Countdown to Mandatory E-Filing

Illinois attorneys soon will have to file civil cases electronically. Here's how you can be ready on day one.

E-Day is approaching for the Illinois court system. The deadline days for statewide mandatory e-filing, that is.

Attorneys filing civil cases before the Illinois Supreme Court and Appellate Courts will be required to do so electronically as of July 1, and the circuit courts across the state will follow on Jan. 1, 2018, pursuant to Illinois Supreme Court Order M.R. 18368 issued on Jan. 22, 2016. This comes 15 years after the court first launched an e-filing pilot program in September 2002.

"This is a crucial shift in policy and practice for the Illinois courts," says Mike Tardy, director of the Administrative Office of the Illinois Courts (AOIC). "It represents a fundamental cultural change in moving our system of justice into the use of digital technology. This will have access benefits, efficiency benefits, and ultimately, there will be cost savings."

The AOIC and Texas-based vendor Tyler Technologies, which has set up e-filing in part or all of 20 states, are working assiduously to ensure that the centralized electronic filing manager system, known as eFileIL, will be all-systems-go when the date arrives; in fact, it was already live in 59 out of the state's 102 counties by mid-April.

"The system is designed to be a delivery system to allow attorneys to do two things," says Terry Derrick, senior director of e-solutions for Tyler. "One is to electronically file their documents and get them to the court. The second thing it does is provide attorneys and legal professionals the opportunity to electronically serve the documents to opposing counsel, or anybody else on the case. It fills those two primary needs."

Where the system stands

The e-filing requirements apply to 87 out of Illinois' 102 counties; the other 15 had set up electronic filing already on their own and have been given the option to stick with their current version as long as the statewide system can communicate with it, Derrick says. Thus far, two of those 15, Clinton and Montgomery, have already switched to and gone live with the new system, and five others will do so: Will, Lake, Marion, Moultrie, and - largest in the state by far - Cook.

"At the conclusion of our implementation, out of the 102, eight will still be on their existing independent solution," he says. "We anticipate the state will evaluate the success of the program and then make a determination on whether they will [require] the other eight to move over."

The court system did not want counties that already had set up systems to incur additional expenses so long as compatibility issues could be worked out, says Illinois Chief Justice Lloyd Karmeier. "We couldn't jettison what counties who were trying to be on the edge of technology already had done and say, 'You have to come up with a new system,'" he says. "Those systems can be used as long as they communicate with the Tyler system."

Thousands of cases already have been e-filed in the 59 counties up and running, Tardy says. "We are on target with the court's order of 2016," he says. "The court's order is the result of 10 or 12 years of work to bring some sort of centralized policy to this, and not be whipsawed."

The perils of procrastination

Trent Bush, a partner with Ward, Murray, Pace & Johnson in Sterling and a member of both the court's e-filing committee and the ISBA Committee on Legal Technology, encourages attorneys to try the system out before it becomes mandatory. He says a colleague at his firm recently became the first to e-file in Carroll County.

"We always tell practitioners to try to get up to speed before something becomes mandatory, so you won't be caught off-guard," he says. "Now, when everybody is learning it, is a great time to try it. Circuit clerks and attorneys are both working to learn it. You don't have the pressure of it being mandatory."

L. Drew Hickey, a partner at Bolen, Robinson and Ellis in Decatur who recently organized an e-filing training session in Macon County, says her county joined the system in November and 2,000 cases had been e-filed by March 31 - making it the statewide leader at that time.

"Our community here is pretty close-knit, and everybody's taken charge as far as realizing that e-filing is going to be mandatory," she says, echoing Bush's encouragement to others and adding an admonition. "Everybody puts everything off, and on December 31 they're going to have a bunch of stuff that needs to be filed, and then they can't do it [manually]. Just get people started on the process. Once you do it a couple of times, you're going to want to keep doing it."

The ISBA has been advocating for e-filing for many years, Bush says, and now those efforts are beginning to pay off. "It's obvious that paper is not the way of the future - electronic filing is the way of the future," he says. "Many other states are far ahead of us. But it's exciting how quickly the implementation is going now that the commitment was made to the process.…From a practitioner's standpoint, certainly from the [legal tech committee's and the broader] ISBA's perspective, this is something we have long wanted to see."

