One of the major strategic decisions courts faced in the last decade was the classic “chicken or egg” dilemma: Would it be better to start with e-Filing, then expand to an Enterprise Content Management (ECM) system; or would it be better to implement ECM first and then adopt e-Filing?   Each approach had some very real attractions; but each also had some very scary unknowns.

The “e-Filing First” option had, among other things, the potential to be partially or wholly subsidized through filing and/or usage fees from attorneys, whose savings through e-filing would offset the costs.  Furthermore, in some areas there existed some very strong proponents in the legal community; particularly attorneys who were doing substantial federal practice and had experienced the advantages of e-filing.  Not insignificantly, e-filing could be implemented in such a way as to minimize some of the changes (often feared as painful and expensive) to internal operations.  And, implementations could be staged as quickly or slowly as desired to further minimize disruption.

Some of these perceived “advantages” were, ironically, the biggest drawbacks.  If e-filing alone were implemented, either electronically received documents would have to be re-rendered (printed) as paper documents (which would preserve existing paper-centric processes); or court files would have to be “mixed”, with some paper and some electronic documents.

The “ECM First” option (which, in the interest of full disclosure, I admit was what I had advocated) had the advantage of conceptual consistency: I always maintained that E-Filing was a subset, a part of, ECM.  Without an ECM framework, how do you manage the electronically received filings?  Whereas e-filing alone will not allow leveraging the advantages of eliminating paper, ECM will.  And, courts did not need to solve many of the significant questions surrounding the shift from paper to electronic documents, because the changes would be mostly internal to the court. 

But ECM First also had its drawbacks.  To make it self-funding, costs had to be assessed to the public (the federal Pacer model with charges for viewing court records); whereas e-filing could concentrate on the attorneys, who had something to gain themselves from the transition.  Furthermore, in many respects, ECM is “bigger”.  It directly impacts internal operations (which, of course, is actually the GOOD news; but it certainly gives courts something about which to be concerned).

While many courts did elect to start with e-filing and successfully expanded to ECM, many more started with ECM.  Perhaps one reason is that courts had already begun, for other reasons, to image their documents; and having done so, realized that without ECM, document imaging provided only a small fraction of the potential benefits from digitizing records.

Which brings us to the present.  More and more courts have made the move to ECM, realizing, in most cases, both greater savings and greater quality improvement than their most optimistic forecasts predicted.  As I talked to people at the recent Court Technology Conference in Long Beach, I kept getting pictures of courts with their internal operations now well on their way to Paper-on-Demand, at least internally.  And yet …  A line from Dark Side of the Moon kept running through my head:

The lunatics are  in the hall;

The lunatics are in the hall.

The paper holds their fallen faces to the floor,

And every day the Paperboy brings more.

For courts that have “cleaned up” the paper internally, only to see their doorstep graced by the paperboy with more paper every day (which they dutifully scan), isn’t it time to start thinking about e-filing?

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