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Vol. 35, Number 11—November 2003
IN DEPTH
Federal Courts Turn A New Page
Case Management/Electronic Case Files Systems Bring Greater Efficiency/Access
 Late
on a Sunday, one of the largest bankruptcy cases in history arrives
at a U.S. bankruptcy court. With a mere push of a computer button,
attorneys deliver the case, without couriers and after hours. The
filing attorney automatically receives a notice verifying the filing
of the document with the court. Also automatically, the new case is
opened in the court’s official records and the bankruptcy petition
is available instantly through PACER, the electronic public access
service that allows users to obtain case and docket information from
federal courts.
The following morning, the court reviews its report of the filing
and prepares to oversee the activities and management of this “mega-case”
and the numerous documents that surely would be drafted and filed
in the months ahead. No cardboard file boxes, paper cuts, or storage
problems need to be addressed. The presiding judge can read a complete
copy of the case file and every future document from chambers, or
with the appropriate safeguards, from his or her home computer. In
fact, anyone anywhere in the world who has computer access, simple
off-the shelf software, and an Internet browser can access documents
immediately after they’re filed. There are no added fees for filing
electronically, and the cost to access files is nominal—with
the first copy free for parties in a case.
A computer whiz’s runaway dream? A Y3K courtroom? Actually, it is
a glimpse at the work that is going on today in close to 100 federal
courts. There are more than 10 million federal court cases in the
Case Management/Electronic Case Files systems, known as CM/ECF. The
systems are in place in 31 district courts, 62 bankruptcy courts,
the Court of International Trade, and the Court of Federal Claims.
By the end of 2005, nearly all federal courts will have CM/ECF integrated
into their daily workflow.
It All Began with Rooms Of Paper
Back in 1995, the U.S. District Court for the Northern District of
Ohio was drowning in a sea of paper. A huge maritime asbestos caseload—5,000
cases per year- with 100 different defendants per case—was generating
10,000 pleadings a week. Clerk of Court Geri Smith remembers that
lawyers would bring in six boxes of filings at a time, and the court
was filling rooms with documents. The workload also was becoming unmanageable.
Court staff were looking at an eight-month backlog of over 250,000
pleadings. Something needed to be done. That’s when Smith called the
Office of Automation and Technology at the Administrative Office.
CM/ECF
Impact on Attorney Practice |
A recent survey
shows that the majority of CM/ECF users expected electronic
documents to save labor in the long-term, especially in
preparing, filing, retrieving, and delivering documents,
and in accessing information.
A total of 135 attorneys using CM/ECF in 13 judicial districts
were polled by phone. In addition, focus groups of eight
to 15 attorneys and support staff were held in four court
locations where CM/ECF has been in use.
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Overall
Long-term Impact of Electronic Public Access |
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A team from the AO, headed by Gary Bockweg, now the CM/ECF project
director, went to the Northern District of Ohio to assess the situation.
In just under three months, the team came up with an electronic filing
system and ironed out the myriad details, including security, electronic
signatures, quality assurance, and notification. Then they went to
the Judicial Conference Committee on Automation and Technology, and
next to the Judicial Conference itself, for approval of a pilot project.
It was a project that the Committee with its successive chairs, Judge
J. Owen Forrester (N.D. Ga.), Judge Edward W. Nottingham (D. Colo.),
Judge Edwin L. Nelson (N.D. Ala.), and Judge James Robertson (D. D.C.),
would guide and shape into a nationwide initiative over the next several
years.
Forrester, then chair of the Automation Committee (now called the
Committee on Information Technology), already was sensitized to the
overwhelming paper problem.
“In 1991, I had a 5’8” law clerk,” Forrester recounts. “One day, I
came into the office, and there he was standing beside a pile of papers
for one summary judgment motion stacked up as tall as he was. That’s
when it occurred to me. We needed the same control over the documents
in a case as programs like Westlaw gave us over the law in a case.”
That control, he knew, would come with electronic case filing. In
1995, the Judicial Conference, at the behest of the Automation Committee,
approved as a five-year goal the development of electronic case filing.
The Conference also approved proposed amendments to the Federal Rules
allowing district courts to accept filings by electronic means. A
pilot project was quickly approved for electronic filing in the Northern
District of Ohio. On January 2, 1996, the district required any attorney
filing a document in a new maritime asbestos case to do so using the
electronic filing system.
Forrester already was looking ahead. Clerks of court around the country
had been pushing for a new case management system to replace their
own aging systems.
