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Bar News - September 17, 2014


Federal Courts’ Experience Bodes Well for e-Court

By:


Daniel Lynch, clerk of the US District Court for the District of New Hampshire, has found that while electronic case filing and processing has made the work of lawyers more efficient, the transition did initially require additional staff time. Still, he says, web-based case filing systems are “unassailably superior” from a public access perspective.
Photo by Dan Wise
As the state judiciary rolls out a new electronic court case processing system, it will have the benefit of learning from a local counterpart with a decade’s worth of trial-and-error under its belt.

The introduction of the Case Management/Electronic Case Files and Public Access to Court Electronic Records systems in the Granite State’s federal courts marks its 10-year anniversary in 2014. While CM/ECF and PACER are largely beloved by bench, bar and public, there still are lessons to be learned from the experience.

Daniel Lynch, clerk of court for the US District Court in New Hampshire, oversaw the implementation of electronic filing in this district. Looking back, he said the human element probably deserved as much attention as e-filing rules and the other nuts and bolts he was focused on.

“I think my biggest miscalculation was the impact on staff of going from a paper to electronic docket,” he said. “There is a certain emotional impact that accompanies change, as well as a challenge to staffers’ sense of competence... some are early adopters and others are not. You have to account for that and know your people and staff.”

For some courthouse personnel who had been doing their jobs mostly the same way for 25 years, Lynch said, the transition to e-filing represented a sea change, particularly for those less comfortable with technology.

“Rather than simply putting a paper file in a bin that the judge would look at in chambers, staff had to relearn all new business processes in order to process filings and transmit work electronically to chambers. It made the process of what they did much more complex and much more technical from a computer-knowledge standpoint… For two to three years, it was definitely an adjustment for staff.”

Such challenges have eased with time, as courthouse staff have become more proficient with the system and its accompanying policies and procedures – or, in some instances, have retired. Nonetheless, Lynch cautioned against expecting too many increases in staff efficiency to result from a transition to electronic filing. While it makes many things, such as archiving, quicker and easier, Lynch said it also creates some new work. Addressing lawyers’ filing errors is more difficult than it was in a paper system. Additionally, some complaints, sealed documents and many pro se filings still arrive in paper format – exceptions to otherwise mandatory electronic filing in federal court – requiring clerk’s office employees to scan, upload and docket those pleadings to the electronic system themselves.

“At least in the federal district courts, electronic filing isn’t the panacea for staff that people first imagined it would be from an efficiency perspective,” Lynch said. “While there is no doubt it is more efficient for e-filing-proficient attorneys, for court staff it has been roughly the same in our court.”

But Lynch is quick to note that his counterparts in US Bankruptcy Court would probably disagree with him. The similarity of many filings and reliance on forms there probably increases the utility of an electronic system.

Over the past 10 years, there have been minor updates and tweaks to ECF/PACER. Lynch says a new version is being rolled out in the circuit courts in the next year, with the enhancements coming to the district courts after that. While not dramatically different, Lynch hopes the new system will be more intuitive for users and will include new features that attorneys will find helpful.

New Hampshire will continue to presumptively exempt pro se litigants from e-filing – especially given that most federal pro se filings come from jails and prisons that do not have Internet access.

The state courts’ strategy to include the pro se litigants in the electronic system from the start is a major departure from the feds’ approach. Filing errors and other challenges posed by pro se parties will, to a certain extent, be addressed by the state courts’ unique system, which has two filing portals, one for lawyers and one for pro se litigants. The latter will be user-friendly and interview-based. Similar to popular tax-return preparation software tools, the system will prevent errors by plugging users’ answers into an interactive form that incorporates local court rules, lists the correct dates and flags errors, such as filing suit in small claims court for an amount above the small claims limit.

The New Hampshire judiciary is following the federal courts’ lead by phasing in its e-Court initiative, an approach that Lynch said proved successful. In federal court, electronic case filing began with civil cases filed after June 1, 2004, and with criminal cases initiated after Jan. 1, 2005. By Oct. 1, 2005, all remaining paper cases were converted to electronic cases.

The state system has begun with an electronic filing pilot project for small claims cases in Concord and Plymouth. The specifics of most other aspects of the e-Court initiative, including public access to electronic court records, are still being ironed out.

Portsmouth lawyer Debra Weiss Ford of Jackson Lewis is looking forward to full implementation of the system and hopeful it will mimic CM/ECF.

“I’m hoping it’s just like federal court, which I find much easier to use,” she said.

While electronic filing created some staff difficulties initially, Lynch said Ford’s sentiment is the overwhelming consensus for other users, from attorneys who can quickly check for new lawsuits against their clients or receive alerts of new filings in their cases, to members of the public who don’t have to worry about a case file being unavailable because it’s with a judge or archived.

“From a public access perspective, it is unassailably superior to a paper system for all kinds of reasons,” he said.

Being able to access court records remotely and outside business hours is also a huge convenience, Lynch added.

“It does give judges a great deal more flexibility to view and rule on pleadings when they’re at home or on vacation,” he said. “As opposed to a paper world, where pleadings would typically await the judge’s return to the courthouse before being reviewed.”

The advent of e-filing has an impact on how often lawyers and their staff stop in to the Rudman building. E-filing obviates the need for many trips to the courthouse, which could in time negate the benefit of lawyers paying a premium for office space near the courthouse. Electronic filing also makes it easier to practice law across boundaries and jurisdictions, which could accelerate an already noticeable trend of more out-of-state attorneys practicing in New Hampshire.

“I would say, anecdotally, it seems to me that we have more pro hac vice admissions appearing in our cases,” Lynch said.

Ford believes such trends are an inevitable sign of the times.

“That has changed, but I guess, for me, the whole world has changed in that way,” she said. “I have clients now that I’ve never met.”

The world also has gotten a lot more familiar with computers in 10 years, a fact both Lynch and Ford believe bodes well for the state’s e-Court rollout.

“Lots of things were different 10 years ago,” Ford said. “There were lots of lawyers who didn’t have computers, who weren’t computer-literate. There were big challenges in making sure people were proficient, and my memory is it was a bit of a headache. I would not expect that kind of a problem with the transition in state court. One, technology is better. Two, people are more computer-literate. Three, we’ve gotten used to doing it in federal court. You would think the problems would be minimal.”

In other words, Lynch said, “To go back to paper would be the human-shock factor now.”

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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