The Connected Lawyer

The Illinois Supreme Court released a press release today announcing a plan for a unified efiling system throughout the state.

Chief Justice Robert R. Thomas and the Illinois Supreme Court announced Friday a
wide-ranging plan to build a technological infrastructure that would link electronically all the
courts in the state’s 23 judicial circuits and 102 counties.

Once completed, the plan would provide, among several features, a uniform system for
the electronic filing of cases and case documents in all of the state’s trial courts. It also would
bring together, under a uniform structure, other electronic business initiatives which the Court
has allowed previously.

The press release goes on to explain:

At the heart of the plan is the development of an Illinois Judicial Branch portal using web-based technologies. Just as a portal like Yahoo or Google provides access to a myriad of information, the Illinois judicial portal would provide a single point for access to a broad scope of case information collected from cases filed in all 102 Illinois counties. The initiative would not relieve judicial circuits of their record-keeping responsibility, but the portal would provide a central point of access to trial court information and a single system to distribute trial court data to federal and state entities.

“A critical component to the success of this project is the establishment of statewide technology standards that will allow the integration of the 23 judicial circuits’ information systems into a common link,” said Ms. Cobbs, the AOIC director. “The use of a central judicial branch portal, and the establishment of standards will ensure that Illinois’ use of technology to assist in the work of the courts is secure, uniform, and cohesive, rather than a patchwork of independent services.”

The AOIC has been working with several national vendors to identify technologies that would implement a database platform, a statewide network and associated standards to support the e-business initiative. Director Cobbs and her staff also will be working with the Chief Judges of the 23 circuits, as well as with county officials to plan and implement the initiative as seamlessly as possible.

This press release says all of the right things, however, I am troubled by the comment that:

Unlike the federal court system, in the Illinois trial courts, there is no uniform case management system and thus, implementing an e-filing system like the one that is utilized in the federal courts is not possible.

So, can they implement one unified system or not?

With respect to timing, the Court announced:

A time frame for full implementation of uniform statewide e-filing and other e-business is uncertain, but it is expected to be phased in over a period of three to five years. The cost of development will be funded through judicial branch resources, and other sources of funding will have to be identified as needed.

You can download a copy of the press release here.

This seems to be a step in the right direction. However, it appears a little sparse on the details. I am curious to see what their actual plans are. I know that I have been clamoring for efiling in Illinois. As much as I want to see it arrive, I also want to see it arrive in a form that benefits the practitioner.

For now, I will accept this announcement for the good news it appears to be.

The Legal Profession Blog has an interesting post about Stephen Harris, a Kansas attorney who was disciplined because he refused to file bankruptcy pleadings electronically. The opinion from the Supreme Court of Kansas explains:

In January 2005, Respondent attempted to file a bankruptcy case, in behalf of another client, using paper pleadings rather than electronic pleadings. The bankruptcy court sent Respondent an order and in the order advised Respondent that petitions and other pleadings must be filed electronically. The court ordered Respondent to attend the required training, pass the examination, and obtain a login name and password within 30 days. Respondent failed to obtain a login name and password within 30 days.

On March 31, 2005, Respondent attempted to file a bankruptcy case in behalf of another client. On April 11, 2005, a bankruptcy judge advised Respondent in writing that he was not permitted to file a bankruptcy case using paper pleadings and that all pleadings must be filed electronically.

In July 2005, C.G. retained Respondent to prepare and file a bankruptcy case in his behalf prior to the change in bankruptcy laws scheduled for October 2005. Respondent informed C.G. that it would take 6 to 8 weeks to file the bankruptcy. C.G. paid Respondent an advanced fee of $800. Despite the fact that Respondent knew that he did not have a login name and password to enable him to file bankruptcy cases, Respondent agreed to represent C.G.

