19 January 2009

Slowly Going Paperless

My law firm, like almost every law firm, has a copier (actually two copiers, one with color that we use mostly for scanning documents and for small print and copy jobs, and another industrial sized one that copies in black and white).

We also have a stand alone fax, three laser printers, a few file cabinets for paper files, and arrangements for long term storage of closed files until they reach their destruction date. We used to have a postage meter, but discontinued the service a couple of years ago, instead using stamps and a postal scale, because the volume of mail weighing more than an ounce that we were sending didn't justify it any longer.

While we've talked about becoming a paperless office, like most law firms, we haven't decisively made a near 100% transition. Instead, paper reducing changes have crept up on us.


One of the big factors was the shift to mandatory e-filing in most of the state's trial courts of general jurisdiction.

When I started practicing law, we needed a small army of administrative staff to make a court filing. The original and a copy to be file stamped and returned in a self-addressed envelope was sent to the court, by mail in a manila envelope, on the deadline for filing. One copy was placed in our paper file, pinned down, tabbed and indexed. Another copy was mailed to every party in the case -- not infrequently several or even a dozen of them, and to the client. Each envelope typically included a form cover letter also copied to the file. A paralegal or legal secretary would sign a certificate of service reciting that a copy was sent to each person on the mailing list that appeared below that certificate, and that was a serious matter, because there would be no other independent record that the document was sent (one rarely used certified mail to deliver papers to other lawyers in a case).

This had to be completed for every court document in every case in the office in time to get to the post office or a mail box that picked up that day. This was non-trivial, because in Grand Junction, there was no nearby post office open until midnight.

With e-filing, the process is comparatively trivial. A single copy is printed and signed, which serves as both an "audit copy" for the e-filing system and as the file copy for the firm. The court and opposing counsel receive their copies on a website, and receive notice via e-mail that a new document has arrived for them to retrieve at their leisure. As long as you authorize that the document be sent prior to midnight via the computer, it is timely. There is no need to worry about getting anything to the post office by closing time. A certificate of service is completed (although often, now, it is signed by an attorney), but that is far less material now, because the e-filing system itself provides independent verification of the fact that the document was delivered and identifies who it was sent to, at which e-mail addresses. The client copy is typically sent under separate cover via an e-mail with a pdf attachment, and often with a brief statement of explanation to the client in the e-mail. The "sent mail" folder provides proof that the copy was sent to the client.

In some cases, we print a paper copy of each document received. But, in some cases that isn't necessary, and we simply save a pdf copy of the document received in the client's computer file (which, with regular backup, is probably less at risk of being lost or destroyed than the paper copy).

The main exceptions to the rule are original wills (which must be both physically and e-filed), and documents that must be personally served (like an initial summons and complaint or a subpoena). But, it isn't unusual for service to be delivered to an attorney contained prior to issuing a complaint or subpoena), for the document to be delivered electronically to that attorney, and for service of process to be waived, adding only a one or two page hard copy of a waiver of service to the paper file.

County courts (courts of limited jurisdiction) have not converted to e-filing, with a few exceptions, but those cases tend to have far thinner files that don't use much paper, because most motion practice is prohibited in county court, because the cases tend to have fewer parties, and because the cases tend to be simple ones (or, at any rate, litigated as simple ones, given the limited resources available to prosecute each one).

Scanned Documents In Discovery and Evidence

In most civil litigation, prior to trial there are one or more exchanges of large quantities of documents. The first batch is called one's "initial disclosures." The subsequent batches are called "discovery." In big cases, as much as 90% of litigation costs, and 99% of the paper in the case, consists of initial disclosures and discovery. Another important part of the discovery process involves "depositions" which are examinations of potential witnesses under oath before a court reporter, which produce lengthy transcripts.

In cases handled in a predominantly paper format, it isn't usual for a lawyer to have an entire book case or file cabinet of these discovery documents and transcripts in his or her office, or in a file room. Near due dates for producing these documents, it wouldn't be unusual to receive 30 pound boxes of documents in the mail, or via courier from opposing counsel.

There are still cases that proceed in this manner. But, now, in the U.S. District Court for the District of Colorado (i.e. federal court), documentary evidence must be presented in electronic form at trial, except in the rare instances when the core issue with regard to a document is its authenticity.

As a result, it isn't uncommon for law firms, my own included, to gear up for those cases by scanning all paper documents in the case into electronic form immediately. As a result, while you may have banker's boxes of your own client's original documents in your office somewhere, it is not usual for the document exchanges that take place in a case to involve an exchange of CDs full of pdf files. Court reporters also typically provide an electronic copy of a transcript (which is searchable) in addition to the paper copy. The CDs typically get filed away in a thin file folder, after they are copied into the computer file for the case.

Many firms have decided this is more efficient and use this approach in most of their cases.


When I started practice, a hard copy letter, on pre-printed stationary, signed and send via U.S. mail was the normal way you communicated with anyone, other than by telephone, and telephone communcations were themselves often followed by confirming hard copy letters. It was a rare day when I lawyer did not have several letters to mail.

All of our bills payable were paid by physical checks send in the mail to the person owed. All of our invoices went out in the same way. All of this, of course, was photocopied before it went out the door and placed in a correspondence file.

For a while, it wasn't uncommon, for urgent communications to take place with hard copies of these letters sent via both facsimile and mail. The mail copy would have the usual file copy placed in a correspondence file. The copy sent via facsimile would have the fax cover sheet and confirmation attached and placed in the client file, and another copy of the letter, the cover sheet and the confirmation sheet placed in a fax log binder.

