Dorothy F. Easley
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As you know, the Florida Bar Appellate Practice Section, law firms and practitioners around the State of Florida sponsored in various forms the American Bar Association's Appellate Judges Institute Summit [AJEIS] in November, which our own Judge Martha Warner chaired this past year. The ABA's Appellate Judges Conference and Florida's Appellate Judges Conference have, for years, produced outstanding educational programs for our appellate judges, state and federal. The State Justice Institute was the AJEIS's primary source of education funding, and that was itself essentially defunded by the federal government. The Appellate Judges Conference decided to reinvigorate its educational efforts by establishing the Appellate Judges Education Institute (AJEI), as a 501(c)(3) non-profit corporation, housed at the SMU Dedman School of Law, which staffs the AJEI pro bono. The AJEI's primary mission is to provide quality education for the appellate judiciary, and this past year, more than 120 judges registered to attend the 2009 AJEI Summit. The AJEI also allows the attendance of appellate practitioners, who also greatly benefit from quality appellate education.
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Many of these judges were able to attend the AJEI Summit on scholarships. Our Section also co-hosted with the AJEIS a Welcome Reception that warmly greeted our judges and practitioners from around the country. It was widely described as a very successful feature of this year's AJEI Summit. On behalf of the Section, I thank all of you who sponsored and attended the Summit in November 2009 to help make that such a success. And this issue of The Record has a special page recognizing those who co-hosted the AJEIS-APS Welcome Reception.
Also at the AJEIS, Judge Phil Espinosa of the Arizona Court of Appeal, Judges Jim Kirsch and Margret Robb of the Indiana Court of Appeals, and our own Tom Hall, Clerk of the Florida Supreme Court were invited to speak on the topic of e-filing from the various court and judge perspectives. I was also invited to speak on what appellate lawyers wanted from an e-filing system. To that end, I researched and presented written materials almost 40-pages in length that, despite the many pages, only hauntingly provided a superficial overview of all that courts around the country are doing in the e-filing arena. But, in light of the current e-filing efforts in Florida, I offer below some considerations that came out of the presentations regarding what our appellate attorneys want from our e-filing system.
In the materials for the AJEIS presentation, which are outlined in my written materials to the AJEIS for Electronic Filing: The Sun Sets on the Paper Trail, ABA-AJEI Panel Presentation (Fall 2009), I located at least 24 states that currently have e-filing in various forms. Some mandatory. A few discretionary. As Florida's judicial system continues to develop its own e-filing construct, we offer the following on what these various states are doing, which point to basically eight areas of greatest importance to practitioners using e-filing, discussed below:
- Ease of e-filing: Appellate attorneys want their documents to quickly upload into the system, either through a portal or an emailed format. For example, Alabama, Oregon, Tennessee and Nevada (some states's systems being more expansive than others) allow the attorneys to upload documents into their court e-filing systems. Delaware and Colorado on the other hand use a LexisNexis system that allows direct filing. Beyond all of this, however, delays or glitches in uploading those documents affect our deadlines. This is especially true when we are completing a brief at 11 p.m. for an 11:59 p.m. cutoff filing time. Appellate practice is a heavy deadline-driven practice. As most appellate lawyers also provide trial support, we underscore that, from the moment an appealable order is entered, appellate is much more deadline driven than trial work. Additionally, our deadlines are driven by the happening of a preceding event, which renders our practice even more deadline driven. When documents are filed, we want to know that they'll be filed quickly.
- Accessibility of the court website, docket and documents therein: The Florida Supreme Court's website allows some access to briefs, orders and opinions and our appellate courts allow online review of the dockets, but attorneys, who now work from anywhere, want to be able to access their files and all the documents in them, from anywhere. Many of our trial courts, Lee County for example, allow registered attorneys with passwords to access the court file obtain documents. Tennessee allows free access, except parental termination appeals, juvenile appeals and certain criminal appeals where an entire record is sealed. Appellate attorneys want that same level of online access to permit frequent review their appeals so that they can closely monitor them, especially in time-sensitive matters such as extraordinary writs or expedited appeals.
- Security [e.g. the website being too accessible]: At the same time that attorneys want access, they also want file security from hackers and trawlers. We inherit our records. While sensitive financial, HIPPA, proprietary and other confidential information is being increasingly monitored and managed at the trial level, appellate attorneys do not have control over the documents and data that trial lawyers and pro se litigants have placed into the public court record. We want to be sure that our electronic records are safe. Alabama, Connecticut, Nevada and Oregon, for example, have various systems to address that: lawyers-only, no pro se litigant access and registration and password requirements. While Florida has a right of access to public records, we also have a competing Constitutional right to privacy. We need to be able to assure our clients that their records in Florida's e-filing court system are secure and we need to be able to specify the amount of time that those files will be maintained in electronic format.
