Copyright 2001-2003 Tybera Development Group, Inc.
E-Filing White Paper
eFiling Revolution, What’s Next?
1362 West 130 South
Orem, Utah 84058
801.226.2746
www.tybera.com
Abstract
Our purpose in writing this article is to share with users the lessons learned through the deployment of a statewide electronic filing system. We will attempt to identify how the system we will present differs from other systems. We will use the examples of attorneys filing to courts as our reference in this document.
eFiling REvolution, What's Next?
*An Introduction to Tybera
*eFiling Evolution
*Stage One
*Stage Two
*Stage Three
*Scanning
*Digital Signature Support
*Digital Lock Support
*Formatting Documents in XML
*eFiling Revolution, What’s Next?
Tybera was incorporated in March 2001, however, the eFlex technology has been under development for 2 ½ years. eFlex stands for electronic File exchange. The founders of Tybera have worked together for over 10 years in the WordPerfect technology under WordPerfect Corp., Novell Inc., and Corel Corp.
Our experience in electronic filing goes beyond the two years of Tybera. Dallas Powell, the president of Tybera, gained significant experience and understanding of electronic filing technical issues and user challenges while working as a Director of Development at Corel in the WordPerfect technology. He specialized in SGML and XML integration into WordPerfect and web applications. Because of this experience, he and his staff were invited to participate in several e-filing projects.
The projects we participated in included:
In addition to this experience and our current customers, we are actively participating in the OASIS LegalXML community. This organization is the key to creating standards for the courts that the Joint Technical Committee ‘JTC’ of Conference of State Court Administrators ‘COSCA’ and the National Center for State Courts ‘NCSC’ will adopt as recommended standards and then eventually as standards. Dallas Powell currently serves as the lead for the Sub-Committee on Layered Interoperability.
The key issue of layered interoperability deals with the concept of how to make an efiling initiative open, such that multiple vendors can interoperate together.
In order to help our customers and prospective customers understand what is happening in the world of efiling, a description of the evolution of efiling and what to look for during their evaluation may be important to those anticipating implementing an efiling solution.
In the earlier days of efiling some courts tried to implement their own solution. This solution meant that there must be some way to automate the processing of documents as they were received. This automation generally meant the process of updating a case management system (CMS) at the courts with the information embedded in the filings. In the early 1990s few courts had document management systems (DMS) to store the information. The court frequently established an e-mail server to facilitate the efiling process. Web servers were not yet providing application services. Web application services did not become popular until the late 1990’s.
In this model, filings would be emailed to a court. The documents would be printed out and the information would be uploaded to the CMS. In order to upload the data to the CMS automatically SGML information was utilized. The SGML information was difficult to create, and the email systems were fragile in nature. It was never clear if the document was received on a timely basis. Email systems were still fairly new and the reliability of messages being received was not adequate for a mission critical application.
Stage two came about in the mid-90s. Dedicated network circuits across company boundaries such as VPNs became possible but were expensive. However, vendors began to realize that the shared network provided a business opportunity. The business opportunity was realized with complex civil cases. Combining the shared networks with new document management tools to electronically manage and control large volumes of documentation became valuable. The indexing, text search, and retrieval would be beneficial to judges and attorneys managing the information of a case.
Many courts did not want to take on the task of managing the volumes of documentation electronically and vendors identified an opportunity to sell this service. There were several important factors that made this model a success with complex cases. These factors included:
Complex cases fit this category very well. Cases such as tobacco or asbestos cases are examples of such cases. In these cases, a DMS needs to manage the volumes of documents that are being received by the courts. The idea of a judge sorting through 10,000 pages and trying to find the exact information he needs is not feasible in a paper environment, but easily accomplished with an electronic DMS. Because complex cases were special, the case was usually initiated in paper, and then the participants would meet with the judge and agree on using a vendor to support the case electronically.
In the early systems the vendor would charge the court and each lawfirm $10,000 to install software and participate in the project. Over time, as the web became popular and could replace dedicated circuits, the concept of a transaction fee for each filing was introduced. A transaction model would alleviate the up front expenses and distribute the cost over the life of the case. In addition to reducing the up front fee, the transaction cost would more directly relate to the funding of required end user support.
In order to make this transaction process work, the court basically needs to appoint the vendor as an agent of the court. The vendor would control the entire system, such as docket time, fee collections, notification processing, and access control of the documents. Most of the time the judge and clerks would have free access and attorneys would have to pay for their use. The vendor established a networked service that later became a web service known as an Electronic Filing Service Provider (EFSP).
