — about the same as for all of January 2011. The peak 3 p.m. to 4 p.m. time averaged more than 9,000 daily filings.
Instead of a handful of lawyers experimenting with a few clerks on setting up e-filing, 79,608 attorneys registered to do e-filing, 1,217 judicial users signed up, and 154,108 nonlawyers registered. Pro se users typically sign up to handle a case they’re involved in, and then don’t use the system again.
Attorneys account for about 82% of all filings through the system, and judges do about 10% of the volume, with pro se users accounting for less than 1%. Process services are able to use the portal to file paperwork and make up about 2.3% of the volume. The other users are law enforcement and other government agencies, such as the Department of Corrections and the Department of Revenue..
E-filing enabled a tectonic shift in the courts long sought by the Supreme Court, pushing the transition from paper to electronic records. Paper filings and records were the norm 10 years ago. And while paper remains necessary for some court functions, notably the initial filing in criminal cases, it’s common for an entire case to be filed, litigated, decided, appealed, finally disposed, accessed by the public, and archived, without a single piece of paper grinding through a printer.
That transition took administrative orders from the Supreme Court, efforts of the portal authority, the Florida Courts Technology Commission, Bar rules committees, attorneys and their staff, clerks and their staffs, judges, court administrators, court staff and untold hours of work to fit all the parts together.
E-filing was definitely one of those key parts.
“E-filing represents such an advance in operational efficiency for the courts, for clerks, for attorneys it’s hard to think about doing without it. That’s under normal conditions,” said State Courts Administrator Lisa Kiel. “Now, imagine where we’d be in the extraordinary circumstances of the pandemic without e-filing. I think this extreme situation tells you how valuable it has proven to be.”
“Florida is the only state in which all jurisdictions (trial courts, district courts of appeal, and Florida Supreme Court) file electronically through the same single point of access, the Florida Courts E-Filing Portal,” said Savannah Sullivan, spokesperson for the Florida Court Clerks & Comptrollers (FCCC). “An industry pacesetter, the portal provides a simple and secure electronic solution for Florida court system users while saving filers thousands of dollars in related expenses.”
The portal is also unique among states with e-filing, Sullivan said. In most other states, the courts control the e-filing process. In Florida, the portal is governed by the independent Florida Courts E-Filing Authority.
How It Started
The authority came about after the Legislature mandated in 2009 that electronic filing in the courts start by January 2011. Finances strained by the ongoing Great Recession, it appropriated zero dollars for that effort.
The Supreme Court and the Office of the State Courts Administrator began preparing a request for proposal, hoping to find a vendor who could set up a program and find a way, perhaps by offering ancillary services, to pay for it.
In the meantime, the Florida Association of Court Clerks & Comptrollers (the old name for the FCCC) explored whether the statewide system it had inaugurated for all clerks to accept electronic filing for recorded documents could be expanded to become an e-filing system for courts.
Discussion ensued and the result in June 2010 was an interlocal agreement between the courts and the clerks’ association creating the e-filing authority. The nine-member board included eight county clerks of court selected by the FCCC with the Supreme Court clerk being an automatic member. The FCCC provides at-cost staff support.
“We had to plow a lot of ground to get where we ended up,” said Kiel. “We hit on a concept that has absolutely worked to address the needs of the people who come to the courts. More than that, it’s solidified a partnership with the clerks and created an environment of collaboration on court access issues.”
“[T]he Interlocal Agreement…was a rough outline of what we should be doing, but no real roadmap,” said Columbia County Clerk of Court Dewitt Cason, who chaired the e-filing board when e-filing went online. “The Legislature gave us a deadline of January 2011 to have an e-filing portal up and running, so we had to start from the ground up. But we handled it like any other statewide project — we worked in phases. And it was, at times, not easy. However, by that January, five of the 10 trial court divisions were available and we had five pilot counties with a handful of attorneys e-filing. As we met though the fall of 2010, we had estimated a volume of about five million filings a year. We had no idea that within a few years the numbers would show that there would be over a million submissions a month.”
“E-Filing became mandatory [through a Supreme Court order] for all attorneys in all civil divisions in [the spring of] 2013,” Sullivan said. “Soon after, October 2013, all attorneys were mandated to file electronically to all criminal cases.”
Those involved say the Supreme Court, under Justice Ricky Polston who was then chief justice, played a key role by setting goals and deadlines, including timeframes for clerks to offer e-filing and for attorneys to use it.
Deadlines were imposed first for civil and then criminal filings, and although some clerks needed extensions, all made the transition. By April 2013, all 67 counties could accept civil filings in at least five of the 10 civil divisions.
The Supreme Court began accepting limited electronic filings in February 2013 and before long went completely to paperless filing. District courts of appeal, which had their own e-filing system, switched to filing through the portal a couple years ago.
When criminal case filings, except for initiation, the portal authority worked with state attorneys and public defenders to allow “batch filing,” submitting documents to several different cases with one filing action. Batch filing was also developed for civil filings and now can be done through third party vendors who offer filing services to law firms.