On September 12, 2005, Respondent spoke with C.G. by telephone. At that time, C.G. informed Respondent that he needed the bankruptcy case to be filed immediately because his two vehicles had been repossessed. During the conversation, C.G. asked Respondent whether Respondent had a login name and password to enable him to file bankruptcy pleadings. Respondent informed C.G. that he had a login name and password. Later, in the same telephone conversation, Respondent informed C.G. that he did not have a login name and password but that he would get one by the end of the week. Still later in the telephone conversation, Respondent assured C.G. that he would obtain a login name and password with sufficient time to file the bankruptcy before the laws changed.

I really just don’t understand this. If you do not like electronic filing, that is your prerogative. However, if you are going to practice in a court that requires electronic filing, you must comply with those rules. Trying to submit paper documents with a court that requires electronic filing is no different from trying to file your pleadings in the form of a scroll with a court that accepts only 8.5 x 11 paper.

Following court rules is not a difficult concept. It can be a pain sometimes, but the rules are not optional. The attorney here compounded his error in a couple of ways. First, not only did not not follow the court rules requiring him to file his documents electronically, but he also failed to follow a specific order directed at him to obtain his efiling access within 30 days. Once again, there are ways to disagree or challenge court orders. Simply ignoring them is not an acceptable alternative.

The second thing the attorney did to compound his error was that he continued to accept new clients when he knew that he could not file pleadings on their behalf.

If you are going to practice before a particular court, follow the rules. If you want to follow those rules, find a different court to practice before or seek to change the rules.

I know that I have been bagging on the Cook County Clerk’s office lately. See this, for example. It’s not that I want to pick on them. However, the reality is that they are the ones that I have problems with.

For example, after I was unable to find a complaint or answer in the file that I looked at yesterday, I had another court appearance, this time on a motion in the municipal division. For the record, I hate appearing in muni in Cook County. This division handles civil cases in which the amount in controversy is less than $30,000. There are lots of these cases filed in Cook County. Consequently, these are high volume courtrooms.

To understand the story I am about to relate, you must understand a little how Cook County operates their muni call. In an ideal world, this is how the call is supposed to work.

1. The Plaintiff files a lawsuit and sets a return date.
2. The Sheriff obtains service on the Defendant.
3. The Defendant files an appearance on or before the return date.
4. If the Defendant files an appearance, the matter is set for status at a date in the future.
5. If the Defendant files an appearance with a jury demand, the case is set for status in the jury call courtroom.
6. If the Defendant does not file an appearance, an order of default is entered and the case is set for the entry of a default judgment in the future.

Leaving the fantasy world and returning to reality, this is what actually happened in my case when I filed it.

1. I file a complaint and set a return date.
2. The Defendant timely files an appearance and a jury demand.
3. The case is transferred to the jury call courtroom for a day in the future.
4. AND an order of default is entered against the Defendant because, despite the fact that the Defendant filed a timely appearance, that information was not entered in to whatever system sends out the default notices. The case is thus set for a prove up date in the future in the original courtroom.
5. We appear in the jury call courtroom, however, the case is not on that call any more because the order of default had been entered.
6. Because no order was entered in the jury call courtroom, our case is dismissed for want of prosecution.
7. Thereafter, the judge in the original courtroom straightens everything out, vacates the default, vacates the DWP, and transfers the matter to the jury call courtroom.

This case has quite a history so far. Once in the jury call courtroom, the case is automatically set for arbitration. That date happened to conflict with my schedule. Thus I was appearing to continue the arbitration date. When I stepped up, the clerk informed the judge that a DWP had been entered in my case. The judge asked me what I knew about that. Rather than explaining everything above, I just told the judge that the prior judge had vacated the DWP and that had all been taken care of months ago.

The clerk swore that it had never been vacated. I guess that the order I have vacating the DWP means nothing because some other clerk did not properly code or key in the previous order. Anyway, as I was stepping away from the bench, the judge suggested to me that I “clear up the matter of the DWP with the Clerk’s Office.”

My only question. Just how am I supposed to do that? The whole problem with the DWP in this case started because the Clerk’s Office screwed everything up. If an order from a judge vacating the DWP is not sufficient for the Clerk’s records, I am not quite sure what I am supposed to do to convince the clerk that the DWP was vacated.