This behavior works well for complex cases but does not work well for general types of cases. Through evaluating the various types of filings a court receives, and combining that information with the business models that govern attorneys, it becomes apparent that the majority of cases filed cannot sustain significant transaction fees. Studies suggest that the cost to an attorney for filing documents to the court in paper form can be as low as pennies per filing. Some case types have been identified to cost about 30¢ per filing, similar to the cost of a postage stamp. High volume filers that support debt collection, eviction notices, and traffic ticket appeals are examples of civil cases that cannot sustain transaction fees associated with their electronic submission.
The same issues exist for criminal, juvenile, and other internal case filing types that courts experience, where transaction fees are difficult to add to these types of filings.
The bulk of filings the court experiences are cases where the attorney is on a tight budget and is filing a case where the fees are fixed, and small. Their ability to increase their fees to their customers for filing electronically is limited.
This does not mean that the vendor sponsored EFSP systems will prevent the submission of these types of cases, but the high transaction fees minimize any incentive the attorney has to use the system.
As part of stage two, the LegalXML community began to develop standards that would allow multiple EFSP vendors to participate with a court rather than allowing a court to be controlled by a single EFSP vendor. The LegalXML community created the standard that was adopted by the JTC of COSCA and the NCSC extended the basic EFSP model. The clerk review process was extended and called an Electronic Filing Manager (EFM), which would allow clerk review from multiple EFSP vendors.
The OASIS LegalXML Electronic Court Filing 1.1 (ECF 1.1) recommended standard did NOT identify whether the EFSP should collect fees, control docket time, store the official documents for the courts, or explain how the courts would manage the business issues involved.
The standard recommended that the courts remain in control of the electronic documents, and that the official document be an electronic document, not paper. The standard included several recommendations based on experience, but did not include a lot of requirements other than conformance to the LegalXML envelope definition.
The ECF 1.1 was submitted to the JTC as a recommendation rather than as a proposed standard because it had not been thoroughly tested. Some aspects that fell out of the recommended standard were Court Policy and CMS API. These aspects of the standard were not fully evaluated when the standard was first written, and some aspects of those portions have proven to be too difficult to implement in the existing definitions. The LegalXML committee continues to work on the standard to better understand these and other issues.
The standard as it now exists does not include interoperability controls that are needed to make it possible for multiple vendors to participate as defined in the above model. The standard does not include methods to manage the users, manage the messaging protocol between vendors and the court, manage the collection of fees, document integrity, or digital signatures. These many aspects are now being addressed in the LegalXML standards body as a natural progression of testing from the first recommended standard and moving the standard towards a more complete definition.
This model does not say that a transaction fee is required, but implies that by using an EFSP, some type of fee is required to support the EFSP. The challenge with this model as expressed earlier is that the bulk of court filings are case types that do not easily sustain a transaction fee, yet the transaction fee is the same mechanism needed to fund the vendor that supports this model.
Reviewing the recommended standard and evaluating the features shows there are four basic technology functions that make up an efiling solution:
Many courts have recognized the need to fund and maintain a CMS, which they control. Several courts are slowly moving towards purchasing a DMS. Some courts are waiting to implement the DMS until they implement scanning or electronic filing processes. All of these technical functions must exist for electronic filing to occur properly.
The idea of a vendor controlling the official documents of a court has not been well accepted in general. When specific cases, such as complex cases are involved, courts are sometimes willing to release control, but in general, it is the responsibility of the Clerk of the Court to manage and control the official documents whether in electronic or paper form. The Clerk is also responsible for docket time, and collection of court filing fees.
Up until now, few vendors have been willing to provide software to the courts that allow the court to control the efiling process. Most vendors have established web services external to the courts and use transaction fees to fund their systems. But as courts study more thoroughly the issues of electronic filing and the various types of cases that are received it is becoming more and more apparent that the court needs to control the efiling system just as they need to control the case management system and official document repository. When the court can control the efiling system they can also control the efiling fees for each case type. That is, some cases may justify an efiling fee but most do not.
The diagram below presents a concept that, as the volume of a given case type increases at the court, the amount the attorney can collect from their customer to pay for efiling fees, or convenience fees, gets smaller and smaller. The case types that make up the largest volume of cases filed to a court fall into the area where the amount of money to pay for efiling is limited. This means that the heaviest load the court experiences in case filings cannot afford to support transaction fees.
