September 2003
Justice at Web Speed
by Tom Clarke
Washington state courts are rapidly moving toward doing much of their business online, a trend that will impact lawyers in a big way. Though electronic services may be somewhere in the future in many counties, attorneys can begin preparing now for what lies ahead.No traffic, no parking, no waiting.
In July, Pierce County attorneys were greeted by the opportunity to do business with the county courthouse in a new way: by accessing many court documents and filing notices online, instead of in person or through messengers.
Pierce County's new E-Access service provides attorneys with PINs (personal identification numbers) and the ability to view all publicly filed documents (the county started scanning documents about 20 months ago) through its website, as well as the ability to view confidential documents for attorneys of record, to strike or confirm proceedings, to download document images to an office computer, and to e-file notices of appearances and other notes.
Attorneys have first access to the system—they'll be surveyed over the next few months on what they think of it—then other businesses and the public will be offered some of the services.
"Our plan is to launch this to anyone who feels they would have a business use for it," said Pierce County Superior Court Clerk Kevin Stock. "We are looking at title companies, the media, investigation firms, and others as main users of the system along with attorneys. Public data will be available free on the county's website, while access to document images and other online services will come at a fee,"
Stock said.
The project is one of several pilots statewide, as Pierce joins Chelan County (which hired a vendor to manage online justice services), Yakima County (which allows drivers to argue traffic-citation mitigation online), and King County (which is developing a pilot program now; see article on page 26) in stepping into the new realm of electronic justice.
In coming years, courts will rapidly move toward doing much of their business online, leading attorneys to ask, "What's on the horizon?"
How Far Ahead?
For lawyers, the most obvious change will be "electronic filing," shorthand for a full range of electronic services related to case filings. Imagine being able to log onto a site and not only originate a case in any state court, but submit filings and motions, service parties, retrieve data or documents, and receive judicial orders.
In addition to the pilot projects under way in some Washington counties, well over a hundred pilot e-filing projects are now in progress across the country. California, Colorado, Nebraska, and Texas are working on statewide projects, with several other states close behind them in the planning phases.
In Yakima County, the ability to submit and argue motions online is also close to reality. Yakima allows traffic mitigation arguments online. Expanding this capability as part of the electronic-filing system will not be technically difficult, but it does propose a very different method of interaction between lawyers and judges.
The advent of electronic filing has already raised the issue of what litigants and the public may see over the Internet.
The Council of State Court Administrators (COSCA) and the Council of Chief Justices (CCJ) jointly issued national guidelines on public access that can be viewed at the National Center for State Courts' website (www.ncsconline.org). They decided to issue "guidelines" instead of a "model rule" or "standard," because several areas were quite controversial and consensus proved impossible.
In fact, the proposed Washington state court rule on access to court records (GR 31) diverges from the national guidelines in several key areas. For example, the Washington rule removes any distinctions between modes of delivery (paper or electronic, courthouse, or remote access) in favor of completely consistent business rules on what is accessible or confidential. That proposed rule is open for public comment until November 5, 2003.
In addition, the state's new general court rule on electronic filing (GR 30), adopted in July, is designed to provide the minimum authorization and control necessary to begin experimenting with pilot projects.
The rule intentionally leaves unchanged as much of the current business rules as possible. It also authorizes the Administrative Office of the Courts (AOC) to create technical standards intended to enforce a consistent experience for e-filers and interoperability across courts. Since many lawyers do business across court levels and with many courts, this consistency is critical to the success of e-filing.
Washington's federal district and bankruptcy courts have been putting standardized e-filing systems into production for several years now. Their PACER (Public Access to Court Electronic Records) system supports all types of filings as long as they are submitted in PDF format. Filings are now considered "signed" when an authorized user logs on with his password and files documents into PACER. If the current pace of adoption continues, the federal courts will be doing most of their filing online in a few more years.
What Will It Mean?
Underlying almost all of what the courts are trying to do on the Internet is a simple but powerful vision: Customers should be able to carry out all their court business from one place.
So-called "one-stop shopping" is a significant departure from the current way of doing business. The courts have been moving in this direction internally, where a court "extranet" called Inside Washington Courts provides a complete array of services and information for judges and court administrators statewide.
Some changes that attorneys can expect to see in the future:
• Online data warehouses will support real-time queries for data and documents related to court cases.
• Litigants will be able to use the electronic filing system to freely access documents and information, such as hearing dates and times related to their cases.
• Citizens and groups interested in cases to which they are not a party will be able to access nonconfidential data and documents online from a public data warehouse. They may have to pay for certified copies of case documents, just as they do now (although they may be able to view them free online).
• Electronic service will be a key feature for lawyers. Although the ability to electronically file anytime and anywhere is useful and potentially saves money, lawyers often report that the really attractive feature of e-filing is electronic service. Most pilot projects have supported this feature using standard Internet e-mail, but some commercial vendors have opted for more robust solutions like hosted websites.
• Perhaps the biggest change is the use of the electronically submitted and stored document as the official record. GR 30 does not require the physical signature of the affiant, declarant, or attorney. Instead, the rule requires that the person responsible for signing the document "authorize" the document with an assigned password and PIN. This requirement will assure the court and the parties that there has been no fraud or tampering with the authenticated document. Only the person authenticating the document will know the password and PIN, which will have been issued by the AOC prior to the authentication. No paper need be retained either by the court or by the lawyer. Some superior courts already scan paper documents upon submission and destroy the paper original. If the document begins its life as a word-processing file, it merely completes the last step in a trend toward exclusively using electronic-document processing.