All of the copying, mailing, and faxing was done by office staff, and all of the lawyer's work needed to be done in time for the office staff to finish the work and leave the office in time to go to the post office. While one person went to the post office, the remaining office staff would pin down the copies into files and update the indexes.

Now, we pay about half of our office's bills electronically, and a few are even invoiced electronically. Probably three-quarters or more of our bills are sent via e-mail, and a growing proportion are paid electronically with credit or debit cards.

As recently as three years ago, the fax seemed to hum incessantly with messages going out or in, all day long. Checking the fax machine was something that I did several times a day as a matter of routine, and almost every communication with an attached document went via fax. Six years ago, I used it even more. Now, I probably receive three or four faxes a week with any substance, plus a few mass faxes (usually with our permission from civic organizations), and send one or two a week.

Now, most of the postal mail we sent consists of bill payments and requests to have documents certified or recorded, and most of the mail we receive consists of exemplified documents and payments received from clients (as well as periodicals and bulk mail).

This doesn't mean that correspondence has ceased or the confirming communications to follow up on telephone conversations have ended. But, probably 90% of the communications that I used to make by mail or fax are now made via e-mail, often with attachments. Even paper intraoffice memos have been largely replaced by intraoffice e-mail.

E-mail on our system automatically copies itself when it is sent, and the sent copies are routinely filed in a folder for the client or matter in question, often as a last busywork task of the day chore. Most e-mails have computer backups, but are never printed out in a client file unless they are lengthy and substantive, it is necessary to do so in the discovery process, or a file is closed. The date of the communication and a signature block in lieu of a stationary header is often used.

Legal Research

When I started practice, almost every law office had hundreds of volumes of case reports, which provided full text copies of every appellate court case decided in the state. In New York, we had multiple versions of these reports so we could cite to cases correctly. Larger offices or those that practiced a lot of federal law, also had reporters for the federal courts, or at least a practice area service for cases of a particular type. We have encyclopedia like digests that were encyclopedia length, arranged in a subject matter outline, that listed every appellate case that had addressed a particular issue with a paragraph summary of the holding from a headnote in the case (annotating statutes in lawyer's offices still have these digests for each statutory section). Several unabridged dictationary sized volumes called Shepard's service, indexed every instance in which a case was cited by another case with codes to discern if it was still good law or had been overruled. Typically, it took reference to two or three volumes to determine if a case was still good law, if it was older, because supplements were printed to keep the service up to date until a new hard copy version was printed. Shepardizing cases could often take up hours a week of lowly research associates or paralegals. Office staff would often spend half an hour a day putting back several foot high stacks of books removed to look at cases for the day.

Lawyers still need to do legal research. Statutes, which are hard to read on a screen, because key points often continue for several pages in which indenting is key to understanding, and in which browsing adjacent sections is often helpful, still remain on our library shelves as do legal treatises and periodicals.

But, the digests, Shepard's service and case reporters, that used to take up a few hundred volumes on several bookshelves are almost completely gone. Now, almost all case law research is done via a password protected website (there are several) accessed over the Internet, that does various kinds of searches, and also automatically Shepardizes every case retreived.

The lawyer never leaves his or her desk and books never leave or are returned to their places. Cases that turn out to be unimportant after an initial skim are never printed. Tangential cases are downloaded into a client's computer file but not printed. Important cases often are downloaded and printed, and then placed in a research file as well as the client's computer file.

Bottom Line

The bottom line is that these developments have slowly moved us in the direction of a paperless office, almost despite ourselves.

Less incoming mail of substance comes in and goes out.

The fax machine isn't quite gathering dust in the corner, but is quite a lot more often. It is paid off and inexpensive to maintain, so we keep it. But, when it dies, we will probably replace it with a web based fax service, or use our all-in-one fax, scanner, printer for that purpose.

When our industrial sized copier (also paid off) dies, it will probably be replaced with an industrial sized scanner, which may or may not have a printer of its own.

Our file cabinets aren't as crowded as they used to be, and when we archive paper files at the end of the year, it takes fewer banker's boxes than it used to take. Only one of our printers gets much use, when before, all of them used to print documents for the better part of the day.

We make fewer and less urgent trips to the post office, and it takes less office staff to keep up with each lawyer (although certainly not zero). The staff we have needs to be more skilled than it did when I started practicing law.

We aren't paperless yet, but we are going there faster, and with less drama, than we expected.


Dave Barnes said...

use e-Fax for incoming
1. free
2. easy to convert fax to PDF
save fax machine for outgoing

Keith F said...

Yes! I really enjoy hearing about paperless law firm successes. Just shows that it really can happen. One more option is paperless service. Just as you e-file in court, you can e-serve documents (including correspondence) in your cases where courts don't have e-filing. And just like your e-filing cases, the documents in e-serve cases are maintained on a secure web site, in a searchable docket - and your files stay on-line and are accessible from any internet connection.

Tara Ann said...

Paperless is a great idea in general, but from a more practical standpoint, you can't rule out the antiquated paper system completely. I do not foresee the day when, at least not in smaller firms in rural places, we able to go 100% paperless. While most of our clients do have access and are at ease using electronic communications there are still more than a handful or two who are only accessible via the more traditional means. And then of course, there's always the day or couple of hours that the dreaded server crashes... in my experience as a legal assistant it's always been at that moment when a client or opposing counsel requires a copy from file or discovery.