A 24/7 Resource, From Anywhere
“I think a major significance is the court can keep going 24/7 pretty much no matter what happens,” said former Supreme Court Clerk Tom Hall, of the portal’s impact. He was an original member of the e-filing authority and now consults for the FCCC as well as practices appellate law.
Pointing to the pandemic, he added, “It really has changed the way that people practice law, in the sense that the courthouse is open 24/7 and you can practice from anywhere.”
Current Portal Authority Chair Tim Smith, Putnam County clerk of court, agreed on the impact.
“It’s kind of hard to talk about the importance without speaking of the current environment we’re in with the COVID pandemic,” he said. “What that has shown is how valuable this effort and the portal and remote access to the courts is and has been…
“The portal has completely altered the access to the courts, particularly for the legal community and we’re also seeing more use by pro se filers now.”
Smith pointed to the savings in time and money for lawyers. There are no printing costs or paying a runner to take documents to court. The portal now handles service of filed documents, saving further paper, ink, stamps, and time. It might take a few days for a mailed paper document to reach the clerk, get reviewed, and put on the docket. Now statewide the average is a few hours.
Savings in postage alone exceeds $50 million, Smith said.
The portal adding e-service was also a notable advance, Smith said.
“Anytime we filed documents with the court, the filer had to provide copies and addressed, stamped envelopes to notify all the parties in the case,” he said “Now when a case is opened, email addresses get loaded in by the opening document and then subsequently anything that is filed in that case, the portal emails that document to all of the parties.”
Bar Board of Governors Laird Lile said the e-service function has been a huge boon for practitioners. He served on an e-service workgroup that addressed that, working with the FCCC’s Portal Program Manager Carolyn Weber and other people.
“All of a sudden in a very short period of time, the portal had it,” Lile said, adding costs for postage and printing and paper has dropped dramatically.
Better Access
Sarasota Clerk of Court Karen Rushing, who has served on the portal authority since its inception and who will replace Smith as chair later this year, said a major benefit has been improved access to court records, for judges, lawyers, and especially the public.
Instead of clerks physically copying documents and putting them in folders, now that sorting is done electronically. And instead of files being physically delivered to judges or made available over the counter to lawyers and the public, they’re digitally available from anywhere.
“I think the thing that is most helpful is more than one interested person can look at a record at a time,” Rushing said. “If a judge wanted to look at the [paper] file, then no one else could. In that regard, access has improved dramatically.”
Making court records available online, as well as transitioning courts from paper-based to electronic records have been long-time goals of the Supreme Court.
One example of the joint effort from multiple justice-system participants necessary for e-filing and related advancements is the Florida Courts Technology Commission, which is in charge of overall court-related technology and oversees the conversion to an electronic-based court system.
The FCTC developed the “matrix,” not a version of the hit sci-fi movie series, but a chart that protects confidential information by determining who has access to sensitive information in court files. That enables electronic access to court files.
Florida Bar rules committees, notably the Rules of Judicial Administration Committee, refined procedural rules as the courts and legal practices shifted from paper to electronics and things like service changed from faxes, mail, and hand delivery to lawyer-sent emails and then electronic service accomplished automatically by the portal.
“When the electronic world sped up our practice, each of the rules committees looked at their bodies of rules and extended deadlines where they thought was necessary to prevent any prejudice,” said Sandy Solomon, a long-time member of the Rules of Judicial Administration Committee.
There were whole new considerations that had to be covered in procedural rules, he said. That included the Supreme Court’s goal of having records available online while at the same time protecting confidential information (which led to Rule of Judicial Administration 2.420) and ensuring that e-filing and the electronic courts world were not used to “game” the system by, say, dumping a cache of documents that has a time-response deadline on an opponent at 4:55 p.m. Friday.
Portal Funding
While the portal has continued to grow, evolve, and offer more services, perhaps nothing signals its maturity as the mundane issue of finance.
Smith, the outgoing portal authority chair, said that the FCCC had the basic programming to operate the portal, and it still required a substantial investment — without any state assistance.
“There was a commitment made at the Legislature that we would build the portal, the initial part, at no cost to the state. The clerks’ association committed $5 million to that,” Smith said. “Then subsequently, they funded the portal at $650,000 a year. Then three years ago, the portal was able to self fund the operation.”
The portal allows attorneys to pay filing fees and other charges via ACH or credit card. The authority gets part of the credit card merchant fee and a flat fee on ACH transactions.
With around $7 million in revenues, the portal allows the authority to operate in the black and to recently set up reserve funds to allow for technological innovation and unforeseen shocks. It also provided the money several years ago to pay for a greatly expanded service desk, which reduced the time to respond to help inquiries from attorneys and other parties from a day or more to a few minutes.
“That was huge and still is huge,” Smith said. “When this all kicked off, there wasn’t much thought about the service desk, but immediately people started having questions.
“Now we have a team, eight to 10 folks, who do this. We are also in the middle of a conversion to a help desk that will use more technology platforms, which will help folks get answers quickly without having to talk with someone.”
