The Brave New World of E-Filing
By Jim Calloway, Director, OBA Management Assistance Program

"We'll always have paper," was a comment one lawyer made to me a few years ago when I was discussing paperless office processes. Well, for lawyers who practice in the U.S. District Court for the Western District of Oklahoma, that statement is no longer true since the requirement of mandatory electronic filing (or e-filing,) which became effective on May 1, 2004.

The idea that the official court file will be in digital form rather than printed on paper in file folders still seems like a radical idea to some. But in the U.S. District Court for the Western District of Oklahoma, every court file opened since Oct. 14, 2003 is a purely digital file. In the Northern District of Oklahoma, imaging of pleadings into an electronic court file has been taking place for several years.

For many lawyers, this new requirement may mean that they decide to dust off a scanner that has been sitting around unused for a number of years and see if it still works. With few exceptions, if it didn't work well before, collecting dust is unlikely to have improved its performance. But before the office invests too many hours (or dollars) in an e-filing solution, let's outline the requirements and needs.

The requirements for e-filing are certainly not onerous.

INTERNET ACCESS

First of all, you need Internet access. While many of us have believed for some time that Internet access is essential to the effective practice of law, now there can be no argument for those who practice in mandatory e-filing courts. For those of you still accessing the Internet through slow dial-up connections, here is yet another reason to consider high speed access with a cable modem or DSL. The Internet experience is totally different with a high speed connection and lawyers who upgrade often ask themselves, "Why did I wait so long?"

Electronic filing is not done by sending the court clerk an e-mail with an attachment (except to initiate a new case). The courts have secure Web sites and you must register in advance to receive a user name and password. The court clerks have already dealt with situations where a lawyer walks in with a completed registration form and a need to e-file that day. The court clerk's staff will be accommodating, but that is not the recommended course of action.

SOFTWARE AND SERVICES

PDF (Portable Document Format) has been established as the exclusive document format for e-filing in the federal courts.

So the second element needed is a way to convert the documents to be e-filed into a PDF file. PDF has developed into the standard world-wide format for exchanging documents electronically. Law offices need to have the capability to generate PDF files both to e-file and to share documents electronically with clients.

Adobe popularized the PDF format. Most of us have the free Adobe Acrobat Reader on our computers, but Adobe Acrobat, used to create PDF files, is a product that must be purchased. A quick check online showed a price range from $195 to $307 for Adobe Acrobat 6.0 Standard and from $309 to $471 for Adobe Acrobat 6.0 Professional. But you are NOT required to purchase Adobe Acrobat to practice in e-filing courts. There are now many ways to produce PDF documents.

To create PDF documents from word processing documents that you have created, you need either software or a service. But to create PDF documents from documents you possess in hard copy only, (e.g. exhibits) you also need a scanner (or a service). We'll discuss scanners in a moment.

The WordPerfect users reading this article must be smiling at this point. The last several releases of WordPerfect have contained a "publish to PDF" feature. So if you have WordPerfect 9 or later, you simply complete your document, save it and then select File, Publish to PDF.

Before we examine software alternatives, we should take note of the service providers. If you have a pleading that must be filed tomorrow with 50 pages of attachments and no scanner in the office, it's probably not a good plan to purchase a new scanner, install it, set up the software, and attempt to scan and e-file for the first time under the time-pressure gun. While lawyers in firms which have cases in e-filing jurisdictions must be able to handle all of these chores in-house, there's no requirement that they have everything in place this week.

Converting a document to PDF when your in-house procedures are not ready could be as simple as:

There are numerous inexpensive PDF creation software programs.

To understand the differences between Adobe Acrobat and rest of the field, I asked David Masters, of the Masters Law Firm in Montrose, Colo. and author of the soon-to-be-published book, The Attorney's Guide to Adobe Acrobat. Some of you may remember David Masters from an OBA CLE-Law Office Management and Technology Section seminar he did last year, "Dollars and Sense."

"Most of the lower priced competitors are simple PDF print drivers. That is, they let you convert existing documents to PDF," David Masters responded. "A PDF writer (print driver) has been part of WordPerfect since version 9.0. So, print drivers have been available at lower than low cost for some time, people just didn't know about them. But the real answer to your question is that Acrobat provides a collection of powerful tools for working with PDF files. Bookmarks, links, sticky notes, text boxes, highlighting, comment summaries, document summaries, security, display mode - well, you get the idea. There are a bunch of powerful tools that you don't get with the bargain PDF generators."

"That said, there is at least one relatively inexpensive program that does many (but not all) of the things that Acrobat does. ActivePDF has introduced an application called Maestro that, for an introductory price of $25, allows you to add and subtract pages, add notes and comments, and many of the things that you can do with the full version of Acrobat. It is online at www.activepdf.com. Of course you can't do everything, but for the price it may be a good alternative," Masters concluded.

There's an important point here. So many law firms have called me seeking alternatives to the "expensive" Adobe Acrobat program. But if you save a couple of hundred dollars and are unable to include bookmarks or a hypertexted index in your 30-page brief with numerous exhibits, have you really done yourself and your client a favor? Regardless of the alternatives we will cover here, many firms will decide that they should both purchase Adobe Acrobat and invest in some professional training so that they can use it to its full potential.

Here's a non-exhaustive list of some PDF generators. I have not tested any of these and am told there are variances in the results, both in file size and quality. Quality issues generally are more significant with pictures and graphics than with black and white text only documents.

