e-Filing: The $72 Million Sinking Fund
If you have filed any pleading in a civil case in a county with a large
population this year, you may have been stung procedurally or you may
have skated. But even if you have skated, you've heard the complaints
about efiling under the new system:
- There is a lack of uniformity.
- The rules are confusing.
- Filings are refused for the looniest reasons.
- The time lag in response for acceptance or rejection is unacceptable.
- The time lag creates venue conflicts.
- The lack of predictability injures attorneys' reputations.
These and other failings of the new efiling system have numerous
short-term or "efficient" causes, but they all stem from two major
blunders: the system is mandatory and the system is improperly aimed at
electronic filing rather than electronic storage.
Electronic filing started in 2000 with Texas Online, a system
originally run by Bearing Point (an information management off-shoot of
KPMG) through an agreement with the Texas Department of Information
Resources (the "DIR"). Bearing Point declared bankruptcy in 2009 and
the contract was picked up by NIC-USA, a company that, like the current
provider, caters to government bureaucracies. The original Texas Online
system went live in Fort Bend in 2003 and incrementally expanded until
2012. In 2011 NIC notified DIR that it would not renew the contract in
Texas Online had its issues, but over the course of the intervening
time, it was molded into a reasonably adept portal for electronic court
filing. Much more importantly it facilitated or impelled some counties
to integrate the e-filing system with the significantly more important
function of digital storage and retrieval of court documents. For
example, Dallas County had almost fully migrated to full digital
storage and management by 2008 and by 2010, public access to full
document views was available online. Counties that did efiling
implemented a variety of document storage systems, some of which were
very robust and according to their curators superior to the current
system. Other counties are not that efficient; some charge a
subscription fee for "public access."
The Texas Online system worked reasonably well because it was voluntary
to the filer, flexible and adaptable to changing circumstances and grew
as the county systems that used it for filing, adapted it to the larger
and significantly more important goal of digital storage and had the
flexibility and developing expertise to seek the best document
management systems. It catered to the legitimate convenience of
litigants and the legal community for speed and efficiency in filing.
That which worked, worked well. That which didn't work could be
ignored, finessed or fixed. Most importantly, the point of the initial
system was not lost in some grandiosity. It was for convenience in
filing, not the reshaping of filing into a fragile, "mandatory" system.
That's all changed now. The Supreme Court's stated goal is to promote
"the efficient and uniform administration of justice. In the 21st
century, we no longer can rely on an 18th or 19th century vision for
our systems. E-filing will revolutionize our courts for the better."
This flowery language cannot mask the lack of sophisticated and
appropriately targeted thought which failed to make its way into the
new "efileTexas.gov" system. The loss of coherence and efficiency is
evident. E-filing will not revolutionize the courts, but digital
storage will and should make them more efficient and available. The
emphasis should always have been on digital storage and management. The
concentration on efiling -- that is, the methodologies of sending a
document to a clerk -- is obviously secondary and a blunder.
Moreover, the stated goal is internally contradictory because not all
litigants will be required to e-file even in the initial set of large
counties, thus sustaining what the Supreme Court claims is
The loss of focus on a legitimate purpose has had a predictably
bureaucratic outcome. With the loss of the DIR-NIC contract, the
Supreme Court sent the issue to its Office of Court Administration
instead of the experienced and at least technically competent DIR. The
OCA issued an RFP and an outfit named "Tyler Technologies, Inc." got
the bid. Tyler is another entity which caters to government
bureaucracies -- which Tyler calls by the euphemism "the public
sector." (Your biases about an entity that caters to a euphemism for
"bureaucracy" may or may not be confirmed by the lack of consistency,
completeness or coherence in the current implementation.) It's
trademarked document management system is apparently now mandated,
though at least one prominent District Clerk has clearly and publicly
labeled his former product as "superior."
Among the minor ironies of this mandate are: first, a late amendment to
the OCA-Tyler contract, by which Tyler indemnifies the courts as well
as the OCA (but not lawyers) against any copyright infringement which
may occur or have occurred. Second, note that the original name for the
new system had to be changed from "TexFile" to "efileTexas.gov" because
of a trademark infringement claim. Third, the apparently-now-abandoned
graphic logo for the original TexFile shows the State flaking off.
What is neither ironic or funny is the compensation scheme. Tyler gets
paid by the transaction, of course, a toll on litigation transactions,
though the contract by a late amendment caps the toll at just over
$72,000,000. Tyler, the OCA and now the Supreme Court brag that Tyler
has set up similar systems in 10 other states. However, one who worked
inside the process admits it is simply a poor adaptation of something
originally implemented in the midwest.
Think of what the $72,000,000 might have bought, had the Court not been so cavalier about using lawyers as beta testers.
Forms and Solutions
On April 13, 2012
your State Bar Board accepted and referred to the Supreme Court a
report called "Solutions
The task force preparing the report started work after and in response
to the Supreme Court's refusal of the Board's recommendation not to
implement its "uniform forms" initiative. Read the Solutions Report; it
is significantly broader in scope than the issue of the forms.
This issue started when the Access to
Justice Commission, an organization funded by your dues, proposed this
idea to the Supreme Court. In March 2011, the Supreme Court ordered a Task Force to, among other things, develop
forms and an implementation plan. While the Order says the Task
Force is supposed to "represent" lawyers, judges, clerks and
librarians, the "Stakeholders"
in the process are defined to be the "Texas Access to Justice
Commission, the Texas
Access to Justice Foundation, and legal services providers" -- not
lawyers. In July
2011 the Commission proposed a seven-point
plan having broad impact on the practice of law.
The Family Law Section, the Family Law Foundation and the GPSolo
Council (which presented its resolution
to the Board in January), along with numerous thoughtful bar groups and
individual lawyers have voiced
opposition to the forms initiative, activities of the Commission in
connection with the
Forms Project and the Commission's and Task Force's lack of
responsiveness to the Family
Law Section and other elements of the Bar and the recommendation for
a long, long overdue review of the Commission's budget by the Bar.
Concerning the last
issue, the budget of the Commission as funded by the State Bar tops