E-filing is coming to superior courts

As technology changes, the form and filing of court documents changes. No more bluebacks. No more sealing wax. Those items are old news, but the new news: soon, no more bicycle or motorcycle messengers flying to court to make a filing deadline. E-filing is coming to superior courts, and is already present in most state Courts of Appeal. (The Supreme Court may be the last court in California to accept e-filings.) It will not be mandatory for self-represented litigants. Attorneys, however, will all but invariably be e-filing. The proposed changes will allow any superior court to provide for e-filing by local rule, but the e-filing will be subject to statewide rules and statutes.

The Judicial Council has sent out a public invitation to comment on proposed changes to California rules and statutes, many of which involve changes required by technological advances. It is easily findable at the court website www.courts.ca.gov, which every attorney should have bookmarked or put on a favorites list. Counsel and other interested parties should take advantage of this inclusionary, if not exactly democratic, process to weigh in.

This article will address two proposals. One involves some of these serious issues, and another one is just fun.

One question on which comment has been specifically solicited is: When should the deadline for e-filing be? The Judicial Council asked: "Should Code of Civil Procedure section 1010.6(a)(5) and (b)(3) provide that documents electronically filed and served up until midnight be deemed filed or served on that day? Or should 5 p.m. be the cutoff time for electronic filing and electronic service?"

Many courts and legal organizations commented on this question as the proposals wound their way to the Judicial Council. Those supporting the 5 p.m. "close of business" option identified a variety of sound reasons.

1. That would make for a consistent deadline for all filings regardless of the process by which they are received.

2. It would enhance equal access to justice and give a "level playing field" by not giving those with computer access more time to file a document than those who must file paper in person. This will often, though not always, mean that attorneys have an additional advantage over pro per litigants.

3. Given the courts' continuing severe staffing shortages, allowing filing until midnight would backlog items for processing by court staff the next business day and make it more difficult to process emergency requests in a timely manner.

4. A midnight deadline will encourage attorneys to require staff to stay later more often, and benefit litigants with the resources for such overtime.

On the other hand, those favoring a "file by midnight" option can point to its advantages.

1. The technology allows it, and no court staff need be present or be paid for the extended time.

2. Later filing gives attorneys and parties more time to draft their papers, which may mean more time to edit and polish them, to the benefit of the parties and the courts.

3. Courts close at different times - in some counties is as early as 1 or 2 p.m. each day. Los Angeles closes at 4:30, while the adjacent San Bernardino closes at 4:00. (This is why the current proposal does not state "close of business," but gives a standard time.)

4. Access to justice might be improved. The ability to file at any time on the day a document is due could benefit low wage workers and others whose work schedules do not allow them time during a "court business day." They will not have to take time off work to travel to and from the court, wait in line, and personally file those documents. A midnight deadline would allow greater access for clients who come in after the close of business, or to evening clinics, to be able to e-file their documents. This is particularly important for litigants who need to file answers in statutorily expedited unlawful detainer actions.

5. A midnight deadline would encourage e-filing.

6. Federal courts have had e-filing and a midnight deadline for years, with no reported controversy. All California Courts of Appeal that have adopted e-filing use a midnight deadline. Interestingly, Orange County, which has had a pilot superior court e-filing program and a midnight deadline, reported that only 21 percent of filings came in after 4 p.m., when its clerk's office closes.

A somewhat less weighty change is to call the first page of a document page 1. The Judicial Council proposes to amend rule 8.204(b)(7) to require that appellate briefs be consecutively paginated with Arabic numerals, with the cover page as page 1. This is consistent with the proposed new rule for pagination of e-filed documents, in the language added to proposed renumbered rule 8.74, and with the requirements of the local rules of the appellate courts. The proposal would make the PDF page numbers of a document match consistent with the page numbers shown on the document, which is not the case under the current system, where Roman numerals are used for the table of contents and table of authorities.

You might think that a change guaranteed to make it easier for the court to read your filing would be universally applauded by counsel, but not so. Some of that is from ingrained habit, and some from limitations in some word processing applications. One compromise for the sake of familiar prior practice: the page number may be omitted from the cover page. It is truly wonderful that it took electronics, computers and decades of Moore's Law to get the legal community to recognize that the first page of a document is page 1.

The deadline for comments on these and the other proposals is June 14. (5 p.m., not midnight - go figure.) If you have an opinion as to whether superior court e-filings should be possible until midnight or only earlier - or if you cannot bear the thought of an appellate brief that does not use small italicized Roman numerals for tables - now is your chance to make your voice heard.

Don Willenburg is a partner in Gordon & Rees' Oakland and San Francisco offices, and leader of the firm's Appellate Practice Group.