Cook County efiling: An incomplete review

Slow. Glacially slow. Maddeningly, dangerously slow.

That is so far my experience with the new Cook County efiling system. And, from what I've heard from colleagues and from what I've been seeing online, specifically from the Civil Practice and Procedure Section on ISBA Central, I am not alone.

But, first, the good news: Free filing online is once again free. It no longer costs $3.95. (I'm still waiting for word of the class action suit on this one. I've saved my receipts.)

I have heard from one colleague who said that she signed up with an EFSP (I believe that's the appropriate jumble of letters) that charges a fee for free filing. But what my colleague did was analogous to paying someone else to file her documents for her. There have always been services willing to take your money and wait in line to file your documents, right?

But this is no longer required.

I can access the virtual file counter through Odyssey File & Serve. In the past, I had efiled in DuPage or Will Counties using I2File -- but I2File is not yet accepting Cook County filings.

The new Cook County efiling system went into effect at the beginning of the month. At the end of that week I had to file a rather involved motion -- one with hundreds of pages of exhibits.

Just my luck.

But, as I'd learned from efiling in DuPage, even competently run systems will have limitations on file sizes for documents to be filed. So I knew I had to break this mammoth motion into more manageable parts. And I had also learned, from my DuPage experience, that it would be best to put cover pages -- with case caption -- on each subpart, this one labeled Exhibits A through J, for example, and that one Exhibits K through N.

Documents are efiled through Odyssey in "envelopes."

Who in the world came up with that name? The way it's used here conjures images of Greylord -- I got what you need in this envelope right here.

I think the Cook County efiling interface must have been designed by someone who saw a file-stamped pleading once. The file stamp winds up on the page in the place you'd expect. But the designer could not possibly have had any experience actually filing documents.

Here is the process by which one filed papers with the Clerk of the Circuit Court of Cook County back in the Old Days --

1. Create the document, and print it out. (I remember when we typed our documents, on typewriters, and we affixed bluebacks -- but let's stay with the more recent Old Days.)
2. Sign the document. (Under Ill.Sup.Ct. Rule 137(a), that simple act alone "constitutes a certificate by [the attorney] that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." I will come back to this.)
3. Make copies. (All parties entitled to service should receive a file-stamped copy.)
4. Prepare a Notice of Filing for the document -- and sign that -- and make the requisite number of copies.
5. Go the Daley Center.
6. Get in the appropriate line on the 6th or 8th floors thereof.
7. Wait. (The wait times sometimes seemed extraordinary in those days -- 15 minutes sometimes, even a half hour -- and for most of those years when I had occasion to wait in these lines, I didn't have my Twitter feed to consult while I waited. To cut down on the wait times, the Clerk's office set up self-serve stations for free filing, or sometimes opened up a separate 'no fee' line, and these were appreciated -- when they were available. They weren't always. Especially not recently, when the Clerk's office was trying to steer us into paying $3.95 a shot for 'free' filing.)
8. Eventually, when called to the counter, hand your papers to the clerk, who would stamp the original and put it aside, then stamp the copies and return them to you.
9. Send the file-stamped copies to opposing counsel. (That's where envelopes used to come into the picture.)

The current hang-up, even with free documents, is step 8. Instead of the few seconds it would take an experienced counter clerk to file-stamp a dozen copies (a speed I could never come close to imitating, even when I was using those self-serve machines on a regular basis), it now takes DAYS.

And there's no guarantee that the document will be "accepted."

Come back with me now to the early morning hours of July 6. I had finished the lengthy motion some hours before, but it took time to divide the motion and exhibits into appropriately-sized parts, and to put on cover sheets. And then I had to try and interface with Odyssey. That took some time, too.

It turns out my particular motion was too large for one "envelope." So I had to submit two. The motion and some of the exhibits went into one, and the rest of the exhibits, and the proof of service, went into the second. The envelopes were submitted at 3:17 and 3:19 a.m., according to email acknowledgements I received.