I know I complained a couple of days again about the difficulty in getting a file from the courthouse in Illinois. It turns out, however, that Peter Olson was right: at least I got the file I wanted.

Today I had the “pleasure” of retrieving a file from the clerk’s office in Cook County. When I got the file, I flipped through it looking for a couple of key documents: the Complaint and the Answer, both of which were filed in 2005.

I found lots of orders, and other miscellaneous documents, including the summons. Strangely, however, there was no complaint or answer? I could be wrong here, but I had always believed that the Complaint was the document that started the file making process in the clerk’s office. It appears that I am wrong.

On the bright side, I did find two documents from unrelated files that were included in my file. Maybe I should have checked those files for for the Complaint.

I have no doubt that efiling will not solve all of the problems in the court system. However, it would certainly go a long way toward doing so.

I am still fuming from an experience that I had in a local court clerk’s office yesterday. I had a meeting outside of the office. While I was out, one of my partners contacted me and asked me if I was near the courthouse. It seemed that one of his divorce clients had another case pending against her. He wanted copies of the important documents in the file, as it appeared that she would be hiring us to represent her in that matter as well.

Given that I was near the courthouse, I figured that it would be no problem for me to stop by and check things out. Despite the fact that I have been wrong before (cue snarky comment from wife), I have rarely been more wrong than I was in this situation.

First, it’s ridiculous that I have to go to the courthouse to find out basic useful information about a case. Nevertheless, it is the only option. So off to the courthouse I went. Unfortunately, it turns out that the one person who can order up files from the file room was otherwise occupied. Thus, I had to wait approximately 20 minutes before anyone bothered to order my file. After that, I had another 20 minute wait before I finally got my file. After getting the file, I had to review it, identify the documents that I wanted copies of, and then have them copied.

Finally, after almost an hour in the courthouse, I finally had paper copies of my documents. The kicker of course, is that when I got my copies, the clerk did not copy the physical document from the court file. Instead, she simply printed it from the electronic version on the computer system.

I then took my paper copies (which had been printed from electronic versions, which had been scanned from paper documents) back to my office and gave them to my assistant, who promptly scanned them back into electronic documents so that I could actually work with them.

People often complain about the amount of time that litigation takes as well as the high cost of legal services. Here is one reason for that time and cost: Institutionalized inefficiencies. The reality is that I performed this task in the most efficient manner possible, yet it was horribly inefficient.

Further, the process is no better for the clerk’s office than it is for me. With a proper efiling and electronic access to documents, the clerk would no longer need to take the paper documents and scan them in. Also, the clerk would not have to allocate employee time to scanning documents, making documents available to the public, or making copies of the documents. Changing the system benefits both the attorneys and the clerk’s office. Yet, because of the institutionalized inefficiencies that were currently face in Illinois, I see little hope for meaningful change in the near future.

As I have noted before, people from outside Illinois are dumbfounded at the fact that we have no electronic access to court files.

The reality is that I should have been able to access the court documents from my desk and obtain an electronic copy of the ones that I needed. At least in this county, the hard work as been done. All of the documents exist electronically. The fact that I am prohibited from accessing them or obtaining copies of them unless I drive to the courthouse is simply asinine.

I know that I have been blogging about this issue a fair amount lately. However, I think that it is the one area that can most dramatically improve our practice as well as our efficiency.

Last night I had dinner with, among others, an attorney from another state. At one point in the evening, the topic of conversation turned to efiling and electronic access. When I explained the electronic access availability that we have in Illinois (which, for all intents and purposes, is nonexistant), he was dumbfounded. When I explained to him that, to get a copy of a document from a court file, I have to physically travel to the courthouse, I bet I could have knocked him over with a feather.

It is disappointing to see that Illinois is so far behind the curve on this issue. It is refreshing to see, however, that a disinterested third party shares my opinions on the abysmal state of efiling and electronic access here in the Land of Lincoln.

Bonnie Scucha points us toward an article from the federal courts describing the effects of PACER. PACER is the electronic access system that allows users to access and retrieve electronic copies of court files. The article reports that:

Hundreds of millions of pages of court documents retrieved online each year by customers who numbers are approaching 750,000. Less attention, however, has focused on PACER’s impact on court staffs.

