A decade of court arguments has revealed a vast zone of mystery for most judges. They don’t know how documents actually get filed in their courthouses.
That is because judges never have to worry about that part of the legal factory they work in, nor do lawyers, who send runners.
Into this land of mystery have come a group of state court clerks who are fighting press access by employing private law firms to spread a ground layer of fog.
But when the press says that we used to see the new cases in a wooden inbox as soon as they crossed the counter –- and that we can do exactly the same thing now with an e-inbox –- it raises some doubt.
A judge might ask, so how does all this work, exactly.
And that is exactly what a district court judge in Virginia explored with questions lobbed my way while under oath.
U.S. Judge Henry Coke Morgan Jr. is presiding. William Prince is a private lawyer defending two elected clerks in Virginia and I am in the witness box. Prince is asking the questions.
Q: Contemporaneous means the same day they're received for filing; is that correct?
A: That's correct.
Q: So if a complaint comes in at 4:30 in the afternoon and it's made available at 9:00 the following morning, is that contemporaneous?
Q: So it's your position that they have to make that available the day it's filed?
A: That's my position. They can and do make it available.
Q: Is the policy that CNS takes issue with the clerk denying access until after administrative processing occurs?
A: It's pushing us onto the terminals post-processing, post-scanning, and as a result, delaying access.
Q: So CNS's, the basis of CNS's complaint is that the clerks are not providing access until after processing; is that correct?
A: That was the policy we challenged.
THE COURT: Well, now the problem is when you use the term like processing, we don't know what you're talking about. We know that some activity has to take place before it's made available, like we were talking about the boxes. So the word processing is meaningless unless it's broken down into its elements.
BY MR. PRINCE:
Q: So what does CNS mean by processing?
A: I described the two-step process. There's intake and –
THE COURT: Which intake?
THE WITNESS: It comes across the counter. When the – if a lawyer walks up to the counter in Norfolk or Prince William or any court, or here in this court, and says, I'm filing this new complaint. Across the counter is a clerk who takes it in.
THE COURT: All right. Well –
THE WITNESS: That's intake.
THE COURT: Okay. Are you saying that you're entitled to see it as soon as the person hands it to the clerk?
THE WITNESS: No, sir. Intake is usually within a couple minutes. There's a line waiting, so there's pressure on the intake clerk, and he or she gets it in quick, gives a receipt, stamps it, and sends the filer back out the door so he or she can get, the clerk can get to the next person in line.
THE COURT: Well, they've got to have the check too, don't they?
THE WITNESS: Yeah, yeah. They bring a check and they get a receipt for the check. That's right. And if I can add, Your Honor, your comment about processing I totally agree with. Because it used to be pretty simple terms. There was intake and there was docketing. They were two separate things. And ‘processing’ is this broad, fungible word.
THE COURT: Are you claiming that what they should do as soon as they accept it, stamp it, issue a receipt and take the check, that you're entitled to see it at that point?
THE WITNESS: Yes, Your Honor. After it comes across the counter. That's where we've seen it in that box that I've been talking about.
Decision by decision, case by case, we are showing that in the grand transition to electronic filing, state courts are quite capable of setting up an e-inbox that functions just like the old wood box on the clerk’s counter — after intake and before whatever the clerk wants to call it: docketing, indexing, processing, creation or acceptance.
E-filing software now handles all the intake work. The software takes in the document, records the day of filing, checks for a signature, checks for fee payment and issues a receipt. It also allows the filer to segregate nonpublic filings.
The software then puts the new filing in the clerk’s queue for eventual acceptance, and it can at the same time put the new filings — filtered to exclude those that are non-public — into the e-inbox.
Those inboxes have been put in place in Los Angeles Superior, the biggest court in the nation, and other courts in California, including Fresno, Kern, Monterey and San Jose.
They demonstrate that delays in access are not the necessary corollary to technology in the courts. Not necessary at all.
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