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Panel studies requiring pro se parties to use electronic filing

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Murray SilversteinWhile it might make court operations more efficient and speed service for parties in cases, significant impediments remain to requiring self-represented litigants to give up paper filing and instead use the court system’s electronic filing portal.

A workgroup of the Florida Court Technology Commission’s Portal Subcommittee has been looking at whether, as part of the Supreme Court’s effort to convert the state’s courts entirely to an electronic system, pro se parties could be required to electronically file instead of paper filing. Those litigants now have the option of using either.

A member of the workgroup, Tampa attorney Murray Silverstein, said a review of filings show about 75% of self-represented litigants (SRLs) use paper filing, which slows down the handling of cases in an increasingly electronic court system. A more detailed look at eviction filings in Palm Beach County showed in September 3,066 of 7,488 overall filings were in paper.

Court statistics also have shown the majority of family law cases have at least one self-represented party.

And SRL filing is rising, and at an accelerated pace during the pandemic. According to portal figures, SRLs made 10,794 submissions in October 2019 and that grew to 14,338 in October 2020, with most of that since spring when COVID-19 began restraining court and other activities.

The number of SRLs signing up for e-filing accounts also nearly doubled in the past year.

“Courts get frustrated and other litigants get frustrated because of the lack of simultaneous service,” Silverstein said.

While the goal is to have all filings, including by SRLs, done electronically, “The problem is one of education, it’s access to technology, the difference in economic means in terms of how you’re able to access technology,” he added. “Self-represented people like to have a little more one on one, whether it’s virtually or personally. They need to have some assistance in explaining things.”

Leslie Powell-Boudreaux, executive director of Legal Services of North Florida and a member of the workgroup, said she spoke with officials in Illinois and New Hampshire, both of which recently mandated electronic filing by pro se parties.

New Hampshire, she said, took several steps including on access to computers and the internet, literacy, a statewide helpline, kiosks at clerks’ offices, and providing guided navigation and document assembly online tools.

“Illinois, on the other hand, did not have all those things set up when they started and we definitely heard that they felt like they paid the price. And they had to backtrack into fixing situations, backtrack in form development,” Powell-Boudreaux said.

Illinois also found that getting Supreme Court-approved forms developed for SRL use was time consuming, while New Hampshire developed an expedited form development process, she said. Illinois also exempted from the mandate SRLs who do not have home computers or internet access because it is a financial or other hardship, those with problems speaking or understanding English, those filing a document in a sensitive case such as a domestic violence injunction, and those who need filing assistance that is not readily available online.

Silverstein said a variety of resources — on the Florida courts homepage, from The Florida Bar Foundation, on the statewide e-filing portal with its DIY forms, and other sources — are available but they are not uniformly maintained and updated, not well known, and some use Supreme Court-approved forms and some don’t.

He also said a problem is the time it takes to develop a Supreme Court form.

“What we would endeavor to do through this workgroup is to connect all the parts so that you can access the same system regardless of your point of entry; make the terminology, the tutorials, the overviews, the access to court rules and forms all [easier]; and then provide tremendous education and outreach,” Silverstein said. “We’re hoping to get this optimized to the point where you get to the right information. If you’re trying to navigate through this…it’s confusing and it’s complicated.

“The biggest obstacle to this process going forward is the swift development of forms,” he added. “They should all be court-approved forms, but that process has taken far too long.”

Subcommittee member Tom Hall, a former clerk of the Supreme Court, said there’s also a distinction between Supreme Court-approved forms and approved forms where non-lawyers can assist SRLs. He said the Bar’s Unlicensed Practice of Law office should be consulted on whether helping SRLs with some forms would be UPL, and clerks have found many SRLs are reluctant to use online assistance even when it is available.

“It’s not going to be easy but it’s definitely something we should be trying to do,” he said.

At the full FCTC meeting on November 20, commission member and Clay County Clerk of Court Tara Green asked, “Is the end game to make this [mandatory SRL e-filing] a requirement?”

“The Supreme Court’s end game for years has been to promote electronic transmission of these documents,” replied Portal Subcommittee Chair and 17th Circuit Judge Martin Bidwill.

As a judge, he said, “it’s very difficult to serve people by hard snail mail, it’s a challenge and it’s a challenge of picking it all up in a sea of electronic orders…that we’re sending and making sure that people who are on those service lists are getting the hard copies.”

He said many pro se parties are capable of doing electronic filing, but don’t know about it or resources to assist them.

“On the flip side…there’s some significant issues with regards to access to the courts if we’re going to say this is the only way because a lot of people just can’t take that way,” Bidwill said. “The hope is to move forward as much as we can to people who are capable…to be able to electronically submit back and forth with the court.”

The workgroup had looked at recommending a test program in some jurisdictions where landlords in eviction cases would be required to do electronic filing, but ultimately decided more study is needed.

The workgroup will report again when the subcommittee meets at the FCTC’s February meeting.

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