If South Florida’s courthouses all moved to Sesame Street, today’s story would be brought to you by the letter E.
As in email … e-courtesy … e-filing.
Just three weeks into a Florida Supreme Court-mandated conversion from paper to electronic filing for civil cases statewide, all indications are the transition is going smoothly. A week after that change, revised rules on e-service of pleadings and documents also took effect.
"As far as I know there haven’t been major glitches," said Senior Miami-Dade Circuit Judge Judy Kreeger, former chair of the Florida Courts Technology Commission, which monitors the judiciary’s high-tech projects and procedures.
Alexandra Rieman, who chairs The Florida Bar’s committee on rules of judicial administration, said, "I personally have not received complaints about any problem with e-filing."
That’s not to say there haven’t been cracks in the glass.
Some lawyers grouse that hearings they schedule online do not show up on a judge’s calendar; others complain of waiting weeks to obtain certified copies of a judgment they used to get the same day.
"As an active litigation firm, we are interacting with the clerk of court on an almost-daily basis. Telling clients that the clerk is backlogged doesn’t cut it when the matter is time-sensitive," said Alex Barthet, whose Barthet Firm in Miami specializes in business and construction disputes.
At least one attorney wants opposing counsel restrained from sending e-courtesy copies outside normal business hours.
"Simply to send email out at 1, 2, 3 in the morning is absurd," said Coral Gables solo practitioner J.B. Harris, who represents an unsuccessful Palmetto Bay Village Council candidate and a campaign worker in lawsuits against political rivals.
He accuses opposing attorney Ben Kuehne of "purposefully, rudely, willfully, wantonly, intentionally, recklessly and flagrantly" awakening him and interrupting his family life by making his personal digital assistant "ping" him around the clock.
"Although electronic service, or e-service, for state cases filed in Miami-Dade County and other jurisdictions in Florida is barely in its infancy, Kuehne has learned to use it as a weapon to harass, annoy and invade the privacy of Harris," he wrote in two motions seeking restraining orders.
Kuehne called Harris’ claim preposterous.
"It does not even pass the test of legitimacy," he said. "No lawyer has ever in my career complained about any aspect of my practice."
Harris cited 25 emails Kuehne sent after 6 p.m. and before 8 a.m. in his complaints and said he plans to amend them with more exhibits.
"On Feb. 19 alone between 12:04 a.m. and 1:03 a.m. Kuehne hit the ‘send’ button no fewer than seven times!!! ::::: PING PING PING PING PING PING PING :::::" Harris wrote.
Miami-Dade Circuit Judges Rosa Rodriguez and Diane Ward have not ruled on the requests.
On delayed judgments, Barthet said his firm has waited up to three weeks to get certified copies needed to proceed with execution.
"You’d think if the judge signed it electronically it would be immediately available to the clerk," he said.
He has also had trouble with e-calendars. In one case associate Peter Rowell scheduled a hearing online, received confirmation, appeared on the assigned day but was turned away — he wasn’t on the judge’s calendar. He had to return to his office, print the online docket as proof and return to the courthouse to talk his way into holding the hearing.
"We applaud any efforts to streamline processes and cut down on waste," Barthet said. "But we haven’t found these new filing processes to do that just yet."
Rieman and Kreeger aren’t blaming the judges.
"The judges are not authorized to e-file their judgments," said Rieman, who works in the Broward Circuit general counsel’s office. Rulings must be signed by hand, then forwarded to the court clerk.
"If there’s a delay in docketing in the clerk’s office I don’t know that you can attribute that to e-filing," Kreeger said.
A more likely reason is that clerks do not have redaction software to hide Social Security numbers and other sensitive data in filings and have to do it the old-fashioned way, with eyeballs. Miami-Dade Clerk Harvey Ruvin decided the software for electronic redaction is too expensive, Kreeger said.
A separate e-filing system, eDCA, went online Friday at the Fourth District Court of Appeal in West Palm Beach and is being installed at the Third District based in Miami. The district system requires separate registration by users. E-filing becomes mandatory at the Fourth DCA on May 1.
