The Federal Courts Are OK With RECAP

As most of you know, recently a Firefox plugin was released called RECAP. The idea behind RECAP is that is captures documents retrieved from PACER and uploads them to a free database. In response, at least some federal courts sent out a sky is falling, beware of evil hackers email in which they stated, in part:

Please be aware that RECAP is “open-source” software, which means it can be freely obtained by anyone with Internet access and could possibly be modified for benign or malicious purposes.  This raises the possibility that the software could be used for facilitating unauthorized access to restricted or sealed documents. Accordingly, CM/ECF filers are reminded to be diligent about their computer security and document redaction practices to ensure that documents and sensitive information are not inadvertently shared or compromised.

I have seen some pretty significant criticism leveled at the courts for the emails that were sent out. For the most part, I have agreed with the criticism I have seen.

I was happy to see today, however, that the Administrative Office of the United States courts is taking a more reasoned approach to RECAP. As reported by the Consumer Law & Policy Blog, the Administrative Office has “no problem with counsel using RECAP.” This is good, and reasonable, news and I am happy to hear it.

To find out more about RECAP, go here.

The Coolest Record on Appeal Ever

I spent the first two and one half years of my professional life working as a staff attorney for our state appellate court. Thereafter, I had the opportunity to spend a little more than a year clerking for a justice on the Illinois Supreme Court. The upshot of this is that I love working on appeals. Unfortunately, because of the high percentage of cases that get settled, I rarely get to work on an appeal.

Recently, however, we had a case pending in federal court in the Central District of Illinois in which the district court granted a motion to dismiss. As a result, we have an appeal pending before the Seventh Circuit Court of Appeals. One of the questions we had was how we were going to get a copy of the record on appeal from the District Court. For those of you unfamiliar with Illinois geography, the Central District of Illinois (Springfield Division) is not exactly close to our office.

We contacted the clerk, who told us what paperwork we needed to file to have them send the record on appeal. I was relieved. We didn’t have to worry about trying to get the record from Springfield to our office. The clerk would just send it to us. I figured this was great. I would file the required paperwork and in a few days I would get the record on appeal in the mail.

Things did not happen as I expected. However, unlike most times, this was a good thing. I filed the repaired paperwork on a Friday. The following Monday, a copy of the record on appeal showed up in my inbox. That’s right, the clerk had assembled the record on appeal from the filed PDFs, electronically stamped the documents, and then emailed me the record.

This was absolutely awesome and I was thrilled to see it. Not only did it mean that I had the record almost instantaneously, it also means that I didn’t have to worry about scanning the record in for myself, plus, I don’t have to worry about returning it. It’s not as though I have the only copy that exists. I have an electronic copy. I hope that this is a trend that we see more of in the near future.

I love working on appeals anyway, but working on this appeal was a real pleasure for me.

Online Access to Case Information

I know that I frequently complain about the glacial pace at which Illinois courts are finally adopting the electronic filing concept. At least in this arena, however, there is some progress. For example, DuPage County has implemented a very efficient efiling system.

However, the flip side to any good efiling system is the ability to access electronic records without visiting a courthouse to do so. Yesterday I wasted almost two hours of my time becuase I needed to review a court file. The actual review took only about five minutes. However the travel to and back from the courthouse was nothing but wasted time.

I should have been able to access that file over the internet while sitting at my desk. After all, these are public documents that we are talking about. I don’t understand the institutional desire to deliberately make these documents hard to access.

In a Chicago Tribune article from February 2007, the Illinois Supreme Court reiterated its opposition to making public records publicly available:

But the Illinois Supreme Court, which sets the policy for all Illinois courts, said making records available on the Internet might make them too public, leaving litigants vulnerable to invasions of privacy. Officials cite everything from divorce records to civil complaints as problematic.

State court documents often contain “sensitive and personal information” and allegations that “are not necessarily true,” said Joseph Tybor, spokesman for the Illinois Supreme Court.

“The court’s concern is over a person or persons who would just sit [at a computer] for hours on end and comb court files for information,” Tybor said. “If someone has to come to the courthouse to view the file, it makes it more likely that person has a bona-fide interest in the information.”