Among the 20 states in which Tyler already has rolled out systems, some such as Indiana and Texas have done it statewide, while others, like California and Georgia, have only required it in certain jurisdictions, Derrick says. "On a statewide scale, we see about 60-plus percent of attorneys practicing in multiple jurisdictions," he says. "Having a statewide system provides consistency and uniformity."

To further those aims, Tyler has partnered with circuit courts and clerks to create a system of standards for e-filing. "That standardization of configurations and case codes filers would see will create a standard, uniform experience," Derrick adds. "So that if you go file into Cook County, the experience should be the same as if you were filing in Peoria County."

'An extra seven hours to file'

Among the benefits to attorneys that Tyler foresees will be the convenience of being able to file 24-7, the efficiency and time saved in not having to travel to the courthouse and stand in a security line, and the cost savings of not having to drive and pay for parking - or pay a runner to deliver your filing.

Hickey notes that where the deadline for filing had been 4:30 p.m., when the courthouse closes, it now will be effectively extended to 11:59 p.m. on the due date. "That's not always a problem, but under deadline sometimes it is," she says of the late afternoon deadlines. "That gives you an extra seven or so hours to file each day."

The system also provides an electronic receipt that's easier to store and save, Hickey adds. "You get notices through e-mail," she says. "It just saves time and streamlines the process, especially for people who are driving a distance to the courthouse." She adds, "I've done it and it's just really easy. It's very simple to do."

For the court system, electronic filing will save the storage space and probably preserve case records better over time, Karmeier says. "Taking files down to a damp basement is not ideal," he says. "You don't know what you're going to get back in 10 years. Digital files will be more accessible, and it should ease the work of the clerks. They shouldn't have as many people coming into their offices to have them pull files."

Clerk's offices have been receiving technical assistance to help staff make the shift, Tardy says. "It's a recognition that the practice of law doesn't end at 4:30," he says. "It allows [attorneys] to do their work in a capable and confident manner from their office, or their home, or wherever they happen to be."

Judges will have all the case information ready and at their fingertips, Karmeier says. "If you're on a case and want to look at something, the electronic filing should help judges not have to juggle around paper files."

Lag time

But Hickey notes judges have told her there's still a lag time after cases are e-filed. "Sometimes they don't see it's on their screen, or it doesn't come up right away," she says. "One judge said attorneys should speak to the judge and bring a courtesy copy with them, and find out what the judge's preference is - if they want a physical copy or to look online."

The implementation has raised other concerns for some stakeholders. Hickey, for example, who does mostly civil and probate work, is unsure how guardian ad litem fees will be paid and how guardian ad litem notifications will be handled. "That will still make things cumbersome," she says.

And a clerk in Macon County told Hickey that pro se e-filing could be another sticking point. "They will have to have an e-mail address, which some of them don't," she says. "They can set one up on the free computers in the clerks' office.… They are starting to roll this out a few months early so that people get used to it. There will also be a help line straight to Tyler Technologies where the pro-se litigants can call."

Bush figures there will be some fear of change to get past, as he recalls there was when the federal Public Access to Court Electronic Records (PACER) system came online more than a decade ago. "If you talk to any federal practitioner, they would now be 100 percent in favor of it," he says.

"There will be some bumps in the road. But from what I've seen, Tyler Technologies [has been] down this road. They're very familiar with the issues. I'm fairly confident they'll roll this out smoothly."

Bush is concerned that attorneys will expect more from the system than it will provide at the outset, in part because some are familiar with the already well-developed PACER system, which among other features enables parties to a case to click on any document and have access to it in PDF format.

"They might think they're suddenly going to have access to everything" in the eFileIL system, Bush says. "That's not going to be the case. As it's going to be rolled out, it will simply be a vehicle to file with the court. You're not going to have access to documents in your case, or any other case, automatically. That's the direction we will ultimately go, but we're not there yet."

The system won't incorporate that feature in part because state level courts have different privacy concerns regarding matters like child custody cases. In federal court, "You don't have all that personal information that you find in the civil court system, with family law cases and probate cases," Bush says. "Finding that balance is going to be a challenge."

Karmeier hopes that if there are unanticipated problems with the e-filing system, they will be brought to his and the AOIC's attention so they can be addressed. "We want to make sure this is as usable a system as we expect it to be," he says. "They'll be able to file electronically from Nashville, Illinois [where he is based], to Rockford. It should make it easier for attorneys. It should make it easier for pro se litigants to go in and do the same things."

