Litigation Spotlight

E-Filing: A Quick Overview

By Ed Siebel

LAWYERS TEND to think about all forms of online communication with courts under the rubric "e-filing." In fact, there are two quite separate sets of overlapping technologies at play: 1) Access to the court's records, and 2) Electronic filing of documents which become part of the court's records. At least to date, the vendors that offer one technology generally do not offer the other.

1. Access to Court Records: The first steps toward computerizing the courts have been underway for years in many jurisdictions. Dockets, calendars, registers of action -- all the courts' internal records -- are the first to be computerized. Gradually, courts have begun to scan pleadings and other documents into their systems.

The difficulty has been, and will continue to be, that each jurisdiction approaches the problem in its own way. Some courts purchase ready-made systems. Others commission specially written software. There is not yet any commonly accepted standard for accessing documents nor for the graphic format in which they will be stored.

Typically, court automation vendors specialize in, and focus on, selling and installing internal recordkeeping software to the courts. When the courts later wish to provide public access to court records by lawyers and others, this software must be made to mesh with the demands of the public. There are significant questions of security, confidentiality and compatibility which must be overcome.

E-Filing with Macintosh COURTS ALL over the country are exploring possibilities for closer integration with the legal communities they serve; every month, more courts offer lawyers access to case files and calendars. Some jurisdictions now permit pleadings to be filed over the Internet. The dominant platform for filing is Adobe's "PDF" format. Apple addicts have a bottom line question: Can I file with my Mac? The answer's a big yes. Macintosh's power as an Internet platform, together with its ease of document creation, positions it with all of the tools necessary to file pleadings online or to search courthouse records. This summer, Apple plans to unveil its latest operating system, MacOS X. The new graphic format, Quartz, is based in part on Adobe's Portable Document Format, and includes built-in PDF conversion protocols. Users can simply "save to" PDF, no matter what application is being used. (I.e., if you are writing a document in Word, you simply click on "save as PDF" to convert the document to a PDF format.) Even if you don't plan to upgrade to MacOS X, you can create PDF files easily by using applications such as Adobe's own Acrobat.

2. Electronic Filing By Lawyers: Electronic filing by lawyers of pleadings and other documents lags behind the courts' internal computerization. Successful internal systems need to be established before allowing "outsiders" to have access. The e-filing vendor's challenge starts where the database vendor's stops: how does it transmit documents electronically in a format compatible with each court's computers without compromising the court's security.

To use e-filing, generally the lawyer prepares a pleading on her word processor and converts it to a graphic format. She then goes to the Web site of an e-filing provider and fills out an online form on her Web browser, with case name, submitting party, name of the document, etc. The Web form also provides for payment arrangements with the service provider. When the information is complete, the lawyer attaches the document to the Web form.

Generally, the e-filing vendor acts as an intermediary, collecting documents from lawyers and then passing them on to the court in a format acceptable to that court's filing system. It must seamlessly bridge the gap from lawyer's computer to court database manager.

There are more than 17,500 state and 300 federal court jurisdictions being pursued by what may feel like hundreds of e-filing vendors. The large number of players in the market presents a major problem. Add the vendors' internal computer biases to the requirements stated in RFPs by myriad court systems, and one can easily appreciate the current chaos in the market. Under the circumstances, it will be difficult in the near term to wrest a standard from the mélange of combinations with which they must deal.

Answers: National organizations of courts and their administrators -- both federal and state -- together with major vendors, are working to establish nationwide standards. Standards for the 300 federal courts are being set by the Office of Information Technology of the Administrative Office of the United States Courts. Its example is being closely followed by the National Center for the State Courts. The key to the plans of all groups is the Internet.

Jim McMillan, director of the court technology laboratory at the National Center for State Courts, says that it is imperative that, ultimately, online access to the courts for filing or examination of records must be an open Internet browser-based system. His thoughts are echoed by Phil Ytterberg, national market development manager for WestFile, WestGroup's efiling service vendor.

There are two major components of electronic filing: a secure image format of the document itself and an electronic envelope in which to transmit both that image and the necessary data about the image for the court's record keeping software. Today's dominant document image format is Adobe's Portable Document Format or PDF. Although it is a proprietary format, PDF has several advantages. It can be submitted in a secure format which cannot be altered without leaving an audit trail. It can be viewed on several computer platforms: UNIX, Macintosh and Windows, principally. Unlike TIFF, GIF, JPEG or PICT graphic formats, PDF documents may be searched for a word or combination of words and their file size is comparable to word processing documents.

The envelope carries information in a format that the court's computer understands. The information identifies the type of document, the case name and number, secure identity of the filing lawyer, etc. The court's computers can then automatically tag incoming documents, as well as allow for peripheral activities such as credit card payment and statistical analysis.

According to the proposed standards, envelope data are carried in a form which is a close relative of HTML, the programming language used today on every Web site on the Internet. The language is called Extensible Markup Language, commonly referred to as XML. It is capable of bridging the communication gap between lawyer's computer and the court's database and case management system.

Current Status

E-filing vendors range in size from giant West Group with its WestFile system, down to one or two programmers with an idea and the energy to pitch it to their local court system. Among them, there are as many answers as there are imaginations. Some are, inevitably, platform specific.

However, there is a movement parallel to the courts favoring Internet-based systems among major vendors. WestFile, CourtLink, JusticeLink and others have adopted platform neutral systems which depend on standard Web browsers to communicate over the Internet between the lawyer's office and the vendor's computers. Most will encourage the use of PDF as the document format of choice, at least in the short term.

Programs today are experimental. A few federal courts and courts involved in complex litigation have had limited e-filing for several years. The Superior Court of Orange County, California is one of the first and biggest court systems of general trial jurisdiction to make electronic filing available to all of its constituents. WestFile and the Orange County Superior Court are working together to enable a platform neutral Internet solution in all of its courts on all matters except criminal by early 2001.

In the short run, there will be jurisdictions which elect to use platform specific solutions, though there seem to be surprisingly few of them. They will be in the minority and their numbers will grow smaller. Over the longer term, virtually every jurisdiction will take advantage of the Internet because it is universally accepted and available, and because the costs of maintenance are significantly lower. When fully implemented, lawyers operating from any computer platform which has Internet access through a Web browser will be able to file documents or see the court file at any courthouse in the country. That is the ideal. It is an attainable goal, but we are not there yet.

Solo practitioner Ed Siebel, of Balboa Island, Calif., is a consultant to Apple Computer Inc., and a member of the LTN Editorial Advisory Board. A version of this article appears on Apple's new Web site supporting Macintosh in the law office.