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Like so many events scheduled for the morning of Sept. 11, the Judicial Conference of the United States was canceled after the terrorist attacks on New York and Washington, D.C. That was the meeting at which Chief Justice William Rehnquist’s 27-member panel was due to vote on whether attorneys should be allowed to serve various legal documents by fax, e-mail or other electronic medium. Instead, the committee members were evacuated, and the vote was counted after ballots were sent from afar a few weeks later. Virtually all those ballots were cast via fax, according to a spokesman for the Administrative Office of the U.S. Courts. It is not too surprising, then, that the panel approved the use of electronic service in federal courts. Effective Dec. 1, the new rules allow pleadings, motions and briefs to be exchanged electronically in U.S. District and U.S. Bankruptcy courts, if parties consent. Initial service of process and all filings with the appeals courts still require paper records. Still, the new rules indicate that a sea change is about to occur within the federal court system, one that will likely be mirrored in state courts. The Administrative Office of the U.S. Courts characterized the rule change as a “step into the electronic age.” That age is likely to see a reduction in the use of paper as the primary source for legal records and an increase in the number of exchanges conducted by e-mail and on Web sites. In addition, the new rules lay the groundwork for putting all court records on the Internet, lawyers say. Although the U.S. District Court in New Jersey is still working on how to implement the new rules, the U.S. Bankruptcy Court in Trenton is further down the path. It already has an elaborate Web site allowing users to search its records by party name, attorney name or the old-fashioned way — docket number. Court Clerk James Waldron says he expects the court’s electronic filing system to go live in March or April of next year. Simon Kimmelman, a partner with Sterns & Weinroth in Trenton, chairman of the State Bar’s Bankruptcy Law Committee and a member of the lawyers’ advisory committee to the Bankruptcy Court, can hardly wait. “You will be able to access enormous amounts of information [online]. You’ll be able to get into cases, access all the pleadings,” he says. “As soon as an order is docketed, you’ll have it … the old system of getting a runner to run down to the courthouse before it closes is essentially eliminated.” Waldron would like to see the system extended to its logical conclusion. “What the change in the rule doesn’t allow for, which we’re hopeful will be changed at some point, is the issue of regular service of process, meaning the initial proceeding in any context … that still has to be done on paper.” Bankruptcy Court led the way because of the voluminous filings that often accompany cases, Waldron says. “It’s enormously more efficient and it reduces, obviously, the cost of paper and photocopying,” agrees Michael Boldt, counsel at Scarinci & Hollenbeck in Secaucus, N.J., and chairman of the State Bar’s Federal Practice and Procedure Committee. “We have clients who are very happy with electronic filing.” Recent events have bolstered support for e-filing. When the anthrax scare shut down mail delivery to Washington, the Department of Justice “asked that we fax everything,” Boldt says. Still, that’s just a coincidence. “This was in the works long before the anthrax scares. It just so happens that it may ameliorate some of the concerns that the anthrax scare created,” says Dick Carelli, a spokesman for the Administrative Office of the U.S. Courts. “This is an ongoing process,” he adds, noting that local courts may follow suit. “Often states base their procedural rules on federal rules, but they are free not to do so.” WHEN IS SERVICE COMPLETE? Nonetheless, electronic filing has raised some doubts and questions. For instance, when is an electronic document considered served? The Administrative Office of the U.S. Courts says “electronic service is complete on transmission, although it is not effective if the person serving the document learns that the attempted service did not reach the person to be served.” In other words, hitting the “send” button on an e-mail system counts as completion, even if the sender doesn’t know what happened to the e-mail after that. Attorneys say they would likely go a little further in securing service by sending e-mails that produce a “receipt” message that gets sent back to the sender when they are opened. “I think Microsoft Outlook, for example, has that capability,” says Boldt. Of course, another solution would be to pick up the telephone and ask. While attorneys manage the transition from Dickensian stacks of paper to computerized offices, they might find themselves in a gray area, keeping simultaneous records in both electronic and paper form. That duplication produces a potential for error, believes Richard Shapiro, president of the Association of the Federal Bar of the State of New Jersey and a partner at Hellring Lindeman Goldstein & Siegal in Newark. “If it may be on paper or in the computer, that’s dangerous to some extent.” That danger was recognized on Dec. 3 by the state Appellate Division. In Martinelli v. Farm-Rite Inc., A-299-00T5, an attorney missed a 30-day trial de novo deadline because of a computer error and argued it was an “extraordinary circumstance” that should extend the deadline. Judge Michael Winkelstein wrote, “A computer malfunction is not sufficient justification for late submission of documents to the court, whether required by statute, court rule or court order. One does not need to be an expert to recognize that computers do not always work.” The new rules also are altering the livelihood of process servers and document-retrieval companies whose profits depend on the inaccessibility of paper records and the inconvenience of getting them from A to B. “It has a rather dramatic impact,” says Jerry Krivitzky, chairman and CEO of New Jersey Lawyers Service, a document-delivery company. “It’s something that we’ve been anticipating.” Hence the development of eLaw.com, a Web site that allows attorneys to manage entire cases online. Krivitzky believes his staff will be in business for some time to come, even if only because of the persistently Luddite nature of some of his customers. In New Jersey, he claims, only half the attorneys have their own computer networks, and a third of the attorneys accessing the Internet do so through America Online. Furthermore, the electronic filing experiment has had patchy results elsewhere, he claims. “New York’s had it for 14 months. Do you know how many cases have been filed in that 14 months?” Krivitzky asks. The answer: “Five!” It’s true. Five cases from three counties in the past 14 months, according to Noel Adler, chief information officer of the New York Unified Court System, the administrative arm of that state’s local courts. “All the attorneys and judges and staff are wildly enthusiastic, but we haven’t had many step up to the plate,” he says. An early stumbling block was that attorneys had to appear in person at the courthouse with photo identification to receive a password for the system. It’s hard to imagine everyone at Skadden, Arps, Slate, Meagher & Flom standing in line with driver’s licenses at 60 Center St., and, of course, that didn’t happen. That rule has since been relaxed in favor of an affidavit that can be mailed, Adler says. Acceptance is merely a question of changing the culture, Adler believes. “Lawyers are the last to embrace technology, and this is something that is the wave of the future.” In addition, the new system required no additional expenditure from the court technology budget. But there’s one other more tangible factor holding back lawyers from electronic filing. When an attorney bills a client for thousands of dollars, and the client wants to know what the bill is for, “they like to be able to point to a really large stack of paper,” says Krivitzky.

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