With assurances from the Administrative Office that it was feasible,
Forrester insisted that electronic case file capability accompany
any new case management system. Finally, Forrester appointed fellow
Automation Committee member, Judge James Robertson, chair of a new
Subcommittee on Case Management and Electronic Case Files. CM/ECF
was on its way.
Courts Catch a Wave
Most courts didn’t have to be sold on the advantages of ECF. By some
estimates, one-half to two-thirds of the bankruptcy courts were scanning
or imaging documents in cases well before ECF. But imaging files is
laborintensive and takes up a large amount of electronic file space.
District and bankruptcy courts also were looking for alternatives
to the aging databases used to manage cases. The old software was
so far out of step with modern business tools that computers could
no longer be purchased that would run the programs.
Bankruptcy Judge Cecelia Morris in the Southern District of New York
was bankruptcy clerk of court in the mid-90s. In November 1996, her
court was one of the first nationwide to implement a CM/ECF prototype.
She recalls that moving to CM/ECF was not a choice, but a matter of
necessity.
“It was 20 minutes between screens, using our old software,” said
Morris. “Clerks would enter information on a screen and go do something
else while they waited for the next screen to come up. The number
and size of files on the system contributed to the slowness.”
According to Bockweg, getting from CM/ECF pilot program to official
court prototype required gathering convincing data to address a list
of concerns that court managers had compiled. Could the courts rely
on attorneys to electronically enter documents correctly? Would they
be willing to do it? Was the right technology being used? And, remarkable
in retrospect, would the Internet survive?
For answers, the AO learned from a cost-benefit analysis study, conducted
surveys, looked at commercial products for their capabilities, and
brought together over 100 judges, clerks and court staff for demonstrations
and assessments of systems. In late 1998, the decision was made to
go forward with the in-house development of CM/ECF systems.
“The staff did the necessary spade work, and with support and encouragement
from key judges and court staff together, we took the big leap toward
the near-paperless court,” said AO Director Leonidas Ralph Mecham.
“CM/ECF may be the greatest technological innovation in my nearly
18 years associated with the federal courts. We’re inventing a system.
No court system anywhere is doing electronic case management and filing
to the extent that we are.”
In the summer of 1999, Mecham announced that support for the Judiciary’s
legacy case management systems (ICMS and NIBS) would be discontinued
once CM/ECF had been made available to all courts. The national rollout
of the CM/ECF systems for bankruptcy courts began in early 2001, and
the rollout for district courts began in May 2002. Courts wishing
to implement CM/ECF do so in waves, with a new wave beginning every
two months. Wave 17 is now underway, and implementation for district
and bankruptcy courts is projected to end in 2005. Implementation
of the CM/ECF systems for appellate courts is scheduled for late 2004.
No
Computer? No Access? No Problem. |
It may be an electronic
case filing world in the federal courts, but paper aficionados,
pro se filers, and technophobes have nothing to fear. At least
some paper files still will be accepted in all federal courts.
In some courts, pro se cases are exempt from electronic filing
requirements. In all federal courts, a pro se filer still may
bring a case to the clerk's office, where it can be scanned
into the system. Personal computers and/or scanners are available
in clerks' offices for their use, or court staff may scan the
papers.
Even in courts where the bar is strongly encouraged to file
all pleadings in a case electronically, attorneys may seek to
show good reason why circumstances prevent them from filing
electronically. |
Beginning implementation puts a court on a 10-month schedule with
hundreds of tasks to accomplish before going live. Not all courts
elect to implement both the CM and ECF systems immediately. Some choose
to delay ECF until the CM component is up and running for a while.
Courts also may choose the option of maintaining their documents electronically,
without accepting electronic case filings over the Internet. Of the
courts implementing CM/ECF, almost two-thirds of the district courts
and 80 percent of the bankruptcy courts are using both.
Shared Experiences Answer Many Questions
The good news and the bad news about CM/ECF is that there are, in
the words of one project manager, “a million ways to configure the
system.”
“Why isn’t it a turn-key operation?” asked Morris. “Because every
court is unique.”
The District of Maine began using the CM system in February 2003,
and the ECF system in October. But work on the project for Clerk/Magistrate
Judge William Brownell, Chief Deputy Clerk Linda Jacobson, and Automation
Specialist Michele Hodgins actually began 18 months ago.
“The first thing we did,” said Brownell, “was visit the district court
for the Western District of Michigan. It’s similar in size to our
court, but it was also one of the few district courts far enough along
in the process for us to learn from them.”
