Article Title

 

The View from the Electronic Bench

 

Author

 

David Nuffer

 

Article Type

 

Views from the Bench

 

Article

 

Judge Thurman's bench at the bankruptcy court, shown in the photo at right, looks more like the control deck of the Starship Enterprise than a traditional judge's bench. Two computer monitors are embedded in his bench, and a keyboard and mouse are his controls. No papers in sight! Similarly, my office desk has a two-headed computer, with one screen for documents I am creating and one screen for documents I am reviewing, retrieved from Westlaw or the court file. This will be the look of more and more judicial workspaces. Courts are following the business trend of moving from paper to electronic files which means the judge's file will be a computer file, not a paper file. Electronic Files The move to electronic files is a major transition for tradition-entrenched courts. State courts, where over 90% of all cases are filed, are taking multiple approaches to electronic filing. Massachusetts, for example, has different e-filing programs in its criminal, probate, civil and juvenile courts. Each court has adopted distinct programs. Some counties have their own e-filing programs. In the federal court system, by the end of 2005 almost all trial courts will be on a uniform electronic file system. The federal court e-filing system is called CM/ECF, Case Management/Electronic Case Files. To date, 23 district courts and 60 bankruptcy courts have electronic files. Utah's Bankruptcy Court has been on this system since early 2003 and the district court is anticipated to be on the system in the summer of 2004. Many Utah lawyers working in the bankruptcy court or in other districts are already using CM/ECF. Utah federal practitioners are familiar with PACER, which allows access to electronic court dockets. Utah's district court has been ahead of the technology curve by including images of many case documents in PACER. Under Utah PACER, many court documents are available electronically. As of the date CM/ECF is implemented, all new case documents will be electronic in their original form, and very little new paper will be retained. Electronic Filing by Attorneys When the court's case file is electronic, there are compelling reasons to allow attorneys to file papers electronically. Now, almost all attorneys create court papers electronically, and then print, copy and deliver the papers to the court, which digests the papers into the docket, scans them into an electronic file, and files the paper original. The attorney also mails paper copies to other counsel. Under CM/ECF, all the "paper" steps of this process may be eliminated. Documents created electronically by attorneys can be transmitted electronically to the court, as the attorney digests the document into what becomes the docket entry. Immediately upon filing of a document, an electronic notice is mailed to the filing attorney, all counsel of record on the case and court personnel, including judges, responsible for the case. The electronic notice of filing includes a link to the document filed, so that all e-mail notice recipients can retrieve, view and save the document without charge. A document filed electronically is thus served electronically, within about 15 minutes of filing. Most courts implementing CM/ECF have allowed electronic filing within a few months of the time the electronic file becomes the official record. Utah's bankruptcy court permitted electronic filing in September 2003, nine months after files became electronic. Some CM/ECF courts make electronic filing mandatory for attorneys after a longer period of experience with the system. What a CM/ECF User Needs The design of CM/ECF provides for low-cost user access to the system. Any modern PC with Internet access and Web browser software can access CM/ECF. Retrieving electronically filed documents requires the Adobe Acrobat Reader software, which is available at no cost from Adobe over the Internet. Software that can create PDF documents is required for filing. Any word processor can be used to create a document to be filed, and the PDF creation software will convert the document to PDF format. WordPerfect includes PDF creation software. A document that exists in paper, such as an exhibit, will need to be scanned for CM/ECF filing. Almost any scanner, when used with PDF creation software, can create a PDF version of the paper document. Documents are filed and viewed through a web browser, such as Internet Explorer or Netscape Navigator. Notices under CM/ECF are received via e-mail. CM/ECF will likely cause an increase in practitioners' e-mail, so some training in e-mail management and storage may be required. The steps all CM/ECF users should take are: Learn to use a keyboard, mouse, web browser and e mail. Sign up for PACER. Sign up for e-notice. Take the on-line CM/ECF Training. Take the live CM/ECF training. Register as a CM/ECF user. Use CM/ECF. The first four of the above steps can be taken now. The following additional steps may be taken by designated persons in a firm, or by all users: Acquire software and learn to convert word processing documents to pdf format. Acquire a scanner and learn to convert existing documents to pdf format. Decide how to manage e-mail notices of electronic filing, and the files created in your office and received by your office. Take advanced CM/ECF Training. Become a CM/ECF Trainer for your firm. Questions Any new system such as CM/ECF generates many questions. Most of these are answered on the general information pages referenced in the sidebar that follows this article. But a few short answers may be helpful: Pro se filers will not be required to e-file. Mailed notice will still be available to those attorneys not receiving e-notice. E-notice recipients still have the three days additional time tacked on under Fed. R. Civ. P. 6(e). Attorneys will retain original signed affidavits and declarations, filing scanned documents or electronic documents with an "/s/" signature. Large, color, or unusual exhibits will be retained in paper form. Cases will not be initiated by direct electronic filing under CM/ECF though electronic complaints may be e-mailed to the court to be filed. A docket clerk must collect a fee, open a case and add parties and counsel to the court's system. Judges may still require courtesy copies of papers and exhibits in dispositive or other significant motions. Some paper documents, such as indictments and judgments will be retained. Filing attorneys are required to redact some private information from documents before e-filing. If the system is down, there will be relief from filing deadlines in non-jurisdictional circumstances. Security and fail-over preparations mean that system outages of over an hour will be extremely rare, except for nightly backup which will probably take a few hours after midnight. Prediction Judge Thurman's bench and my desk arrangement will be replicated in many offices as lawyers turn to electronic files and electronic filing. The use of paper will decline, but never disappear, as electronic files and filing increase access and reduce costs. The increased use of purely electronic media will lead to efficiencies in courts and law offices, enabling us all to serve more people. AUTHOR'S NOTE: The assistance of Cass Butler and David Leta in preparation of this article is greatly appreciated. For Further Information Federal Court Information Electronic (e-mail) noticing http://www.utd.uscourts.gov/documents/enotice_info.html PACER (Public Access to Court Electronic Records) - http://pacer.utd.uscourts.gov/ Electronic case filing (CM/ECF) http://www.utd.uscourts.gov/documents/ecfpage.html This page includes on-line training modules, Q & A, and information about hardware and software, scanners and PDF, along with links to national court sites. Privacy Policy http://www.utd.uscourts.gov/documents/privacy_ntc.html PDF Software Adobe Acrobat (full version - reads, writes and manipulates PDF files) http://www.adobe.com/products/acrobat/main.html Adobe Acrobat Reader (free version - reads PDF files) http://www.adobe.com/products/acrobat/readstep2.html CutePDF (free - writes PDF files) http://www.acrosoftware.com PDF Factory (low cost - writes PDF files) http://www.softwarelabs.com/pdf/pdffactory.htm State court electronic filing http://www.ncsconline.org/wcds/Topics/topic1.asp?search_value=Electronic%20Filing State court electronic filing standards http://www.ncsconline.org/D_Tech/Standards/Standards.htm