Some courts have reported that they have attorneys that file several hundred cases per day, and the cost to the attorney for filing each case drops down to pennies per filing. Some attorneys file 20-25 filings per day, and their cost per filing is the cost of a postage stamp. These attorneys will have a runner that they pay $150 per month to run the documents to the court, but when they are sending 50-100 documents each day, they are experiencing a very low cost per filing. These business issues are common among Traffic Appeals, Debt Collections, Eviction Notices, Divorces cases, and many other civil case types where the attorney advertises that they will file for a fixed fee. In addition, Criminal, Juvenile, and internal filings also experience difficulties supporting transaction fees as a convenience fee for electronically filing documents.
The challenge is that when a court chooses to implement an efiling solution based on a model where the EFSP or the EFM uses transaction fees to support the software, the complex cases work well. But the frequency of complex cases being filed is low and the cases that don’t support transaction fees very well represent the majority.
In the end, a transaction model that is used to pay a vendor for external processes ends up siphoning the only available funds away from the court. We refer to this as the ‘sweet spot’ of filing fees. If however, when the court takes control of the efiling system, they can capture the funding from the sweet spot and use it to help fund the case types where fees are small or unavailable.
Tybera introduced their extended model behavior to the LegalXML committee in June of 2002. This model extends the original vision of ECF 1.1 to where the court can control the entire efiling process.
This model places both the EFSP and the EFM functions within the court domain. This does not mean the court cannot outsource the management of the system, but the court collects any transaction fees to fund the system. With this model the court determines what transaction fees are charged according to its needs. The court can charge for complex civil cases and not charge for civil cases or the court may eliminate fees for criminal, juvenile and internal filing types. The court is empowered to make this decision.
However, the extensions do not stop just by changing where the EFSP and EFM are controlled. This model, as well as the ECF 1.1 model, only shows the flow of information and process automation going to the courts. This is a limited view of what needs to happen. It has been identified that the filers also need to automate processes as well. Instead of a one-way flow of information and process automation, a two-way flow and process automation needs to exist.
Integrated Justice relies on the flow of data and the ability to automate both directions. Integrated Justice is the process of the courts, police, corrections, prisons, sheriffs, attorney general, and many other state agencies interacting together. When the court takes control of the efiling process and manages which processes require efiling fees, a two-way automation can happen. Transaction fees can be eliminated for agencies that integrate to the courts. But the EFSP and EFM now have to be able to redirect the flow of information and reverse the process allowing court receipts, court orders, and other data to flow the other direction.
This model also integrates well with the scanning process. Scanning documents that come into the court can be integrated into the efiling process so that all documents become electronic. This also makes it possible for the court to provide workstations at the court to allow participants to scan and file documents electronically at the court.
This model gives the court control, but still allows external EFSP vendors to participate. With this control, the court can support Integrated Justice and internal court staff filings without transaction fees, and let attorneys that already have user accounts through an existing EFSP to submit their filings that way. Just as the integrated system can communicate to the courts, an external EFSP can communicate to the courts also.
No matter what model the court chooses to implement, Tybera is capable of helping the courts. Tybera can help the courts implement a system where the court controls the transaction fees to help pay for the license fees for installing both an EFSP and an EFM at the court.
There are additional technical advantages to a court when they use the Tybera eFlex technology:
The eFlex software supports the verification of X.509-based digital signatures against the signed documents. In addition, eFlex can interact with Online Certificate Status Protocol (OCSP) status verification processes for certificate status, and has integrated with Digital Signature Trust ‘Trust Exchange Server’ for certificate status verification.
eFlex allows users to store their keys on a trusted court server for digitally signing documents, or it allows them to load their private key at the time of signing documents.
Many courts are moving away from forcing filers to apply digital signatures to documents. However, many analysts associate the binding relationship of a digital signature and a document as a technically superior method of creating strong evidence of an individuals action and approval. The digital signature binds the relationship of a person’s signature with a document, and the signature can be validated against the document.
Because many organizations have struggled to implement and manage the complexities of Public Key Infrastructures (PKI) to support digital signatures, these organizations have displaced the requirement of digitally signing documents. The process of capturing a user name, verifying passwords, and storing that information, is sometimes being used to replace digital signature requirements. We refer to this as an ‘implied signature.’
