Wednesday, February 6, 2013

E-filing: Are We There Yet?

The legal profession is an industry built on paperwork.  I say this in jest, but it's true.  Records and trial transcripts can span thousands of pages with the appellate court requiring the appellant to file dozens of copies. This results in appellate work becoming a very expensive enterprise.  

An example: I am handling an appeal involving the threshold issue of whether my client suffered a "serious physical injury" under New York's no-fault law.  Of all the appeals an appellate court decides in a given year, the issue involved here is fairly elementary and straightforward.  The record amounts to no more than 400 pages, and my brief will probably be no more than 30.  Yet, the Second Department requires the appellant to file 9 copies of both the record and brief to serve two copies to each adversary.  The end result is a printing job of more than 5,000 pages!  If the attorney uses an appellate printer - and many do - the client will face a minimum of $2,500 in costs (inclusive of filing fees, taxes, postage, printing, and paralegal time).  This figure is, of course, on top of the attorney's fee, which is never cheap.  And, again, this is just for a so-called "simple" appeal.  Lord help you if you wish to appeal an unfavorable verdict from a two-week jury trial.  At that point, the printing costs can easily exceed $10,000 or more.    

The Appellate Division, First Department began instituting an e-filing system a few years ago.  All the attorney needs is an Adobe Acrobat platform that can assemble a table of contents, and, of course, email.  Unfortunately, though, e-filing in the First Department is supplementary; the Court still requires the parties to file boatloads of hard copies.  Meanwhile, the Second Department has not instituted any e-filing system whatsoever, and apparently has no plans to do so.

So, why the reluctance to embrace technology?  I hear more and more about how judges and clerks are reading briefs on their computers and tablets.  I also hear about how many middle class individuals are unable to afford legal services, resulting in a justice gap whereby the poor secure pro bono or assigned counsel representation and the rich retain white shoe service.  E-filing seems like such an easy step toward reducing the costs of litigation (though I suppose some may find the high variable costs being a useful barrier to entry)?  I know that other government agencies have made the leap into the twenty first century.  Unemployment benefits can be obtained online.  The federal government fills its ranks through an online system called USA Jobs, and just recently the New York Court of Appeals has begun uploading court documents to a public database (though it too has been unwilling to shed its fondness for hard copies). 

So, I ask again: aside from the usual explanation that "government is slow to change," why the hesitation to transition exclusively to e-filing?  Thoughts?      

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