Print This Article

Electronic Filing: Coming to a Court Near You
by Alan R. Brayton, Esq.
August 2004

At 3:25 on one warm summer afternoon in Colorado, attorneys from a Denver-based firm of Godin & Baity filed a $1.7 billion lawsuit. On that same day, the Baltimore Law Offices of Peter Angelos filed amended complaints in seven cases. In Texas, a two-partner firm filed a response to a complaint in a two-party personal injury case. My firm in Novato, CA, filed oppositions to several motions in our pending asbestos cases in San Francisco Superior Court, and reviewed the file of a bankruptcy pending in Oakland.

It’s not the size of the action, the parties involved, nor legal precedence that makes these cases interesting. What’s interesting is that these firms are all participants in a quiet revolution taking place in law firms across America—quiet because all you hear is the sound of clicking computer keyboards as the filing and service of documents is done online. In fact, on that same warm summer day, more than 15,000 documents were electronically filed and served throughout the country—without a single piece of paper being printed, a single envelope stuffed, or a single postage stamp applied.

My own experience with e-filing goes back to 1998 when the San Francisco Superior Court selected LexisNexis to implement the first e-filing system in a California court to deal with a growing asbestos caseload. Back then, there were only a handful of courts around the country with e-filing. But in 2004, more and more courts at the state and federal level are implementing e-filing programs and existing projects are expanding. There are active projects in over twenty states and many courts are now mandating electronic filing and service.

Law firms that integrate e-filing into their normal practice management will be prepared, but those that do not will be left scrambling. Given the promise of widespread e-filing around the country, how can you ensure that your firm will adopt the best practices needed to be prepared for and take full advantage of the revolution?

Operational Efficiencies/Resource Constraints

With the economic challenges of the last several years, even the most profitable law firms have paid close attention to operational efficiencies. Litigation itself has grown dramatically over the past two decades—at triple the rate of the U.S. population, according to the National Center for State Courts. However, many firms specializing in litigation, in an effort to manage costs, have reduced staff or postponed hiring—both of which have resulted in limited human resources available to deal with the corresponding volume of paper associated with this growth. As a result, law firms and courts alike are increasingly inundated with paper. If your firm fits this profile, electronic filing and service should be a serious near-term consideration.

Historically, there have been many forms of “electronic filing” available to the legal community for years but the technology was underdeveloped and court coverage was limited. With the growing maturity of Internet technology and recent improvements in security, usability and functionality, a handful of companies including LexisNexis,, and several case management vendors are bringing court-sanctioned e-filing into the mainstream. Further, the federal government is also aggressively rolling out its own Internet-based system for e-filing in all of its district courts as well.

Initially piloted at the state level to help manage complex litigation, e-filing is now also commonly used in more general cases such as domestic relations, landlord-tenant, and probate. And with round-the-clock access to the Internet, it doesn’t matter whether the courthouse is across the street, across the state, or across the country – or even that the courthouse doors physically close at 5 p.m. In fact, in San Francisco like many other jurisdictions, the courthouse hours have been reduced significantly, but with e-filing we are able to file any time of the day or night, any day of the week—including weekends.

Just as online banking and electronic income tax filing have been a boon to U.S. banks and the IRS, the legal profession is realizing the benefits of electronic filing and service of legal documents. In our firm alone, 100% of our asbestos cases for San Francisco Superior Court are available to file online. Because our offices are at least a one-hour drive from the court, this is a huge savings in time alone.

Electronic filing and service provides a clear financial advantage over the paper-based methods—making e-filing affordable for firms of any size. A typical electronic filing may cost under $15, not including filing fees, whereas the cost of a courier and the overhead involved in copying and mailing documents could be two to three times that amount. And with e-filing, less attorney and staff time is devoted to physically preparing a motion, the need for runners and couriers to deliver documents is significantly reduced, and multiple parties can be served with the click of a mouse. In many cases, we are also able to pay court fees online directly through the e-filing system and eliminate the time and disruption of having to cut a check and go through the manual accounting process.

Before e-filing was introduced, the filing and service of a lengthy paper document could easily consume a full day for a litigation support team. But with e-filing, a single staff member can file voluminous documents with the court and serve multiple parties in just minutes. Ultimately, you really have to ask yourself, should you or your staff really be spending so much of the day dealing with couriers, copiers, and court clerks over the handling of paper?

Managing Uncertainty and Increasing Control

By far, the biggest reason driving law firms to adopt e-filing is really the greater direct control we all gain over the delivery, management, and cost of filing and service. Over time, most law firms have developed a complex infrastructure to make sure documents are prepared, filed and served on time. The result of this conventional approach is lots of people touching lots of paper. And each hand-off means opportunity for errors, delays, and mishandling—even potential for liability. Every attorney has at least one story about a filing that was delivered to the wrong court, or the failure to meet a deadline, or an opposing counsel who claimed they weren’t served in time.