Self-represented litigants are not forgotten in this vision of the future. Easy-to-use court-filing software will lower the barriers for citizens. This approach is most appropriate for causes of action, such as domestic-violence protection orders and simple divorces, that involve a high proportion of pro se filers.
How's It Going So Far?
"Chelan County already has a law firm that files almost everything electronically," said County Clerk Siri A. Woods. "I don't think the change is all that different." Attorneys are accustomed to e-mail for informal communications, and they will just move to electronic mailing of official court records."
The county has contracted with E-Filing.com, a California company that provides electronic-filing services to jurisdictions and law firms. Electronic filing reduces paper handling and filing costs, and allows documents to be filed 24 hours a day (they are credited the next business day if filed after closing hours) from any location, the company says.
In Chelan County, an attorney or individual filing a document fills out an online information form—county staff members call it an "electronic envelope"—and sends it to the county. After the clerk files the document, it is moved to the imaging system, where the document is transferred into SCOMIS (Supreme Court Management Information System) without clerks needing to retype the information. Because the court still uses hard files, a print copy is made of the document.
Domestic filers can now also use a similar system to fill out all necessary forms and merge them.
"It's really slick," Woods said. "You can go back numerous times; the profile is still there and you can file your documents using the electronic profile. It saves the filer hours of typing."
She believes new court rules and new technology will change court operations in the very near future.
"I think electronic service and PINs for signatures will bring the legal group along quickly," Woods said. "The new court rule has us on the e-road."
Yakima County's online traffic-citation mitigation has been so popular that drivers have called from other jurisdictions asking to mitigate their citations online.
"We have to say, 'No, this is district court.' I have a friend in the municipal court who says we're making them look bad," said Yakima County District Court Manager Norma Hernandez. "People like it, especially college kids, because they don't have to come back (to go to court)." We got so much publicity that people from all over, even Canada, were calling us and saying this would be a timesaver for them."
The project was the brainchild of a former judge who asked the county's technology staff to construct a method for online mitigation. This is how it works:
A driver receives a traffic citation, and must initially respond in writing on the green copy of the citation. The county mails a written response and gives the driver an option of arguing for mitigation of the citation online.
The county's website now sports an online "mitigation form," which a driver can fill out with all the pertinent information, including ticket number and a mitigation statement, and then transmit online. On that driver's hearing date, the mitigation form is printed and brought to a commissioner or judge, who reviews the information and statement, and renders a decision. The driver is then notified by e-mail of the decision.
"It's great. People do like it," Hernandez said. The online option is new enough, however, that we're still getting the word out that it's available. "Yakima is also starting to scan documents so the county can someday go paperless," she said. "I've been working in courts for 32 years, and I didn't think I'd ever see this."
Electronic filing is coming soon in King County—the county is working on its pilot program—and Seattle attorney J. Mark Weiss is eager to try it.
"I'd like to see what the pilot looks like," said Weiss, who is on a steering committee working with county officials to construct the pilot.
Weiss said electronic filing will allow attorneys to "work closer to deadline before filing things"; will allow attorneys to file 24 hours a day and save on copying expenses; and will provide immediate confirmation that a filing was either received and recorded, or was rejected.
"That's a big plus," said Weiss, who has received notices from the county days, weeks, and even months later that a filing was rejected, sometimes for something as simple as a typo in a case number.
"That kind of delay can cause huge problems in court cases, and electronic filing should help eliminate much of that," he said.
Though Weiss wishes that the pilot projects would allow attorneys to submit scanned documents electronically as well, he is ready to work electronically as much as he can. "It's a huge change in how the clerk's office does business."
What You Can Do to Get Ready:
1. Visit these websites for more information on electronic filing and online access to court documents across the U.S., in Washington, and in some counties:
• The National Center for State Courts' clearinghouse site for news and reports on state and federal programs regarding online privacy and access, at www.courtaccess.org. This site includes the CCJ/COSCA model guidelines for policies governing access to court records.
• Washington state court rule on electronic filing (GR 30) and proposed rule on access to court records (GR 31), at www.courts.wa.gov/court_rules (Select "Rules of General Application" and then "GR").
• Pierce County Superior Court's enhanced electronic access site, at www.co.pierce.wa.us/cfapps/linx/main.cfm.
• King County's report on its "Electronic Court Records Program," at www.metrokc.gov/kcscc/ecr/ecrsum.html.
• Chelan County's FAQs and other information about electronic filing, at www.co.chelan.wa.us/scc/scc7.htm.
• Yakima County's online traffic-mitigation program, at www.co.yakima.wa.us/courts.
2. Read national and state standards, rules, and guidelines. These include the national functional standard and access guidelines (NCSC), the national technical standards (OASIS Legal XML), and the state rule and technical standards (WA Courts).
3. Invest in technology. To file electronically, all you really need is a PC, a word processor, a web browser, and an Internet provider. Most law firms already have this technology.
4. Talk to colleagues who are doing it. Some local law firms are already filing electronically with several federal courts in Washington. Early adopters are participating in the Chelan, Pierce, and King pilots. In addition, personnel at the participating courts are often active in national forums for sharing experiences with e-filing.
Tom Clarke is information services director for the Administrative Office of the Courts in Olympia.
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