In May 2012, the Administrative Office of the U.S. Courts announced that the U.S. Court of Appeals for the Federal Circuit had begun to accept electronic filings through the federal judiciary’s document management system, known as CM/ECF (Case Management/Electronic Case Files). This seemingly innocuous occurrence was newsworthy not because of the Federal Circuit's stature in the judicial branch, but rather because of the Federal Circuit’s distinct honor of being the last federal jurisdiction to join this program.

Though heralded by the Administrative Office, the Federal Circuit arrived onto the CM/ECF scene nearly 11 years after the Administrative Office deployed the system for the U.S. bankruptcy courts and 7 years after the system’s implementation began for the U.S. appellate courts. But the Federal Circuit’s delayed arrival is certainly excusable, given the Administrative Office’s logistical and managerial balancing act of bringing online 94 district courts, a commensurate number of bankruptcy courts, and 13 courts of appeals.

Because of that effort, any federal practitioner or pro se litigant can now use a standard Internet connection to submit documents in portable document format (PDF) for review and consideration in any federal venue across the United States. What is more, the Administrative Office has even announced that development of the next generation of CM/ECF is already under way.

But while the U.S. courts appear to have surpassed the issue of implementation and progressed toward innovation, the same cannot be said for the overwhelming majority of the states’ judicial systems.

State Courts Lag Behind

In 2009, a survey conducted by the National Center for State Courts (NCSC) found that more than 60 percent of the states were either using some form of e-filing or planned to offer a form of e-filing within the next year. Yet, a closer look at that statistic showed that the state programs were limited to one or two pilot programs or more established programs in the court systems of only the most populated communities. That same survey also revealed that some states would not be prepared to even offer any e-filing programs for years.

According to David Schanker, the late clerk of the Wisconsin Supreme Court and Court of Appeals who was instrumental in establishing that state’s e-filing system, the key reasons for the relatively smooth transition to e-filing in the federal system were the following:

  • the existence of a centralized administrative body that oversaw the project from its beginning;
  • a willingness to replicate successful e-commerce applications; and
  • the prudence to keep the system as simple and as flexible as possible

In contrast, the varying roles and responsibilities of the state and local systems often preclude, or at least deter, a cohesive approach to e-filing, and many states simply have not invested the time to research and find a solution to the issue.

The Need for E-Filing

When viewed in the context of the twenty-first-century judicial workload, the need for increased efficiency becomes apparent. According to a 2010 survey conducted by the Court Statistics Project, the state trial courts received 103.5 million new cases in 2010. Although this number incorporates relatively minor matters, such as traffic violations, it nonetheless represents an increase of nearly 8 percent from 2001 levels. The same survey also found that the efficiency rate of most state courts (as measured by the division of the number of cases closed by the number of incoming cases) is suffering—particularly in civil and domestic relations cases.

At least one state, Connecticut, appears to have figured out how to handle its civil caseload economically. The 2010 Court Statistics Project survey noted that the general jurisdiction courts of Connecticut had, far and away, the most efficient clearance rate of any state judicial system in civil litigation matters, closing out nearly 20 percent more cases than were filed in 2010. Although there appears to be no direct empirical evidence of a causal link between Connecticut’s remarkable clearance rate and e-filing, it is noteworthy that in 2009, 87 percent of all simple civil litigation cases (e.g., small claims) and 50 percent of all complex civil litigation cases (e.g., mass torts) filed in Connecticut were electronically filed.

Roadblocks to E-Filing

So what exactly are the impediments for the states in implementing e-filing systems? The 2009 NCSC survey revealed that insufficient funding, according to the states, is the primary impediment to establishing an e-filing system. The next highest impediment, according to the states, is insufficient staff.

Both of these arguments, however, demonstrate a lack of initiative to really work through the issue. The State of Delaware, for example, began e-filing for its appellate courts in 2006 through LexisNexis’s “File & Serve” system. This system, managed by LexisNexis and integrated with Delaware’s existing case management system, provides instant access to filed documents and automatic docketing. The transition to this system proved so undemanding that the Honorable James T. Vaughn Jr., the president judge of the Delaware Superior Court, expressed enthusiasm in a 2008 article for a complete integration of the e-filing system for all Delaware civil cases.

More important, Delaware’s e-filing system is wholly funded through reasonable fees charged directly to filers. There are no charges to the court.

Of course, LexisNexis’s “File & Serve” system is not the only full-service e-filing solution on the market. Many states have opted to use other vendors for the purpose, taking into account the state’s requirements and limitations. Indeed, those states that have not yet fully embraced e-filing have multiple options at their disposal.

Getting States Onboard

What is arguably the most critical factor for why many states have lagged behind in e-filing is the lack of initiative by one individual within the state judiciary who has the enthusiasm and relative technological savvy to really push the issue forward. Schanker was right: “If a court system lacks the right person in the right position at the right time, someone who is willing to promote an e-filing project and see it through, e-filing cannot be accomplished.”

Unless you're reading this as a judicial administrator, in which case the answer should seem perfectly evident, the real question is: How can state practitioners move state judicial administrators toward modernization?

State bar associations, as a collective voice for lawyers within a state can and should play a critical role in this effort. Individual practitioners can also be actively engaged in letting judicial administrators know that while everyday lawyers and the profession on the whole are becoming more technologically competent, the courts themselves are quickly falling behind. And when state courts determine to move forward with an e-filing system, the bar should support the courts every step of the way. Only through this collective effort will the states hope to reach the same level of consistency enjoyed by the federal courts and federal practitioners.

First published by the American Bar Association