Just Do It

Just Do It

By David R. Corder

Associate Editor

Earlier this month, U.S. District Judge Susan Bucklew became impatient. She ordered former Clearwater attorney Maxwell Battle Jr. to start electronically filing court documents o or else. If he doesnit, she said sheid remove the now Montana-based practitioner from the case.

Bucklewis Jan. 5 order signals a growing intolerance among federal judges in the Florida Middle District toward attorneys not moving quickly enough toward a paperless filing system. Even Chief Judge Patricia Fawsett has filed a similar oder against a lawyer.

Such actions shouldnit surprise attorneyss admitted to practice in the middle district, say proponents of the electronic filing system. Early last year, the district embarked on an aggressive public relations campaign to promote its case management/electronic case filing (CM/ECF) system. Judicial officials promote the system on its Web site at (flmd.uscourts.gov). And advisories were mailed to attorneys and law firms about free training seminars long before the system went live on July 12.

Bucklew told GCBR in April that as the judge overseeing the middle districtis conversion to a paperless system, she expected lawyers to file via the Internet.

Cost concerns

It has been a particularly difficult time for judges and court clerks in the middle district and elsewhere, they say. In November, Congress allocated $5.42 billion to the federal courts for fiscal 2005 instead of the $5.7 billion sought.

The tight budget affected the Southern District of Florida so much, for instance, administrators there eliminated more than two-dozen support personnel. It forced similar cutbacks at federal courts in several states.

iWeive had to be extremely conservative (in the middle district),i Fawsett says. iOur commitment is to maintain our staff. So what we have done is to not replace people who voluntarily leave. In other aspects, weive had employees assume other responsibilities. Whatis happening here is our employees are working extremely long hours; in some cases, longer than should be reasonably expected.i

Budget concerns bolster the need for all of the districtis civil and criminal trial lawyers to file electronically, Fawsett adds. The CM/ECF reduces the amount of time clerks spend with files. It also cuts down on physical storage space for archived paper files.

iWhen I became chief judge, there were 838 boxes of files that had to be stored in the archives,i she says. iWith electronic filing, we donit have to do that anymore. It saves on storage space.i

Buying in

Even Battle acknowledges he likes the benefits of the electronic filing system. He is familiar with the system through petitions he has filed on behalf of clients in the U.S. Bankruptcy Court.

Bucklewis order came as a surprise to Battle only because he no longer represents the client referred to in the order. About five years ago, he relocated his legal practice to Kalispell, Mont., from Clearwater. Ever since, he has been winding down his Tampa Bay area practice. He is working to resolve Bucklewis order even though heis no longer affiliated with the client.

iIn that particular situation, you might say it caught me off guard but only because there is another law firm representing the client,i Battle says. iItis something Iim resolving, because the judges have to resolve their dockets. Theyire just trying to keep things moving along smoothly.i

Since electronic filing is relatively new, officials at the Administrative Office of the U.S. Courts cannot say exactly how many attorneys are using the CM/ECF system. The conversion is happening in phases.

iThere are clear indications itis effective, absolutely,i says Dick Carelli, the federal judiciaryis Washington, D.C.-based spokesperson.

But some practitioners, such as Tampa criminal defense attorney W.F. iCaseyi Ebsary Jr., wonder whether the majority of federal practitioners have bought into this new way of dong business.

As chair of the Hillsborough County Bar Associationis technology section, Ebsary organized CM/ECF training seminars that attracted several hundred lawyers, paralegals and other support staff. He invited Brett Kappes, president of South Tampais PC Generation Inc., to offer technical advice. Kappes works with a number of lawyers and law firms in South Tampa.

Kappes says he offered one hour of free consultation time for any law firm that wanted him to inspect an existing computer system and offer advice on changes needed to meet the middle districtis electronic filing requirements. He asked for no obligations if he made a recommendation.

iThatis no-strings attached,i Kappes says. iWe didnit make a single sale out of all of those seminars.i

That apparent lack of interest on the part of other attorneys bothers Ebsary, who raves about the benefits of the electronic filing system.

iI now generate half as much paper since I began electronic filing,i he says.

No surprise

The decision by the judges to mandate electronic filing through court orders doesnit surprise Ebsary. He says he understood their point of view prior to the July 12 implementation deadline.

iThe judges made it clear that electronic filing was going to be the law of the land,i Esbary says. iThatis why I became involved in the education effort of lawyers and their staff in how to use the system.i

Nor does it surprise Tampa lawyer William Jung, one of two elected vice presidents in the Federal Bar Associationis 11th Circuit.

iItis here, and weire going to make it work,i says Jung, who practices civil and criminal law in the middle district. iOnce itis in place, itis great. Itis so much better than the old system. Itis instantaneous. It equalizes the playing field between the big guy and little guy, between the government and the defense in criminal cases. Putting all that aside, itis just handy.i

Jung acknowledges he harbored some trepidation.

iNobody was griping and carping about this more than I was,i he says. iI didnit think I could ever do it, but now I can do the whole kit and caboodle.i

But Jung also understands the misgivings some attorneys may harbor about the system.

iThere are things that are a little irritating,i he says. iIf you leave the computer for 15 minutes to answer a telephone call, it will kick you off. Thereis a reason for that. You canit have 100,000 people plugged into it all day.i

Matter of rules

There is a potential conflict over electronic filing that exists between local administrative rules adopted at the district level and the Federal Rules of Civil Procedure mandated by the U.S. Judicial Conference, the federal judiciaryis policy-making authority.

Rule No. 5 of the federal rules still prohibits federal court clerks from refusing paper filings.

iA court may by local rule permit papers to be filed, signed or verified by electronic means that are consistent with technical standards, if any, which the Judicial Conference of the United States establishes,i the rule states. iA paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules. The clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or by any local rules or practices.i

To change the rule, the Judicial Conference must vote to revise the language and submit it for review by the U.S. Supreme Court, Carelli says. Then Congress has the right to veto.

Nevertheless, Jung cautions any attorney who might think about citing such an argument as a reason against electronic filing. U.S. district judges still possess significant autonomy, he says.

iJudges have the right independently of any rule to run their own house,i Jung says. iSo if a judge wants a picture of an eagle on the front page of every pleading the judge could do that.i

The Federal Rules of Civil Procedures, indeed, guide court procedure, Fawsett says. But she also says the local districts may depart from those rules. Thatis why the middle district would consider exemptions from electronic case filing on a case-by-case basis.

iThere can be exceptions, if there is a need or a circumstance in which (an attorney) feels (he or she) cannot participate,i she says.

It is apparent, however, Fawsett expects such exceptions to be a rarity. iIim very pleased and gratified at the response weive received from attorneys,i she says.