There are other available software solutions, including PaperPort 9, which we'll discuss in a moment.

THE LAW OFFICE SCANNER

As previously noted, most of your PDF documents to be e-filed will be created in-house and converted to PDF. But there will still be exhibits, transcripts and discovery material where there is only a hard copy available. Hence the e-filing office will need scanning capability. There is just as wide a range of choices for a law officer scanner as for PDF conversion software. A visit to the local computer store will confirm many choices are available, some priced at under $100. Unfortunately, the sub-$100 scanner will usually not be sufficient for most law offices.

What the law firm needs in a scanner depends on the size of the firm, the anticipated volume of use of the scanner and the training of the staff who will be operating it.

When purchasing a scanner, one should consider:

Frankly, the price may be the least of these concerns. I recognize that may not be a popular observation. But if one saves $100 on the purchase price of a scanner by getting the lower end model when the model costing more allows your staff to complete the same task five minutes more quickly each time, there is really no true long-term savings.

Many copiers now include scanning functions. If the office copier or network printer is due for replacement, one might make that decision first and purchase a multifunction copier that also meets all scanning needs. In fact the term "copier" is even going out of style for many of these high-end document management machines. Even the smaller firm in need of new copier should examine this market. A single machine for copying, printing and scanning has advantages of having to train only on one machine and only paying for one maintenance contract.

My recommendation is for the e-filing firm to consider two important features:

Let's examine a few representative products (without suggesting or implying any endorsement).

Medium size to large firms may consider investing in a sophisticated product like the HP Digital Sender 9100c Series. These devices are priced at about $3,000, although some Internet retailers show a lower list price and some units with additional features cost more.

The Digital Sender may seem a bit pricey to some, but its operation is very simple. It plugs directly into the network, with no associated computer workstation required. It serves as the office center for faxing, scanning or e-mailing documents. For the end user, it can be simplicity itself. Place the document in the device, key in a numerical code and it is faxed or e-mailed in PDF to the person designated by the code. Could there be a more simple PDF conversion than entering a number code, scanning and then returning to your desk to find an e-mail in your inbox with the document attached as a PDF file? (Thanks to OBA member and legal technology consultant Hank Ryan for bringing this device to my attention.) For more information on the HP Digital Sender go to www.tinyurl.com/r4wd.

Another group of scanners that bear mentioning is the Visioneer and Xerox scanners. Our OBA Member Benefits Committee worked with Visioneer to get a 20 percent discount on Visioneer scanners for OBA members. Now Visioneer has an arrangement with Xerox that extends the discount to some Xerox scanners.

Visioneer has focused on the legal marketplace and so many of their scanners are well-suited for lawyers. Now how can a scanner be well suited for lawyers? Well, it can be bundled with software useful to lawyers. If you go to www.visioneer.com/legal/okbar/ you will find, not only our OBA discount ordering code, but a selection of scanners that are bundled with software to accomplish my recommended goal of being able to scan directly to PDF, such as the Visioneer 9450 PDF, which comes with Adobe Acrobat 5.0 included. (You will recall the price range to buy a new copy of Abode 6.0 a few pages earlier in this article). With the OBA discount, the price for scanner and software is $399.99. But it only scans at eight pages per minute, slow by today's standards.

Visoneer's faster model is the Strobe XP 450 PDF. This little machine scans at 20 pages per minute, has a USB 2.0 connection and comes with ScanSoft's PaperPort Deluxe 9, which allows scanning directly to PDF at the touch of a single button. For converting scanned images to editable text, this unit also includes ScanSoft TextBridge Pro 9 OCR software. The OBA discount lowers the $699.99 price tag to $559.99.

(NOTE: ScanSoft's PaperPort Deluxe 9 [or Pro 9 Office] allows scanning to PDF, but the prior versions of PaperPort do not. PaperPort also helps one organize scanned images. You can read more about PaperPort at www.scansoft.com.)

The recently released Xerox DocuMate 250 Legal also qualifies for the OBA discount and comes with an impressive software bundle, including PaperPort Pro 9 Office, OmniPage Pro 12 for your OCR needs, Kofax' VirtualReScan and QuickScan. Its document feeder has a capacity of 50 pages and it scans at 22 pages per minute. The OBA discount lowers the list price of $799.99 to $639.99. See information on this scanner online at www.tinyurl.com/2kuur. One Oklahoma City firm purchased this machine and also purchased a service contract, which included priority overnight replacement unit shipping and the total was less than the list price with no discount.

Well, our space is exhausted this month and there's much more to tell.

But let me close with a suggested first checklist to get ready for e-filing:

Finally, all lawyers should understand that use of your user name and password on an e-filed pleading, combined with a graphic version of your signature or /s/ my signature, is deemed to constitute your signature on a pleading with all of the obligations that implies, including those under Rule 11. Therefore, lawyers need to take care with their password and always change it when a staff person who may have had access to it leaves the firm.

To learn more about e-filing you can attend the e-filing workshop at the OBA Solo and Small Firm Conference held June 24 - 26, attend one of the training classes offered by the federal courts or log into OBA-NET and read some of the threads on ECM/ECF. My prediction is that e-filing will prove quite popular among lawyers. It's already proving popular in the bankruptcy courts where lawyers no longer have to carry over (and pay to copy) a tall stack of papers to file a single case.