“It’s definitely changed the way our office does business, and I think it’s been a change for the better,” said Monica Menier, clerk of the bankruptcy court in the Middle District of Louisiana.

“Back in the paper world, we constantly had law firm runners who came to the clerk’s office to make copies of case files. They’d have to drive to the courthouse, find a parking place, feed the meter, and pay 50 cents per copy. Helping them consumed a lot of staff time,” she said. “Those days are gone.”

David Weaver, clerk of court and court administrator in the Eastern District of Michigan, offers a similar assessment. “We once had 12 case-searching terminals in a public area of our office, but eight of those terminals are gone. Very little walk-up business remains. We don’t have file clerks anymore.”

I just wish that our courts in Illinois would realize the benefits of allowing us to have remote electronic access to court files. I consider it a terrible shame that it is much easier for me to retrieve a document from a federal court file in Seattle, Texas, or New Jersey, than it is for me to retrieve a document from DuPage County, where I practice regularly.

One of the areas that Illinois is seriously lagging behind on in eFiling of documents and electronic access to court files. I am constantly frustrated when I look at the baby steps that are being taken in Illinois as compared to what has already been completed in other states.

For example, New York has efiling and electronic access to court records. To check out New York’s system, follow the simple instructions provided by Above the Law.

Our backwardness has now reached national attention. In a Law.com article published on February 26, Lynne Marek notes that Illinois courts (along with several others) are lagging behind when it comes to electronic access.

Cook County is one of many U.S. counties, including San Diego in California and Kings in New York, that hasn’t kept pace with 21st century technological advances that have enabled electronic systems to come to some state courts, such as Maricopa County Superior Court in Arizona and the district courts of Harris County in Texas.

Those highly wired courts — along with the nearly 10-year-old federal electronic system called Pacer — have set a higher standard for electronic access and are drawing other state courts, such as those in Illinois, Florida and California, toward technological benefits.

The article accurately notes the reasons that attorneys are looking for electronic access:

 For lawyers, the key is electronic access to files over the Internet and the ability to file electronically, allowing them to spend less time and money traveling to the courthouse. It also increases predictability in filing a document in court, attorneys said.

Finally, the electronic dockets help ensure that judges aren’t searching for documents missing from case files during hearings, they added.

In short, eFiling and electronic access is all about using technology to practice law more effectively. Unfortunately, there appears to be an institutional bias against this here in Illinois:

Cook and other counties in Illinois are barred by the state’s Supreme Court from making documents available on the Internet mainly because of privacy concerns. Across the country, such concerns relate to everything from identity theft to children viewing parents’ divorce filings. For many states though, including Illinois, Florida and Texas, guidance from officials is still in flux.

eFiling and electronic access would also help eliminate some of the problems that currently exists with respect to the proper filing of documents in court files. As noted in the article:

When Chicago litigator Victor Henderson sends an assistant to the Cook County Courthouse in Chicago to retrieve a filing, he hopes for a bit of luck.

“We send them over and cross our fingers and hope it will come back,” said Henderson, an attorney in Holland & Knight’s Chicago office. “The confidence level is only 80 or 90 percent that, if you ask for something, it’s going to be there. With a lawsuit, it has to be 100 percent.”

Yesterday, I saw first hand an example of this. I witnessed a contested hearing in front a judge in law division, in a case that had recently been transfered from chancery. In the chancery division, the judge had decided part of the case and that portion was on appeal. The judge questioned the attorneys about where in the appellate process that appeal was. The attorneys explained that the record on appeal still had not yet been filed because the clerk’s office could not find all of the documents in the file. Instead, the clerk’s office was putting together the record on appeal using documents from the court file as well as documents from the attorneys’ files.

I am not saying that eFiling will solve all problems. However, it will certainly make the practice of law more efficient. This efficiency should benefit all parties in the legal system, the parties, the attorneys, the judges, and the clerks.