What’s Next
As e-filing has grown and evolved, with twice-yearly updates, officials overseeing it are also eyeing what the future holds.
One ongoing project is an artifact of the way the statewide e-filing portal evolved.
As Carolyn Weber, the portal program manager for the FCCC, noted, a key decision was to work with the existing case management systems used by Florida’s 67 clerks of courts rather than require all clerks to use the same CMS. She attributed that decision to Melvin Cox, the FCCC’s IT director who closely oversaw the portal’s creation.
“Other states that have contemplated a statewide portal developed or required that all connected to it use the same CMS,” Weber said, and that proved an expensive stumbling block in many cases.
Cox instead “decided that the portal would be the workhorse and do the connecting to the counties regardless of the CMS they used,” she said. There are about 10 different CMS programs used by clerks.
Palm Beach County Clerk of Court Sharon Bock, an original member of the portal authority board who is leaving this year, said that decentralized decision, endorsed by the Florida Courts Technology Commission, was key to avoiding an expensive centralized system that has tripped up other states trying to do e-filing.
“That really was the historic beginning, the historic turning point of the e-filing authority,” Bock said. “Had we decided otherwise, had that argument not prevailed, we would have required more funding, more hardware, and more programs.”
That allowed for the portal to be set up quickly. It also preserved local customs and procedures set up to meet local needs, which meant local lawyers encountered familiar forms and case types when using the portal.
But it also meant that lawyers filing in other jurisdictions frequently encountered different terminology and processes when filing. Different counties labeled the same type of document with different names. Drop down menus might list five types of subdocuments for a case type in one county, another one might have no subtypes.
Sarasota Clerk of Court Karen Rushing, an original member of the e-filing authority board and who will succeed Smith as chair later this year, is heading up a subcommittee working to bring standardization to the e-filing and docketing description and procedures.
“This is an enormous challenge,” she said, adding clerks, attorneys, and court administrators all have to play a part.
Rushing said in a way it’s a “mutually inconvenient to all” process.
“The state is big and it’s diverse. If everyone has to do everything the same way, you can imagine how it would be mutually inconvenient to all. Miami has needs that Suwanee doesn’t,” she said. “Standardization will take away some of the individualism that is inherent in the different ways the respective circuits operate.
“We have this constituency in the Bar who wants to have uniformity so one county looks the same as another for practitioners who cross boundaries,” Rushing continued. “From the Supreme Court’s perspective, you want to make sure we are counting the cases all the same way.”
Palm Beach County’s Bock said electronic filings and documents will pave the way for more automated handling of court records. She has been a leader in using artificial intelligence to sort, file, and scan documents for sensitive information.
“We have artificial intelligence, we have smart computers that are doing a lot of what we would consider simple work,” Bock said. “They’re reading the e-filed documents, they’re automatically docketing them. We are able to store and retrieve electronically. About 37% of our documents are now done automatically.”
She predicted public-private partnerships would be developed to pursue such improvements.
Other issues, Bock said, will include better security for court data systems to forestall hacking and protect confidential information. Like many others, she said getting police agencies to file initial criminal paperwork through the portal will be a goal.
And using e-filing and other tech changes to provide better service to judges, attorneys, other court users, and perhaps particularly to pro se parties, will be addressed.
“Our office is still the emergency room of the courthouse, always has been and always will be,” Bock said. “We’re going to continue to build functionality for do-it-yourself for people who want to use the court system.”
The COVID-19 pandemic will also be a factor, Bock said, adding, “Our service model is completely disrupted because of the virus. There’s no question that remote work and how we engage with each other will change.”
Sharbaugh, the Interlachen attorney, agrees with much of Bock’s assessment as he looks back at his transition from Rolodex to electronic filing and remote hearings.
“Technology, and things that spur or kind of help technological advancement, they can be painful in their implementation but many times the benefits, once realized, are profound and can be far reaching,” he said.
As an example, Sharbaugh said e-filing and the resulting transfer to an electronic court system means not only easier and faster access for lawyers and judges, but also for clients, who can be added to case e-service lists to automatically get newly filed case documents.
Likewise, while the electronic records made it easier for courts to go to remote hearings to keep business going during the pandemic, it wasn’t only lawyers and judges who realized the efficiencies.
“Now we’re doing remote hearings via Zoom; I’m doing consultations via Zoom with potential clients and new clients,” Sharbaugh said. “This democratizes the access to the court system for people…who have a job and they can’t afford to take a day off to go to court and wait for a hearing.
“I’m able to go to a hearing, I have my client there on Zoom, they’re able to go back and get on with the things in their life that are critical.”
The key, he said, is “making sure safeguards are in place, but to step boldly into the technological present.”
Sarasota Clerk of Court Rushing, the incoming authority chair, expects many more “steps” because there will also be a quest to improve things.
“It’s not unique to the courts, it’s the, ‘That’s what you gave me yesterday, what are you going to do today,’” she said when asked about the biggest problem facing the portal’s future. “It’s our thirst for more and better. It makes many of us feel we’re on a gerbil wheel running around. It is the way it is.”
