Thursday, October 25, 2012

State court efiling is nearly upon us. Let's have two cheers for efiling. Maybe one-and-a-half.

I find myself unable to work up a great deal of enthusiasm about the Illinois Supreme Court's announcement yesterday that brings us one step closer to efiling in all Illinois counties.

Chief Justice Kilbride says Illinois "is behind on using e-business and e-filing in its courts" and I won't argue the point.

My experience in federal cases reassures me that efiling has some advantages, chief among them the ability to file and serve a motion or brief by pressing a button. That is a distinct advantage for solo practitioners -- and I am one -- who otherwise have to endure 'down time' copying, assembling, sending, and filing documents.

But I have never used efiling in a Cook County case -- Cook County had a pilot efiling program predating yesterday's Supreme Court announcement -- and I hope I won't now be forced into using it anytime soon. Not when it costs $4.95 to file a document and the payment of any filing fee automatically incurs another 4% surcharge.

In the Federal system PACER seems to function well enough without massive per document surcharges. If we must go down this road -- and I fear we must -- why not go toward a PACER model?

But my tepid response to yesterday's announcement is not motivated solely by personal parsimony.

But I keep reading -- online and on paper -- that studies continue to show that people don't read things on screens the same way as they read paper. A quick Google search this morning (because that's how things are done now, right?) pulled up these interesting articles (none of which I'd seen before) on the topic: "Do E-Books Make It Harder to Remember What You Just Read?", by Maia Szalavitz, posted on Time Health & Family, March 14, 2012; Does the Brain Like E-Books?, New York Times, October 14, 2009; "Our 'Deep Reading' Brain: Its Digital Evolution Poses Questions", by Maryanne Wolf on Niemann Reports, Summer 2010.

I would sum up my reading (today and previously) this way: Most of us -- even those of us who live increasingly online -- feel, on some level, that screens are for ephemera -- LOL cats and water-skiing squirrels, bad jokes, inconsequential emails and, yes, blog posts. Serious stuff needs to be on paper. At least, a lot of us read paper more carefully and more critically.

Now, of course, those of us who feel this way may be a dying breed -- or, more optimistically, perhaps we can look forward to working through a transition period from which we will ultimately emerge able to read screens with the same intensity and care as we now read paper.

Great.

And in the meantime, our most carefully thought-out work product, the briefs and motions that we lawyers prepare, will be reduced to pixels on a screen, to be read by a judge who may or may not have mastered this hoped-for digital transformation.

Can this really be good for us lawyers... or for our clients?

Also, I could not help but note the restrictions on discovery filings. In Cook County, a lot of us still file our discovery responses with the court -- it saves arguments down the road about who served what when. That may no longer be possible under any standardized efiling regime. Yes, it works in Federal court, but in Federal court one denies receiving documents that he or she has in fact received at some substantial peril.

I said I would not argue that our courts are behind in matters of e-business and e-filing. But I am tempted to believe that this is not necessarily bad.

1 comment:

Michael Poulos said...

If the court clerks have trouble keeping track of paper, how will they keep track of electrons? But seriously, the e-filing fees are a nuisance. Yes, it is cheaper than going downtown, but e-filing should save the court clerk money. Why not encourage use by making it free? As for on-screen retention, that is an interesting observation. I prefer on-screen for most items, and the bigger the screen, the more efficient my work.