The Maine team went for systems application training at the AO’s Systems
Deployment and Support Division in San Antonio, Texas. They started
working on their court’s “dictionary” of filing events, which is really
a breakdown of how a case moves through the court and varies from
court to court. They received a readiness book with the official implementation
schedule. Like all courts implementing CM/ECF, it was assigned an
AO team, which could provide technical and operational assistance,
and a mentor court that had already gone through implementation. Conference
calls with the AO team and the mentor court, the District Court for
the Eastern District of New York, were scheduled every two weeks.
The Maine team also was assisted by staff from the District of Nebraska.
“Personal interaction is really important,” said Brownell. “The Nebraska
court staff shared their experiences with us in visits and by videoconferencing.
Then, when we tried to determine what processes were right for our
court, we didn’t have to reinvent the wheel.”
The Nebraska staff members who helped Maine were part of a 13-member
project team responsible for implementing CM/ECF in the District of
Nebraska. Nebraska was the first district court to implement CM/ECF
for criminal cases and the first to convert all of its civil and criminal
cases to CM/ECF. The team currently mentors four courts in CM/ECF,
and since February 2002, has trained more than 1,000 attorneys and
their staffs in eight cities throughout the state. In recognition
of its work, the Nebraska team won the 2003 Director’s Award for Excellence
in Court Operations.
Court mentors are a significant help for courts beginning their implementation
process, but in October 1997, Pat Brune, clerk of court for the Western
District of Missouri, was breaking new ground at one of the earliest
district courts to implement CM/ECF. In 2002, she received a Director’s
Award for Outstanding Leadership for her yeoman’s work in moving both
the district and bankruptcy courts to the CM/ECF systems.
Her innovations included training and support to judges, staff, and
the bar, and the addition of public terminals and scanners in every
divisional office to increase public access. She was generous in sharing
her expertise with courts across the country, helping others with
policy decisions and procedural changes. In fact, Brune and her staff
were so successful with their implementation that the court unanimously
voted to begin maintaining their entire civil docket electronically.
“Pat Brune was a pathfinder in developing ways to install the systems,”
said Robertson, current chair of the Committee on Information Technology.
“She was instrumental in inventing and passing on strategies for rolling
out CM/ECF to the courts. She drew the template by organizing public
meetings on CM/ECF, visiting law firms to tell attorneys about the
changes, training her staff, and re-engineering the processes of the
clerk’s office.”
Western District of Missouri Deputy Clerks of Court Glenda Curl and
Jane Kollmeyer remember that implementing CM/ECF was “like skydiving;
extremely exhilarating, but very scary.” And there was an unexpected
bonus: a kind of spring cleaning for the court.
“Implementing such a large and comprehensive product caused us to
look into EVERY process and EVERY policy and procedure with a microscope,”
said Curl. “Because of that, we’ve become an even more efficient unit
as we eliminated outdated practices.”
Converting Courts, Judges, and Attorneys,
Too
In the Southern District of New York, Clerk of Court Mike McMahon
is in the middle of his court’s conversion, with CM/ECF slated to
go live by December 1. It is a work in progress, but CM/ECF already
has made an impact.
“Our court is over 200 years old, and some procedures are outdated
and need revamping,” said McMahon. “As we got our dictionary and system
up to speed, we had to track every document coming in the court and
how it would be handled electronically. Now we have a better understanding
of how we function.”
McMahon is making certain the attorneys who file cases in the district—and
who now will be strongly encouraged to file electronically—are
not left behind. He has developed a network of law firms with 500
contacts. Updates on the CM/ECF systems go out to the contacts, who
are the first line of help for their attorneys. All courts going to
CM/ECF have involved the local bar with their plans early in the process.
| The technological innovations and cooperative effort the
Case Management/Electronic Case Files systems demanded involved
judges and staff too numerous to count, cutting across every
level of the courts, Judicial Conference committees, and AO
directorates. Thanks to all involved, the development of CM/ECF
and its subsequent rollout has forever changed the way the federal
courts conduct business and the way the public accesses court
records |
Leonidas Ralph Mecham, Director
Administrative Office of the U.S. Courts |
“We brought attorneys into the process from day 1,” said District
of Maryland Deputy Clerk Fran Kessler. “We even had attorneys on some
of our decision groups. Before going live with the systems, we gave
demonstrations, and then offered training at the court for both attorneys
and their office staff, because it’s often staff who do the actual
electronic filing. Despite this, there are a few who still groan and
grumble about ECF.”
Attorney acceptance of CM/ECF, particularly the ECF component, always
has been a focus.
“There was more concern about this group than with employees,” Curl
said. “Many attorneys were apprehensive about the anticipated costs
of revamping their law offices. But once we reassured them that any
modern law firm would probably already have the equipment and required
software, many were anxious to give it a try. And once a few pioneers
were on-board, no one wanted to be left behind. We’re quite certain
it would be difficult to take this service tool from them now.”