Critics say that’s an odd stance toward records that are, by law, public and available for anyone to view at the courthouse.

I agree with the critics. Court records are public documents, therefore they should be publicly available. It is simply ridiculous that I can access and review court records on cases courts all over the country without leaving my desk, but if I want to view a court file in a case in DuPage County, I have to drive there.

If a file contains sensative information, then that information can be filed under seal. Otherwise, the file should be publicly available. Illinois is not an insignificant state. We should be on the forefront of using technology to make our courts accessible to everyone. We should not be bringing up the rear with obstructionist polcies.

E-Filing and 20th Century Lawyers

It is no secrete that I love the CM/ECF (e-filing) system that the federal courts use. Not only is it very convenient to be able to file your documents from your desk, but it is also great that you don’t have to serve those documents on the other parties who have filed an appearance in the case.

When a document is filed with the ECF system, the system automatically sends and email to everyone who has filed a appearance informing them that a document has been filed and providing a link to download the document. This means that everyone has a copy of the document just minutes after it has been filed. In addition to the time savings, this process also saves staff time, postage, and mailing supplies.

Notwithstanding this, there are still some lawyers who either don’t understand this or who can’t abide by the fact that a computer system is performing their service for them. So, it is not unusual for me to see that something has been filed in a federal case (either district court or bankruptcy) and then a few hours later I receive a copy fax. Although not a frequent, but still way more often than it should be, I will not only receive a copy by fax, but I will get a copy in the mail a day or two later.

I know that sometimes people have diffiuclty adopting to new technologies, but I don’t understand the desire of these attorneys to waste the additional time, money, and effort duplicating the work performed by the ECF system.

Efiling and Cook County

Yesterday i attended a presentation by the Cook County Circuit Clerk about the efiling system they are planning to roll out in March 2009. The vendor Cook County selected is, which is also the vendor for the statewide efiling project in Alabama. The fact that this vendor has a track record doing this is encouraging. On the other hand, Cook County has a few more filings than they have in Alabama. According to the 2007 Annual Report on Illinois Courts, in 2007, ther were a total of 1,955,480 cases filed. According to the representative yesterday, last year there were approximately 250,000 cases filed in Alabama. This number seems low to me for Alabama. I would note that the 2007 Annual Report on Illinois Courts shows that in 2007 there were 318.126 cases filed in DuPage County. Nevertheless there is no question but that they were dealing with fewer cases in Alabama than they will be in Cook County.

Based on the demo presented yesterday, it appears that attorneys will be able to file cases, have summons issued, and review all electronic documents on their case from within the system. I am interested to see what further information is released as this project is rolled out over the next couple of months.

One thing I found interesting at the presentation was that there were several questions that were directly related to AOIC rules, including questions about public access to court documents over the internet as well as questions about why the clerk had to print copies of electronically filed documents. I thought it was clear from several people in the room that there is a huge desire for the ability to access court documents remotely. I am glad I am not the only one who wants this.

Update: I forgot to mention that the efiling project is being rolled out first only to Law Division cases on the Commercial Calendar. Clerk Brown said yesterday that she plan to roll it out to other divisions once the project starts and she gets permission from the AOIC.

So Close, But Not Quite There Yet

A few weeks ago I received an email from one of the bankruptcy courts to which I am admitted. The email announced that they will be doing an “ECF Tip of the Month.” The idea is to address problems commonly encountered with the ECF system.

For example, the first tip is for filing an amended creditor matrix. From viewing the materials in the tip, it appears that people are filing the amended matrix as an original matrix.

The tip contains good information and includes a tutorial in Adobe Captivate that shows how to properly upload the creditor matrix. I think this is a good idea and eventualy it will provide a good source of archived tips.

I have two issues with how they have implimented it, however. First, there is no RSS feed. This is the perfect type of material to have an RSS feed with. Why make it difficult for people to find the tips when they are released. Second, there is no separate landing page for the Tip of the Month. Instead there is a blinking title over the link to the tip of the month, that takes you to the particular demo. Once again, if this is something you want people to access regularly, it should have its own page on the website.

A Step in the Right Direction

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.

Some People I Just Don’t Get

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.

Even More Filing Problems

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.