Electronic filing service providers

While Tyler Technologies has built the overall architecture for the system, the firm's contract with AOIC calls on it to subcontract to several companies, called "electronic filing service providers" (EFSPs), through which attorneys and firms will actually conduct business. Though Tyler will provide one EFSP, called Odyssey, others are offered by competing vendors.

That more diffuse model, rather than having a single point of contact, has worked well across the country, Derrick says. (For a look at how the EFSP model works in Texas, a Tyler-affiliated statewide e-filing system, visit http://www.efiletexas.gov/.)

"Those commercial electronic filing service providers are competing against each other for business," he says. "It creates that innovative, creative marketplace that allows them to continuously build in new features and functionality and improve the overall program." The competition also prompts the EFSPs to keep prices as affordable as possible for their value-added services, he adds. "It acts as a pretty cool model."

Thus far, five companies have gone through the certification process to become an EFSP in Illinois and seven more have declared their intention to do so, Derrick says. Each will have a web portal through which attorneys will file their documents. In addition to providing the basic functionality to package those documents and upload them into the centralized eFileIL system - service that will be free to lawyers - the subcontractors will provide a menu of other services for a fee, he says. (Odyssey, Tyler's EFSP, will offer only the free basic service.)

The for-fee services could range from converting documents into PDF format to bundling all court costs for filing into a single monthly invoice instead of attorneys or firms having to pay for each filing, Derrick says. "[The subcontractor approach] affords legal professionals the opportunity to go in, try them out and find the one that works for them, so they can use the system in the most efficient way possible." All certified vendors will be available in all jurisdictions, he adds.

Hickey thinks different types of attorneys and firms will use those services for different reasons. A large Chicago firm might be interested in a vendor's document storage and retention capabilities, she says, while others might be primarily focused on the monthly billing. If you use that option "you don't need to cut a check every time," she says. "You can then print out a page of what you've filed and track charges that way. It's helpful for accounting purposes."

Learning the system

The EFSPs, Tyler, and the AOIC have been holding community outreach and training opportunities around the state in addition to free webinars to get attorneys up to speed on e-filing, Derrick says. By mid-April, Tyler had performed 11 on-site presentations to bar associations and "other local legal communities, to educate them that this is happening, and this is what you need to do." Local bar associations can request those, he adds, and clerks' offices are also part of the outreach and have received presentations. The ISBA held a program in March and is offering others at the Annual Meeting and online (see sidebar).

"Community outreach for the e-filing community is extremely important," Derrick says. "We'll continue to do outreach to share with the community that this is coming. We've seen in every jurisdiction that no matter how much we do - flyers, handouts, stuffers to send out, letting people know - there's always going to be someone who isn't aware of the mandate. Our goal is to try to limit that audience, to make it as small as possible."

Tyler has 12 additional such presentations planned, which Derrick notes are listed - along with information about the courts on the system, those yet to come, and the active EFSPs - on the e-filing web portal, http://efile.illinoiscourts.gov. "It has lots of valuable information," he says. "It lists active courts on the system and then, as we're moving to the final phase, it will update the active courts page with the dates that circuit courts will go live."

Bush says the website breaks out the rollout for those who want the details. "It's phase-in time for e-filing," he says. "You can see which counties are scheduled to go online.… It contains not only the chart but also information about the education campaign to go out to county bar associations. It has the time frame for moving forward."

Once the EFSPs have created their Illinois-specific products, they will offer training tailored to their specific systems.

Clerks' offices will also be important for getting attorneys and others up to speed, Hickey believes. "One of the reasons Macon County has been so successful is because our circuit clerk's office helps tremendously," she says. "One clerk will sit down and physically walk you through the filing process.

"It's important in each county for clerks to know it's mandatory, encourage attorneys to do it and make it easy," she adds. "Tyler Technologies is great, but they don't have a local presence everywhere because they can't. Clerk's offices are those local people you know - they're friendly, and they can sit you down and walk you through it."

Derrick expected the county-level eFileIL system to be essentially finished by some time during the summer. "That should give us approximately six months to go through the refinement phase," he says. "We will spend time and effort working with the case management system and establish integration. The goal is to afford us enough time to do that, so that January 1 mandatory date is just another day in the office."

"Bottom line, this is mandatory, so you need to get it done," Hickey concludes. "You need to understand how to do it. Once you do understand it, it is a huge time saver, and you're going to want to keep doing it."

Ed Finkel is an Evanston-based freelance writer.
edfinkel@earthlink.net