Most within the court system accept that the electronic transfer and storage of court records is the wave of the future. With varying success, experiments in electronic filing have been appearing everywhere. Microsoft, already considered by some to be the real-world equivalent of Star Trek's monolithic Borg, has entered the competition with ECourt, a consortium formed with three other software companies to market e-commerce in the legal and justice system. According to the Net publication The Industry Standard, ECourt is targeting Los Angeles Superior Court, the nation's largest, and other urban, rural, state and federal courts.
But even given the probable eventuality of electronic filing, what of those courts that do not wish to be assimilated just yet, do not have the required resources or are small enough to escape notice? Are there ways to toe-dip into the river of technology without the risk of immediate drowning? The courts in Microsoft's home state have answered a definite "yes."
Currently, courts in the state of Washington, including the state Supreme Court, are using fax and e-mail to make the practice of law cheaper, quicker and more convenient without substantial investment of resources. "Before this technology," said Bernie Friedman, a Supreme Court law clerk who formerly practiced law from his home in a remote area, "I had no alternative [for last- minute filings] but to drive the several miles to [the courthouse]."
Fax and E-mail Filing
Filing by fax has been a reality in Washington since September 1993, when Washington Court General Rule (GR) 17 took effect. This rule sets out the requirements for filing by fax, which basically are that the fax becomes the court's original, and the actual document is to be retained by the faxing party for six months after the conclusion of the case. GR 17 allows courts to charge a "reasonable fee." Most courts that accept fax filings and charge a fee believe that they are making money, even considering the extra effort required of employees to monitor the fax and bill for the filings.
Division One of the Washington Court of Appeals, the state's interim appellate court between the Superior and Supreme courts, accepts direct filing of ex parte (one-sided) motions and a few other types of documents by Internet e-mail, and has been doing so since Jan. 1, 1997. A letter is sent to counsel upon the filing of an appeal, detailing the kinds of motions and documents acceptable for filing in this manner. All counsel must agree to participate and to certain conditions, such as agreement that inclusion on the "cc" line of the e-mail of the name of opposing counsel constitutes proof of service.
Appeals Commissioner Bill Ellis rules on the most commonly filed motion -- for extension of time. He said the process worked fine. "The motion comes to my e-mail box. My response [and] the original motion are sent to all counsel, and a printout goes into the file."
Eric Broman, with the appellate defense firm of Nielsen, Broman & Associates, said he files routine motions by e-mail. "I love it," Broman said. "It makes a lot of sense for a lot of reasons. It is extremely fast and
efficient. It does not waste paper or runner time. And I love not having to pay [runners]."
Broman said that when he files a motion requesting an extension of time, if Ellis is online, "I can have an answer back in five minutes." Previously, it would have taken two to four days, he said.
Broman said such a project works best when limited to routine motions that are less subject to manipulation and abuse. His office has been using
e-mail filing for this limited purpose for about two years, and the only
problems seem to be that not all
prosecutors have e-mail, and that motions occasionally wind up with the wrong prosecutor, a situation quickly rectified.
The Supreme Court also accepts certain filings by e-mail and fax. The protocols for electronic filing are posted on the court's home page. Facsimile filings have been accepted since GR 17 went into effect in 1993, and e-mail
filings since Sept. 4, 1997. The court does not charge for fax filings and maintains the function solely for the convenience of the users. Similar effect was expected when the court began accepting filings by e-mail.
"We anticipated that the ability to communicate with the court and file documents via e-mail would be a great convenience to our users, but that it would be an inconvenience to us," said Supreme Court Clerk C. J. Merritt. "We have learned that we were 180 degrees off in our expectations. We found electronic documents much easier to handle than faxed documents. We can move them around electronically, and when they are printed on our laser printer, the quality is much greater than fax." The court uses a translator program to read files attached to e-mail and had yet to come across a document it could not translate.
"Part of the motivation was self-interest," said Justice Phillip Talmadge, chairman of the Justice Information System Committee for the state of Washington, and a prime force behind the Supreme Court's move into the Information Age. "The cost of maintaining records is gigantic. We hope this is the tip of the iceberg, that more and more records will be transferred and stored electronically."
Talmadge said everyone benefits from the new filing methods.
"Electronic filing is more efficient for the lawyer who can work on a document in his office and transfer it at the touch of a button, and it is more time efficient for the clients."
Getting Comfortable
To date, few lawyers have taken advantage of the ability to file by e-mail. Merritt said the court encourages the use of e-mail rather than fax, "but [the attorneys] are mostly not comfortable doing that." That may change as lawyers involved in appellate work become more computer-literate, and as the passage of time makes Internet e-mail as commonplace as fax machines.
Already, in Los Angeles, the local bar estimates that 83 percent of its lawyers use the Internet, The Industry Standard reported.
Bill Gates said, "I think it's safe to say that within 10 years, the majority of all adults will be using electronic mail." (see "The Microsoft Century: Its Impact of State and Local Government," Government Technology's Technology Trends, June 1998).
Lawyers may even come to believe that e-mail is better than fax. Pam Loginsky, an appellate prosecutor
and member of the Washington Association of Prosecuting Attorneys' Appellate Committee, said it can be. The members of the appellate committee routinely trade briefs and other matters. Since appellate briefs can be very long, faxing is a tedious proposition. The chosen solution was
to transfer the documents as e-mail attachments. Since committee members use various word-processing
systems, the documents are "dumbed down" into a format that all systems can translate before sending.
"It is so much better," Loginsky said. "You can take the brief into your word-processing system, pull out the parts you need and avoid having to retype a thing."
Justice Talmadge ultimately sees electronic filing leading to case assignment and motion calendars that do not require lawyers to spend hours sitting around the courthouse, but are accomplished entirely electronically.
"The question is whether the court will address this technical challenge and handle it well," he said. "If we are successful, we can finally throw out the quill pens."
Protocols for electronic filing and other information about Washington State courts may be found on the courts' home page.
Alison Sonntag is the chief deputy county clerk in Kitsap County, Wash.
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