Tuesday, February 24, 2015

Check Your Daily Filings - It is the Diligent Thing To Do

Crosby Stills and Nash sang Southern Cross, in which they intoned "we never failed to fail, it was the easiest thing to do." I would suggest that we remember the tune and change the words to "we never failed to check, it was the diligent thing to do." It makes sense to check the electronic filings in your cases. It makes sense to do it regularly, on a scheduled. The diligent attorney will take advantage of the fact that this safety net exists, and use it.

Nothing is perfect. That includes machines, software, and people. On the subject of computers, Doug Vargas is credited with saying "It's easy to cry 'bug' when the truth is that you've got a complex system and sometimes it takes a while to get all the components to co-exist peacefully." 

This describes e-filing, e-service, and all that we have become accustomed to with e-JCC. It is a miraculous tool of the Twenty-First Century. It is making our lives simpler, litigation more efficient and less expensive. But it is a complex process with multiple components and softwares. At its best the parts and pieces are all working together and it is nothing short of miraculous. But, sometimes it does not perform as designed. What performs perfectly 24/7/365? I know I don't.

The daily delivery of "snail mail" was no less miraculous when it came about. There was a time that the mail travelled across country, when it travelled at all, by riders on horseback. The U.S. Postal Service prides itself on its ability to deliver packages and papers. Though not an official motto, the following has long been associated with their dedication: "neither snow nor rain nor heat nor gloom of night stays these couriers from the swift completion of their appointed rounds."

A recent article from Oregon details how a postal worker's decisions led to some mail being misdirected. Essentially, this gentleman decided not to deliver the mail. He explained that he "just got lazy" and "failed to make his rounds on multiple occasions. He is now a former postal worker, and will spend a year on probation for his misfeasance. Last fall, another postal carrier failed to deliver some 40,000 pieces of mail.

In 2011, a letter was delivered in California. It had been mailed in Alabama 66 years before. According to the story, the Postal Service offered no explanation for the delay. In another instance, a letter "perhaps . . . stuck in sorting equipment," was delivered 81 years after it was sent. The U.S. Postal Service is not alone, the United Kingdom has had similar stories

The age of the Internet, email, and now e-filing and e-service is here. We are less likely to rely on the Postal Service in the Twenty-First Century. The Internet provides instantaneous delivery. It comes wherever we are, following us on our smart phones. We have been inculcated to the instant delivery and the privilege of making instant responses. What is a bit scary is that this amazing technology seems perfectly normal to a whole generation that does not remember before its existence. Most of us will live until a time when describing the pony express or even the Twentieth Century U.S. Postal Service will be met with incredulity.

Is the Internet perfect? Absolutely not. Can email fail? Absolutely. Can we explain explain why? Usually we can. Usually we get error messages when something is not delivered. That is what alerts us that we have used a bad address, or just typed it wrong. Is it perfect? Absolutely not. 

The OJCC recently made some programming changes. Essentially, one of the customers that uses the services of the DOAH wanted to communicate using encrypted emails. The usefulness of such protection is obvious. That process was installed in January, and some of our users' emails did not like it. Unfortunately, that is part of a learning process. Worse, when some users' emails did not like the change, the OJCC did not get the error messages to which we have all become accustomed. 

So, a very few emails we sent did not get through, and we got no notice of that from the digital world. We soon got word from some diligent users (how they figured it out is below). Our IT team "rolled back" the encryption change and the system settled back to normal. We learned from the process. 

In the days of the pony express and with the current U.S. Postal Service, there is no efficient way for the intended recipient to know something has been sent, except when it is received. Sure, the sender could make a phone call and say "I sent you a letter," in which case the recipient would be alert to keep a lookout. But absent such a practice, the recipient is dependent on delivery to know of sending. We all remember instances in which some important document was not received from the U.S. Mail. 

In the era of e-service, that is not the case. In the era of e-service, the appropriate recipient can learn of electronic filing even if the e-service never arrives for whatever reason. In fact, the appropriate recipient can learn of electronic filing even if the e-service is never sent by the electronic filer. 

When I was in practice, I had to complete forms to renew my malpractice insurance annually. One of the questions each year was whether I maintained a back-up calendaring/deadline system. They wanted me to have two systems in place to avoid missing deadlines. By certifying that I kept two calendars, I received a discount on my insurance. They had decided that a dual-calendar process was efficient and effective and they wanted to encourage me to use one. To this day, I keep information in two calendars. 

In the age of e-JCC, any e-filer can know when anything is filed in any case in which she or he has filed a notice of appearance. As an e-JCC e-filer, these are your "cases," which are displayed on your case list in e-JCC.

To see a listing of your cases, select "Case List" from the menu. To see a listing of all of the documents uploaded to your cases, select "Case Filings" from the menu. This will allow you to view all of the documents uploaded to your cases. That includes the documents filed by other attorneys and parties. That includes notices, orders or other documents uploaded by the assigned judge. 

After selecting "Case Filings" from the menu, you will see a search box to select the filing dates you wish to review. You make the choice. You can look at a single day or a series of days. This will provide you a list of everything that was uploaded to your cases . This includes all that were sent to you as counsel of record, and the will include all of the documents that should have been sent to you as counsel of record, even if they were not sent or delivered. The diligent attorney that noticed the non-delivery in January discovered it because s/he made a habit of checking the filings in her/his cases daily.

In the era of the Postal Service anything could happen once you dropped that envelope in the ubiquitous corner post box. It might get stuck in a sorter. It might be hoarded by the person paid to deliver it. It might inexplicably reappear for delivery some 81 years later. And, more terrifying, there was no way for you to know what you missed until it was too late. 

I remember when the pay phone it seemed there was a post box every few blocks and a pay phone in every parking lot. Good luck finding a pay phone or post box today. The physical mail delivery era has ended. Electronic document delivery is here and it is the future. Embrace it. 

But remember that e-mail can fail just as the physical mail paradigm could. There may be instances in which you do not receive the email announcing the filing of a document. Do not find yourself in the position of arguing your non-receipt to avoid some detriment to you or your client. Check your case filings each day. This is the process used by each of the Judges of Compensation Claims every day. Someone in each OJCC Division is viewing each Judge's Case Filings each day. 

Sure, you are going to get e-service. Sure, marking your appointments and deadlines on one calendar should cause you to avoid missing any. But, it makes sense to keep two calendars and to have a back up. And, it makes sense for someone in your office to check those daily filings. You could do it daily, weekly, or something in between. Set-up a schedule. Have them checked regularly. There was no mechanism for such certainty in the U.S. Postal era. Take full advantage of the fact that you live in the new age. 


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