Change Your Luck

I like to think of myself as a fairly positive-minded guy.  Still, just like everyone, some days I can identify with Joe Btfsplk (not a misspelling – if you don’t get the reference, Google it), the perpetually bad-luck victim with a black cloud over his head from the old comic strip “L’il Abner”.

  

 One of my favorite “Please don’t bother me; I’m busy being miserable and feeling sorry for myself” images comes from a circa 1970s commercial (Alka Seltzer Cold Relief, I think).  The ad starts out showing a hitchhiker, standing in a blizzard, sneezing and coughing.  Behind him in the snow the sign reads, “Welcome to Bangor, Maine”.  He holds a hitchhiker poster that says “Miami Beach”.  A white Corvette pulls up along side of him.  The beautiful, blonde driver rolls down the window and husks, in her best come-hither voice, “I’m only going as far as Fort Lauderdale.”  Whereupon the miserable hitchhiker, with a deep sigh that says, “Yeah, just my luck today!”, turns away from the ‘Vette and holds his sign back up to the passing cars.

Some days are just like that.

Well, sometimes I have to wonder.   Occasionally I still find court folks, including some judges, who claim that they would consider using electronic signature systems, “If only they were legal“.

Now, I will grant that there are still some anachronistic rules, orders and even obscure statutory references that can be at least arguably interpreted as preferring, if not requiring, paper documents and/or “wet” signatures.  But to not even start on the road to ECM and electronic signature simply because there may be some rules that retain old, outdated terms constitutes a completely disproportionate response.

Take, for example, the Federal Rules of Civil Procedure.  Federal courts have been using electronic documents, e-filing and e-signatures for decades now.  But consider the language of FRCP Rule 5 in the December, 2012 version of the Rules.[1]  FRCP 5 continues to use the term “paper” to mean “document”.  Here’s a sample:

 “Rule 5.  Serving and Filing Pleadings and Other Papers {emphasis added}

 (a) SERVICE: WHEN REQUIRED.

(1) In General.  Unless these rules provide otherwise, each of the following papers {emphasis added} must be served on each party:

…

 (2) How Filing Is Made – In General.  A paper {emphasis added} is filed by delivering it…”

One way to look at this language is to conclude that it absolutely bars the use of electronic documents and wave the ‘Vette away.

As everyone who has dealings with the federal courts knows, that’s not what happened.   The language wasn’t even changed. (Who knows how many other rules reference it.)  Instead, Subsection 5(a)(3) was added:

 (3) Electronic Filing, Signing, or Verification.  A court may, by local rule, allow papers {emphasis added} to be filed, signed, or verified by electronic means that are consistent with any technical standards established by the Judicial Conference of the United States.  A local rule may require electronic filing only if reasonable exceptions are allowed.  A paper filed electronically in compliance with a local rule is a written paper for purposes of these rules.

 In short, the rules completely changed the definition of paper to include “not paper”.  And, wisely, the particular implementation decisions are firmly placed outside the rule (“consistent with any technical standards established by the Judicial Conference”; meaning approved by the judges).  Such decisions can be made as needed, in an orderly fashion and amended or superseded as technology, court practice and other environmental factors change.

Yes, anachronisms still permeate laws, rules, processes, policies and procedures at many levels.  But that is no reason to moan and groan about being unable to move ahead.  Time to leave the black cloud behind, hop in the ‘Vette, and head for the sun.

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