Nationwide, more than 50,000 attorneys and others have filed cases
in the CM/ECF systems. There is a lot for an attorney to like about
CM/ECF.
“It’s certainly easier to file papers,” said Robertson. “They can
file anytime, and there’s no courier.” Robertson also points out that
in the old days, if there was a case involving 50-60 law firms, multiple
notices and service copies would have to be mailed out to each firm.
Now, this process is automated. In addition, attorneys can simply
log-on and see what’s been filed in the case.
There was another concern: judges’ acceptance of CM/ECF. The Bankruptcy
Court for the Western District of Washington was among the first to
implement the system, and its judges may be fairly typical of how
judges around the country have accepted the new system. According
to Bankruptcy Clerk of Court Mark Hatcher, the district’s five bankruptcy
judges were concerned about how the change to electronic case files
would affect their work and whether the system would prove flexible
enough to accommodate their various practice styles.
“One judge does not accept paper from attorneys at all,” he said,
“and relies exclusively on his computer. Another judge still has an
Underwood typewriter in his chambers and relies on his staff to print
whatever he needs for his calendars. The other judges operate somewhere
in between. This is one of the beauties of CM/ECF—any style of
practice can be accommodated.”
Helping both judges and attorneys adjust to CM/ECF was the early decision
to adopt the Portable Document Format (PDF).
“There was some criticism at the time that PDF wasn’t as flexible
as some formats, and there were concerns that it was proprietary software,”
said Robertson. “But I remember Chief Judge Dean Whipple in the Western
District of Missouri telling me he loved PDF. When I asked him why,
he said, ‘Because it’s invisible to me.’ We went with PDF because
what’s printed out looks exactly like what went in. For judges and
attorneys who are resistant to change, this gave them something that
looked familiar.”
Meanwhile, courts already using CM/ECF are asking more of their systems.
This could create problems when the system or the network is not designed
or intended to do many of those tasks. System performance slowdowns
have occurred in some courts. They have generally been attributable
to problems that are relatively easy to fix once they have been identified,
such as too great a load on the communications network or a setup
problem with the system. To address the network overload, additional
communications lines can be added, or steps can be taken to fine tune
the existing network.
New capabilities are regularly added, software gaps continue to be
filled in and processes are more and more automated.
With the release of Bankruptcy Version 2 this year, which includes
an Internet credit card module, the system has delivered another time-saver
for both the court and the bar. Version 2.3 was released in September,
and Version 2.4 is in the planning stages. District Version 2 will
be released in January 2004.
Some courts had developed local programs that worked in conjunction
with the legacy systems to provide special reports and other features.
Even with CM/ECF’s greater functionality, courts still may want to
preserve some of those local additions. “We are still working on integrating
locally developed programs into CM/ECF,” said Terry Miller, clerk
of court for the Bankruptcy Court in the District of Arizona. “Since
the AO develops the product to a general national standard, each court
must integrate its locally developed applications.”
Benefits Change Courts
Bankruptcy Judge Morris says that without CM/ECF, handling mega-bankruptcy
cases like Enron and WorldCom in the Southern District of New York
would not be possible.
“Truly, it is a new way of doing business,” said Morris. “We look
at the influx of filings now, and don’t know how we could manage without
it.”
For Kessler in the District of Maryland, instant access is the key
benefit of CM/ECF. “When I’m at the Baltimore court, and I need a
case that’s at the Greenbelt, Maryland courthouse, I don’t have to
call down there and have it shipped up to me. From the attorney’s
perspective, it’s probably the e-mail notification.”
In the Western District of Washington’s Bankruptcy Court, it’s the
reduction in paper.
“Two years before we went live,” said Hatcher, “we did a study and
found that on a daily basis, the court received about 11 feet of paper
stacked from floor to ceiling. This included new petitions, chambers
and trustee copies, proof of claim forms, and miscellaneous pleadings.
We now estimate that our daily intake of paper is only about 2.5 feet.”
For the Western District of Missouri, a few of the benefits are the
simultaneous viewing of a file, direct filing with no lag time for
processing, and instant notification to parties.
“As does all of our society,” said Curl, “we rely on our machines
to manage our records. There’s a nostalgic comfort in seeing stacks
of files that signify the importance of a matter before the court.
The flourish of a judge’s pen across an order is gone. Sticky notes
hanging out the side of a folder—gone. The heavy stamp of a matter
filed at an intake counter—gone. In their places, however, are
so many benefits that we can’t imagine going back.”
For more about CM/ECF, visit www.uscourts.gov/cmecf/cmecf.html.
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