Denver Bar Association
January 2013
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Form ‘R Substance: When We Are Technocrats

by Dennis Walker

 

P


eople remind me that Albert Einstein declared that insanity "is doing the same thing over and over again and expecting different results." Electronic data storage gives us rapid access to vast information. Technology provides tremendous advantages. Frequent innovations amaze us. We give up programs and devices before we ever use 97 percent of the features. We express delight when we go to the next "level." We sneer at software purchased eight months ago as "obsolete."

My paralegal recently attended recommended training for the new electronic filing system, ICCES (Integrated Colorado Courts E-filing System). It is too early for us to make comments about the new system. Access to information that is channeled through filing and service via LexisNexis had already changed the way we deal with courts. When you reach the end of a trial and you gaze at your pile of exhibit books, visual aids, and illustrations, you are instructed to pack up everything and take it all home. You must upload exhibits for filing. Courts abhor the retention of paper.

Several years ago LexisNexis surprised me with fees for filing motions, notices, briefs, and responses. Docket and jury fees were not enough. With each filing, a court surcharge for electronic filing was imposed, along with a mark-up for the provider. At $13.92 per item, civil court costs have accumulated like never before. Ultimately, ICCES was pursued, at least in part because the state court system could gain that money.

The state system for filing developed a few ways to foster more flexibility than the federal. Being able to name a document with the title of "other," has saved hours of frustration in the "simple" act of filing. In the federal approach, you are not afforded such flexibility. Because of a document naming protocol, I have witnessed instances where appropriately named court documents would then take extended time to fit onto the prescribed list. Of course, as each season passes, the list of pre-approved names for documents has continued to grow. Many court clerks have helped overcome filing hang ups. I also heard a warning that if a document was not named properly, there was a significant risk the court would not review that matter.

For a while, state court "linking" of documents dominated electronic filing efforts, especially when linkage did not seem obvious. Before electronic filing, even a hastily sketched message on a paper with a case number would simply get "filed." Apprehension also grew with documents filed on Friday being "rejected" on Monday. As IT staff devoted attention to electronic filings, the prevalence of "accepted with edits" emerged. It felt like a chase down a rabbit hole to search for deciphering of such "edits." Sometimes, as it turns out, the editing serves merely to "rename" a document—a "motion to modify a case management order" might be called a "motion for extension of time." A "motion to reschedule trial" might be dubbed a "motion to amend/extend/modify." It’s impossible to tell if such changes matter.

"Accepted with edits" has become so commonplace that some people have given up looking for an explanation. Why don’t they just say what the "edits" are in the electronic notice?

A Notice from the Courts: ICCES Rollout for Denver District Court Moved to Jan. 7

 

Improvements in the speed of filing and access to information have been tremendous. The advantages of ICCES should outweigh difficulties.

Sometimes, a document-naming task becomes so frustrating that you long for the days when you handed a piece of paper to the clerk and you were instantly done with "filing." In moments devoted to submitting and re-submitting a paper, you may be driven to the sense that going down the same pathway over and over again, but getting different results, does make you crazy.

As we embark on ICCES, optimism should be greater than fears that the new system will make simple tasks harder.

Recently, I called to schedule a civil trial. A setting clerk said that we could not have a jury trial. I double-checked. Our complaint contained a clear jury demand at the end of the pleading, as Colorado Rule of Civil Procedure 38 has always allowed. We paid the full jury fee when we filed the complaint. The electronic record seemed to confirm that, but, to be safe, a receipt to show the clerk was now also requested. Before answers were filed, venue had been changed by stipulation. We were told by a clerk there was no jury fee and, more important, because the document title (as drafted) reflected "complaint" instead of "complaint & jury demand," there could be no jury.

The message given was that we cannot expect a pleading to be read; electronic naming would control. Of course, we have pressed on in our quest for a jury trial, insisting that titles do not rule. D

 

Dennis P. Walker is an attorney with Irwin & Boesen, PC. He may be reached at dwalker@coloradolawyers.com.

 


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