This shift in the signature requirement suggests that when the user logs-in and provides their unique username and password, any action taken within that session is considered to be electronically approved or authorized. In a sense, an implied signature exists based on the log-in process.
The problem with this concept is that the information collected from this process, whether it is stored in a database log or a LegalXML ECF 1.1 envelope, is that the information is unprotected. The information can indeed be tampered with and it is also difficult to prove that it has not been tampered with.
Tybera has implemented the ‘digital lock’ as a middle ground to protect courts that accept the log-in/password process as evidence of approval or authorization. The digital lock is a process of applying a digital signature, not from an individual, but from the server that is controlling the log-in process and creating the electronic filing envelope.
By creating a digital signature from a server, the individual no longer needs to manage personal keys. The server digitally signs the LegalXML ECF 1.1 envelope locking the information of username and time of login. The process of locking all information in the envelope also automatically creates the strongest method of protecting document integrity and creates the ability to store the envelope as long term evidence of the event.
In addition to the document integrity and implied signature protection, the digital lock extends to protect the organization from unauthorized submissions. Tybera’s patent-pending process of security and authentication checks each LegalXML ECF 1.1 envelope for the server signature and compares the signature against the certificate stored at the receiving unit. This makes it possible for the courts to create an open environment where external organizations can create software that integrates to the court. Even though the process of filing is published to the public, unwanted submissions are prevented from passing through the system because the digital lock is tested to determine if an authorized external source digitally signed and submitted the filing. This open system provides a secure process for integrating multiple systems together and prevents unwanted filings from filtering in through the receiving process.
Tybera views the storage of electronic evidence as a critical aspect of efiling. Most vendors ignore the need to store the implied signature and do not capture and maintain the evidence in a format that is protected. The digital lock is a method that strengthens the evidence and position of the court and the filers. Each party has electronic evidence of the efiling event that is protected by a digital lock. If one party seeks to corrupt the evidence, modify a log file or change a database field entry, the electronic evidence created through the eFlex product can be utilized to determine if it was changed. Log files, databases, and other forms of information storage are easy to modify, but with strong evidence, a court can protect themselves against invalid changes by verification against the electronic evidence stored.
An efiling submission generally includes two types of data:
The data that is used to automate a process is best stored in XML format. Data that is read by someone to make a decision is generally created and stored in a word processing format, PDF format, or TIFF image from scanning a document.
One of the most difficult issues that efiling systems have struggled with over time is the method of collecting the data needed to automate a process. In the early efiling projects of the State of Utah and the U.S. Patent office, these projects required all documentation be submitted in SGML/XML format. No data would be submitted in a word processing format.
Requiring the user to create their data in XML format turned out to be more difficult than anticipated. Users were accustom to using their word processors to create data, and moving from using a word processor to using XML was not received well. The time it takes to create an XML document generally exceeds the time it takes to produce the same information in a word processor. The other problem was that word processors do not store data in a format that is easily utilized in process automation.
Because of the difficulties and increased time requirements to create information in XML, users refused to spend an increased amount of time to create their information. This rejection caused these early filing systems to fail.
The web eventually provided forms to capture data that could be translated into XML and then used to automate processes. This meant that some of the data would be captured for process automation and other data would remain in word processing format.
Although the web is a common method of capturing data for automation, it is not a common process for users. Users are not accustomed to logging on to a web site to do their work. The web is not an easy environment to work in. The web is a stateless machine, with no support for macros, merge fields, and other advanced features that help the users get their work done. In addition, most users do not have ready access to the web, so an additional burden is added when a web connection must exist to be productive.
Instead, users expect to go to their word processor, type the information, and then save their documents. This is referred to as ‘off-line preparation.’ Once the data is ready, a user can log on to the web and load their data.
Tybera recognized the value of off-line preparation and created methods of capturing automation data in word processing formats such as MS Word and WordPerfect. By creating pre-defined templates in word processing formats that can capture the automation data, users can use these standard word processors to create their data, use macros, merge features, and other advanced word processing features to get their work done. When the user is ready to load the data to the efiling system, they load the word processing templates that they have filled out, then load the documents that represent the information that must be read, and then send the data to the courts. eFlex extracts the data from the templates, translates the information into XML and maps the XML data into the LegalXML envelope for process automation.
Combining the technical advantages and the opportunity for the court to control the efiling system provides many strategic advantages to courts interested in implementing an efiling solution.
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