And after the “stress hour” when legal assistants pace in front of a copy machine before the filing deadline, there is the constant questioning of “Did my filing get delivered in time? Did the judge rule? Has opposing counsel responded with a filing yet?”

With electronic filing and service, there is greater certainty that documents are delivered by the deadline and to the right place. One reason is because secure, digital hand-offs directly to the court or opposing counsel provide almost immediate proof-of-service and filing receipts. The LexisNexis File & Serve system we use also enables “case alerts” to be set up so that parties are notified of new case activity. And by receiving service online, copies of motions are available at the same time they are filed with the court and not two days later through the U.S. mail—creating a more balanced playing field as a well as a more responsive system.

We get an additional benefit in the management of incoming service. By receiving service online we don’t get bogged down waiting for documents to make their way from the front desk to the mailroom to our desks. We get almost immediate access to service documents as soon as opposing counsel hits “send.” It also makes it easier to route documents because our paralegals and legal secretaries are online as well and can view and retrieve those documents.

Paper-on-Demand and the Online Case File

Does e-filing lead to a paperless office? Not necessarily—and that’s not a bad thing. Paper still has many advantages over computers for certain tasks. But what e-filing does offer is the opportunity to use paper-on-demand. With documents created, stored, and delivered online, there is definitely a reduced need to print out reams of paper. Some law firms and courts may be pursuing the vision of a paperless office but more often than not, a lot of people like myself still sometimes want to hold paper in their hands.

The power of an electronic filing system is the ability to store and retrieve documents more efficiently and more effectively than having a legal assistant search through file boxes or books scattered around the file room. The e-filing system creates an “online case file,” sitting in an electronic file cabinet enabling attorneys and their staff to select, sort, view, cut, and paste as appropriate.

You can print out only those documents in the online case file that you need to respond to, such as notices of hearing, motions for summary judgment, and orders. Then just view everything else online. That means quick and easy access to your documents, documents from opposing counsel, and other relevant case information. In some situations, you are even able to view public documents filed in other cases to support your research activities or expand client development. It is worth noting here that the LexisNexis system we use does accommodate sealed documents so that access can be controlled.

Getting Started

Many state or jurisdictional e-filing projects are driven by the court’s effort to address resource constraints and the difficulty in accessing information. And there seems to be growing momentum for e-filing initiatives around the country as evidenced by recent projects in Arizona, Illinois, and Michigan. Planned statewide initiatives in Texas, Virginia, Florida, and Missouri further demonstrate the broad-based expansion in the number of courts that will soon be available online.

But a court-centric approach frequently relegates attorneys to a supporting role and does not always address the challenges law firms face. For example, courts are concerned about the legalities of the service of documents, but not the actual exchange and management of those documents. The Bar is, and should be, a critical player in the development of e-filing and service projects to make sure our needs are met.

First, attorneys must become more active in the development of e-filing rules and in promoting the greater use of e-filing. This can be done by working with the technology committees of your local Bar Association or volunteering to sit on the court technology committee. Second, identify cases in which your firm is involved that would benefit the most from electronic filing and service and request an authorization from the court to start a pilot. And third, the firm should assign someone from within—an attorney or staff member—to be responsible for researching and assessing the available e-filing systems.

Electronic filing and service has proven to be a powerful litigation tool for law firms across the country. With even greater support from the legal community, courts will be given the incentive for further expansion.

Side Bar: Simple, Effective e-Filing Practices

From a technical standpoint, once you’ve selected an e-filing system, it’s advisable to have a high-speed Internet connection and a high-feed scanner (for exhibits). From a process standpoint, adhering to the following guidelines can help ensure that you get the greatest benefit from e-filing:

1. Assign a two-person tag team—an executive sponsor and a user-level point person—to serve as key contacts for others within the firm about e-filing practice, training, and procedures.

2. Train the entire staff—including attorneys—in how the system works. Part of this should include familiarizing users with revised local rules of procedure for electronic filing in order to comply with the court’s requirements. Done properly, training should only take between 60 and 90 minutes.

3. Establish policies and practices for your firm’s use of e-filing, e.g., mandate electronic filing for all cases of a certain type, or establish a “rule of preference” for electronic (vs. paper) filing in all cases where the court allows it.

4. Involve your accounting department. With e-filing, the hassle of check approvals is eliminated, but you may want to set up a process for paying against electronic bills and establish procedures for re-billing clients for the appropriate e-filing fees.

Mr. Brayton is a founding and senior partner of the law firm of Brayton Purcel,l and has been practicing law for over twenty years. Mr. Brayton specializes in all types of personal injury, products liability and mass tort litigation. He has served on the Board of Governors of the Consumer Attorneys of California and is an executive member of the Board of Directors of the Trial Lawyers for Public Justice Foundation.