Various courts have been phasing in e-filing as experiments in the early stages of the transition, but all circuit and county criminal divisions face an Oct. 1 e-filing deadline for new cases.
In Palm Beach County, Clerk and Comptroller Sharon Bock said her office is moving in stages with circuit civil going online March 15, county civil the next week and family April 1.
"We had no idea on April 1 how many people would be e-filing," she said. "We’ve had no capacity problems, no IT problems."
Bock has a ringside seat to electronic developments as a board member of both the Florida Courts E-Filing Authority and the Florida Courts Technology Commission. She estimated about a third of Palm Beach County’s 6,000 lawyers file documents in court, and only 10 percent of those 2,000 litigators are e-filing.
Her office is current on docketing family and probate filings and "somewhat backlogged" on civil, said Cindy Guerra, Bock’s director of civil court services. "A lot of the calls we get are not complaints. They just don’t understand something," Guerra said.
A major contributor to the backlog is attorneys double-filing paper and electronic documents, taking clerks away from reviewing e-documents on their computer screens.
"If in fact attorneys choose to file electronically, they do not need to file paper," Bock said, looking forward to the day she will be permitted to refuse paper-toting attorneys.
She said the time stamp generated when a document is e-filed is the one that counts, not when the pleading shows up on the docket, and lawyers who are unable to sign on during peak hours can file an explanatory affidavit if needed to meet a deadline.
"I think that will give some comfort to attorneys," Bock said.
She encourages lawyers to register their bar numbers on the state’s e-filing portal now rather than later, in part to safeguard them. "I’m not going to file a lawsuit, but I registered my number for safe harbor," Bock said.
Jan Jacobowitz, a lecturer and director of the professional responsibility and ethics program at the University of Miami law school, said there’s a big push to incorporate civility and courtesy in the online process.
"The traditional rules need to be superimposed on the technological developments. Sometimes it’s a struggle," she said.
Harris said he did not seek restraining orders against Kuehne on a whim. His parents have health concerns, a child with chronic asthma is away at college, and another has a car and likes to stay out late. So he wants to keep his smart phone turned on.
"If my family needs to reach me, I want them to be able to reach me," he said.
The two campaign lawsuits filed March 18 have multiple defendants and five other defense lawyers.
"None of them are sending things in the middle of the night," Harris said. "I know what I’ve encountered [with Kuehne], and I’m sick of it."
Kuehne said e-filing provides people more time to do things and ends the need to rush to the courthouse by 5 p.m.
"It is absolutely disgraceful that a lawyer is unable to accommodate his practice into the new technology," he said.
Jacobowitz said Harris might need a different phone. Her teenage son recently taught her how to turn on "night mode," a feature she said allows calls from family members or other chosen parties while blocking everyone else.
"Some people are night owls. Sometimes I’ll get emails from a colleague at 3 in the morning, and I’ll say, really?" Jacobowitz said. "I’m not sure how you tell someone in a 24/7 society that you can’t work at night."
Harris’ motions remind Kreeger of similar disputes over an earlier technology shift.
"You can have a flashback to when lawyers first started using faxes and would turn them off at 5 o’clock," miffing opposing counsel who wanted to transmit documents later, she said.
Kreeger will take part in a panel discussion on "Practicing Law in an E-World" at Shook, Hardy & Bacon on Friday. James Feeney, of counsel to the Miami firm, will moderate the Dade County Bar Association event.
"None of us are experts on how-to, but we’re going to refer folks to resources. There’s no substitute to digging into the rules. You have to read that stuff," Feeney said.
Kreeger dismissed the Harris-Kuehne standoff as small stuff.
"It’s not a systemic problem. It’s just two lawyers who can’t talk to each other, but nobody picks up the phone anymore," she said.
Regardless of how the dispute is resolved, the judicial system’s march to the future is unstoppable, Bock said.
The federal Pacer electronic filing system began with limited points of access in 1988, and it switched to an online system in 2001. Florida courts have been moving slowly to e-filing for years with occasional nudging from the Legislature.
"If you look at where we were one year ago or two years ago, we are light-years ahead," Bock said. "We’re moving into paperless courts. We’re moving into a world of pure electronics.
"It’s going to be interesting."