LIKE MANY innovations, electronic case filing (ECF) is a guest that will be more welcome in some law offices than others. Techies will embrace it immediately, other attorneys will grumble through the learning curve, while a stubborn few will avoid the task entirely by delegating the electronic interaction with the court to others.

Federal court officials are confident that the convenience of paperless filing—like the fax, cell phone, personal computer and even email— will rapidly win over most of the change-averse legal profession in New Hampshire. Not that court officials are waiting — hitting the ‘ENTER’ button on a computer will soon be the only way to file.

After June 1, all civil cases filed in the New Hampshire District of U.S. District Court will be designated for electronic case filing through the court’s new case management system, using court-provided individual logins and passwords. For the past couple of months, approximately 50 attorneys in 18 cases have been testing the system, which is already in use in 47 of the 94 district courts nationwide. On the criminal side, electronic case filing will be required in New Hampshire in all cases filed after January 1, 2005.

For the time being, pro se litigants will not be allowed to file electronically unless they file a motion and are granted permission by the court. The motion requirement is intended to assure that a pro se litigant has the systems and technology required to file electronically and to assure that they only file pleadings in their own cases.

Despite the impending deadline, response to the court’s training programs has been somewhat slow. While nearly 150 attorneys are members of the Bar’s Federal Practice Section, fewer than 50 participated in the hands-on ECF training sessions held by the court through early May. (Chief Deputy Clerk Daniel J. Lynch said about 100 people — only 30 to 40 percent of whom were attorneys —have attended the ten training sessions held so far.) Twice-weekly sessions will continue through the summer and fall, when attendance is expected to pick up once the system becomes mandatory in civil cases. (See www.nhd.uscourts.gov and hit the Electronic Case Files link to register on line for training.) The court has also developed a DVD/VHS version of the training that Lynch assures is virtually identical in nearly every respect to the live training sessions at the courthouse. "This is the exact training attorneys would receive at a live session, complete with handouts and training exercises that they can complete in their own office while accessing the same ECF database used during the live training sessions," said Lynch. "We are truly excited about this alternative training tool." (See item on page 25.)

"While training is not required in this district, it is strongly recommended," said Lynch, ECF Project Manager. Lynch and US District Court Clerk James R. Starr say they are not overly concerned by the subdued response to the training sessions so far. Given the court’s average of 600-650 new filings each year, the clerk’s office expects no more than 45 to 50 new civil cases to be filed in the first month, with the generally slower summer giving the Bar a chance to obtain the training they need before too many cases are designated for e-filing.

E-Filing Should Be No Surprise

The federal court has been proceeding on a deliberate course of raising awareness that electronic filing was coming for more than a year. "From the onset we determined that preparing the Bar for the transition to ECF was a top priority," said Starr. Early in 2003 the court began implementing a multifaceted attorney awareness and training strategy. It began by sending out short informational pieces and brochures through Bar News, various legal list serves and as inserts with court mailings. Last fall, as law firms were preparing their 2004 budgets, the court distributed information regarding the systems and equipment required to participate in ECF so firms could build that cost into their budgets. "These early promotional and informational materials were merely designed to get attorneys thinking about ECF– to put them on notice that it was coming and to place it in their consciousness," said Lynch.

The next piece of the training plan was intended to be much more concrete and practical. In January, Starr and Lynch made several ECF presentations to county bar associations and Inns of Court meetings. The court sponsored a Law Office Best Practices Seminar in March, at which practicing attorneys explored some of the procedural changes and safeguards law firms may adopt to safely and efficiently transition to electronic filing (See Electronic Filing checklist on page 25.) In April, the court began its hands-on ECF user training, which for the convenience of the Bar is now available on DVD and VHS. Finally, the court has prepared numerous resource materials to assist lawyers with ECF, including a detailed ECF User Manual, an Executive Summary of the Rules and Procedures Governing ECF, tutorials, demo databases and fillable PDF pleading forms, all available on its Web site.

"The goal was to put the tools out there so that attorneys would have the opportunity to successfully transition to ECF," said Starr. "I think we have done that. Now it is up to our Bar to properly utilize them," Starr concluded.

Lynch said the most immediate advantage to attorneys in electronic filing is electronic noticing. Law firms will no longer have to put together large mailings to multiple parties when they file a case, and they will get instant notice when new pleadings or motions are posted by others And while law office support personnel may not be spending as many hours making multiple photocopies of each filing, that duty will be partially replaced by the opening of multiple, large PDF-type attachments and then downloading and printing them for those attorneys who prefer to read paper instead of a computer screen.

Changes on the Inbound Side

ECF also dramatically changes the internal procedures and workflow of the court clerk’s office. Instead of taking charge of attorneys’ filings and entering them into their case management system manually, the court’s deputy clerks/case managers now will perform a retrospective, quality assurance function, reviewing the materials attorneys have already posted into the electronic case filing system. The task of preparing court staff for ECF has largely fallen on Cathy MacEwan, who will ultimately staff the ECF Help Desk. "We are lucky to have someone who embodies a unique combination of experience and intellect as well as outstanding organizational and writing skills," said Lynch. "This project would be DOA without Cathy."

Rules and administrative procedures have been adopted for ECF, which includes rules addressing computer outages or misfilings and provisions for exhibits that can’t be sent electronically— i.e. videotapes or oversize documents. Other procedures and tasks also had to be re-thought to ensure consistency and compatibility with the new software.

Meanwhile, the court will be operating for some time on a two-track system because civil cases filed before June 1, criminal cases filed until Jan. 1, 2005, or cases filed by pro se litigants will continue to be handled on paper. Parties may agree to convert their cases to electronic filing, or the judge may require it if the nature of a case makes it more efficient, according to Lynch.

He also points out that attorneys must carefully read the administrative rules for ECF in NH District Court because the rules are different from those of other district courts and the New Hampshire District’s Bankruptcy Court.

Lynch also cautions that the electronic filing system is a work-in-progress. Already, he said, the court has identified several changes it will make in procedures involving the labeling of exhibits after seeing filings by attorneys using the system in its "beta-test" phase.

"There’s going to be some reluctance at first for some members of the Bar, but as attorneys become more proficient at e-filing, I believe they will come to appreciate it," Lynch said. "My guess is that ultimately we will all be working more efficiently."

For more information, visit the CM/ECF page at http://www.nhd.uscourts.gov.

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