Article from the
Technology 2001 issue of the State Bar News. Reprinted with permission.
One of the ripple effects
of the events of September 11th was that many law firms and other businesses
lost their offices, either permanently or temporarily, forcing them to find
alternate ways to do business. Basic communication systems such as phone lines,
computer networks and Internet connections, that many take for granted and
depend upon heavily were interrupted or destroyed. The destruction served as a
terrible catalyst that forced many in the legal community to find alternate
methods of communication. Some reverted to traditional or non-technical means of
communication, and others turned to advanced technology, using advanced systems
or methods that they normally may have not considered for sometime.
The New York firm of
Willkie Farr & Gallagher is just one example of how advanced technology was
used to continue to serve the client. Through electronic filing, they were able
to commence a proceeding, despite the fact that courthouses were
closed.
Robert J. Kheel, a
senior partner in the Litigation Department, is the principal attorney working
on the matter that was filed. Henry J. Kennedy is the managing attorney and also
a member of OCA’s Attorney Advisory Committee on Electronic Case Filing. Both
agreed to share how this matter was handled.
State Bar News: What
type of client matter led you to consider electronic
filing?
A: Kheel: As with
everyone else in New York and the world, we were shocked at the events of
September 11. Although we are located in midtown Manhattan, my office had a
direct view of the World Trade Center. We witnessed the total destruction of
both towers. We decided to close the firm shortly after the attack, and remained
closed on Wednesday. We opened on Thursday although many of our attorneys and
staff members were unable to commute into Manhattan.
Our client was anxious
to have a third party accounting firm resolve, in accordance with a written
agreement, an accounting dispute relating to an earn out provision. Toward that
end, our client had instructed us to commence a proceeding to compel that
accounting as soon as possible. The tragic events of September 11 precluded us
from physically doing that as the courthouse was closed for that day and at the
time we were unsure when it would reopen. As the week progressed and the
courthouse remained closed, we internally discussed ways to serve our client and
commence the proceeding in the expeditious manner that the client desired. We
focused on using electronic case filing (“ECF”).
A: Kennedy: Willkie has
been involved with ECF for the past five years. Our involvement and interest has
not just been theoretical but practical and necessary. This firm has an
extensive bankruptcy practice. The Bankruptcy Court for the Southern District of
New York is a an ECF court — every court document must be filed electronically.
As such, we have filed thousands of documents using ECF. In addition, attorneys
and staff members including myself and William G. McKay, our managing clerk,
have served on court and bar association committees involved with ECF
issues.
Because I live on Staten Island, I was unable to commute to work the
entire week of the tragedy. By Thursday, September 13, it was apparent that the
Supreme Court, New York County would not open until at least the following week,
at the earliest.
We knew that the Office
of Court Administration’s computer for ECF was located in Albany and would
therefore, in all likelihood, not have been affected by the disaster.
Filing papers using the
ECF system requires that you have a computer, a modem and access to the
Internet. In addition, you must be able to convert your documents to what is
referred to as a portable document file or “PDF”. The software to do this is
inexpensive, costing less than $100. Also to use ECF, it is necessary to
register as an attorney and receive a password. Using your attorney password is
a representation that the papers you plan to file have been appropriately
signed. Because I was the only attorney at the firm with a password for the
state system it was necessary to have me sign the papers before they were
electronically filed. (Kheel is now registered and we are in the process of
registering other lawyers in the firm.) Since I could not get into the office,
we accomplished this by having the papers faxed to my home where they were
signed and returned by fax to the office. Because this was our first time using
the state ECF system, I wanted our Systems Manager, Loretta Seda who regularly
monitors our bankruptcy filings, to be responsible for this filing. Normally,
this would not have been a problem, but on this day she was at home, nursing a
swollen ankle caused by her walk home on September 11. Because she is equipped
with a computer system at home, we were able to e-mail our word processing
documents to her which she prepared and converted into PDF for filing. She was
able to complete the filing from her home in Manhattan.
Q: Would you encourage
others to utilize this technology? Why?
A: Kheel: Unlike other
attorneys in this firm who do bankruptcy work, this was my first exposure using
ECF. I highly recommend it. In addition to being able to commence a proceeding
and file papers in a court that was physically closed, we now have easier and
more complete access to the court file. A big plus to using ECF is that when my
adversary files papers, I will be notified by e-mail and will be able to view
the papers immediately. ECF filing is voluntary in New York, and, as such, each
case should be reviewed as to its suitability as an ECF case. However, my
experience with ECF has been positive and attorneys should consider using this
technology as an alternative to traditional filing. There is no doubt that
within a very short period, all court filings will be done using the Internet.
As practicing attorneys, we should become familiar with this
technology.
A: Kennedy: Our
experience using the state ECF was positive. Under normal circumstances, court
fees are paid by credit card. Because the New York County Clerk’s office’s
telephone system was down, it was impossible to process the credit card. As an
accommodation, the County Clerk allowed us to pay our filing fee by cash after
the County Clerk’s office reopened. The Supreme Court, New York County has been
very helpful in assisting us and answering our questions, especially Jeffrey
Carucci, a clerk in that court. Since very few cases have been filed, attorneys
considering using ECF (at this time it is limited to the Commercial Divisions in
New York and Monroe counties and Tax Certiorari matters in Westchester County)
should visit OCA’s e-filing site which includes a practice area. The Web address
is http://fbem.courts.state.ny.us/ef/mainframe.html.
Although we are a large firm, even small firms and solo practitioners can and
should avail themselves of this technology.
Copyright 2001, New York State Bar Association. Used with permission.