- Confirmation of e-filing and, if e-service is permitted, then confirmation of e-service receipt: Attorneys also want "confirmatories" because our practices are built on those. We need written proof that our document was recognized as filed. Florida currently has an email confirmation system that a document was received. Alabama, Nevada, Oregon, and Tennessee, for example, have systems developing in various forms that allow uploading into court systems, and the document is then deemed filed upon uploading and the e-confirmation that it's filed. Alabama has what it terms a "transaction confirmation". Iowa even sends email notifications to service subscribers when court opinions, orders or news releases issue. We want similar options in Florida's e-filing system.
- Clearly articulated appellate rules that incorporate e-filing: Attorneys also need a documented set of rules that lets us know deadlines, what is due next, the form and method in which it is due, the form and method of service on the opposing party , and how e-service may affect other deadlines (for example, Florida's 5-day service rule). Florida now has a rule on the filing of electronic transcripts. North Carolina is promulgating appellate rules on electronic transcripts, electronic records and electronic appellate pleadings. The Florida Rules of Judicial Administration Committee, the Appellate Court Rules Committee, and lower tribunal Rules Committees are continuing to work in tandem on this aspect. These rules will be vital to a robust appellate e-filing system.
- e-Service options: Our current private technology that relies on email raises reliability and confidence concerns. Some documents sent via email either get caught in a law firm spam filter or do not arrive at all. Those concerns are a potential minefield for appellate motions practice. Alabama, California and Tennessee have systems in various forms for e-service and electronic dissemination. We need our e-filing system to also have a reliable system for electronic dissemination to obviate those concerns.
- Information Technology ("IT") support: Florida has many appellate sole and small appellate firm practitioners, and it appears from American Bar Association materials that this is typical. Our small and sole practitioners have very limited IT support. Even fewer have in-house IT support. So, Florida's e-filing system needs to include IT support for learning the system and for consulting court personnel in the event of uploading or other IT problems. Connecticut, for example, has live interactive training for attorneys/firms for explanations in how to file electronically. Oregon even requires training to use its e-filing system. The Eleventh Circuit Court of Appeal has a strong (and patient) IT support system to walk attorneys through the electronic filing of briefs.
- Costs: Florida's current e-filing (email) system is free. Any e-filing should be a cost-saving-for-clients, not cost-shifting-to-clients, measure. We've increased filing fees at all levels. Transcript costs continue to go up; for example, a five-day trial can carry a transcript cost of roughly $8000.00. These costs can be so high that they preclude the middle- and lower-income sectors from being able to afford appeals, and even more so in today's climate. For a single parent of two on slightly-above-minimum wage, seeking to appeal child support and alimony rulings, or for lower- and middle-income groups working two jobs to keep ahead of foreclosure, the costs of an appeal are already prohibitive and already preclude a Constitutional right to an appeal. If e-filing is made mandatory and if it adds additional fees, those two components constitute cost-shifting that Florida citizens will bear. In this economic climate, attorneys, already unable to bear additional costs, are hardly in a position to bear these added costs. The layering of additional e-filing fees raises serious access to court issues, by pricing out lower-income clients and pro bono appeals, and for that sector not poor enough to qualify for Legal Aid but with no disposable income to pay appellate costs, let alone even-heavily-reduced appellate fees retainers. This also impacts Legal Aid and Legal Services of Florida organizations, already operating on extremely limited resources.
Conclusion: Appellate practitioners are strong supporters of the use of technology, much of which we already employ in our practices. We use electronic records to ensure the accuracy of our record citations and to securely store them internally. E-filing is a key part of that structure. We also support the savings and file security that our already-over-burdened courts stand to gain from the reduced costs of document storage and management. We also save time in document filing and dissemination and, therefore, save our clients money as well. The reluctance to embrace new technology needs to be set aside. Whether we like it or not, we are moving into an electronic age and, rather than clinging to the way we've filed and served for the last 20 years, we have to adapt, aggressively educate ourselves in the best way to address the technology, and collaboratively advance rules to address the myriad of issues that arise. Appellate attorneys want to be, and can be, part of Florida's e-filing technology solution.
Dorothy F. Easley
Chair 2009-10, Appellate Practice Section
Easley Appellate Practice PLLC
4000 Ponce de León Blvd., Suite 470
Miami, Florida 33146
easleyappellate@gmail.com
www.easleyappellate.com
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