Now I knew better than to expect any response to this filing until business hours and, given the size of the document, I fully expected to wait into Friday afternoon for my file-stamped copies.

But Friday came and went, with no response.

Monday afternoon, though, I got the word: One envelope was accepted -- and one envelope was rejected.

The form email from Tyler Technologies had one box marked "Returned Reason" -- but all it said was "Missing Items Missing Items."

Another box was marked "Returned Comments." It stated:

Please put the attorney code in the cross reference section.

No rejection comment was provided. Please contact the court into which you are filing for more information.

You had better believe that I did figure out how and where to put my attorney ID number. I did it exactly the same way on the other "envelope" too. And that one was accepted.

The only difference between the two envelopes was that the motion itself was in one envelope, and that was the one rejected. Now I had chosen not to schedule this motion for hearing, mainly because it is already set for hearing. But I wondered, as I vainly perused both the Odyssey and Circuit Court Clerk websites looking for a number at which to contact the court whether that might have been the problem.

I eventually found a help number for Odyssey. I called Texas.

The lady with whom I spoke there was very nice. She seemed to think that I had to specify both my attorney code and the calendar number on which my case was pending in order to successfully file the motion. OK -- I thought -- new system, directions not very clear, but I'll go along with the program. The nice lady in Texas walked me through the process of copying the contents of the rejected "envelope" into a new envelope and how and where to specify the motion calendar in addition to my attorney code. The new envelope was cast into the wine-dark sea of Odyssey within 41 minutes of my receipt of the rejection email.

The rest of Monday afternoon passed without further word.

And all of Tuesday.

And Wednesday morning.

Late Wednesday afternoon I got a call from someone in the Clerk's office. She was reviewing the renewed filing. And she was about to reject it. I wasn't supposed to put the motion calendar in at all when I wasn't scheduling the motion for hearing. I went into my motorboat imitation, "But, but, but, but the nice lady in Texas told me to do that --"

"Well, yes," the Clerk's office employee said, "they've been telling people to do that. But it's wrong."

Let me interrupt this narrative here for an important statement:

I realize this is the Internet and people here seem incapable of making any rational distinctions. But I must try.

I've been working with people in the office of the Clerk of the Circuit Court of Cook County since Morgan Finley's time. The people with whom I've dealt over the years -- counter clerks, file clerks, courtroom clerks, the occasional supervisor -- have all been wonderful, polite, professional people. I think this new efiling system is an abomination -- but that in no way means that I think badly of those who have been, and continue to be, the front-line people in that office. These front-line employees in the Clerk's office are just as much victims of this abysmal system as us lawyers and taxpayers.

So in criticizing the efiling system, I am not heaping opprobrium on those who are stuck administering it. There is considerable blame to go around for this execrable excuse for an efiling system -- but it does not fall on the Clerk's front-line employees. Please try, even though this is the Internet, to grasp that distinction.

And now, back to the review.

Cutting to the chase, the Clerk's office employee rejected my filing a second time -- then stayed with me on the phone while I copied the contents of the rejected envelope into now a third envelope. She stayed with me while I recited each step I was taking to perfect my filing -- including getting that attorney code number in as directed (and as I'd done before). I hit send and still she waited with me until the new envelope showed up in her queue. She checked the new filing to make sure I had done all that I said I had done -- and I had -- and she told me that she was accepting the filing right then and there. Five days after this odyssey had begun.

But I was not home yet.

The system still had to "process" the acceptance.

Twenty-one and a half hours later I finally got my confirmation that the filing had been accepted.

"I don't think they anticipated the volume of filings that we have here," the one-time counter clerk told me while we were getting that third envelope in place. "I think they're a little overwhelmed."

Overwhelmed? Overwhelmed?

Well, of course they're overwhelmed, given the way the Supreme Court imposed this efiling regimen on us on a mere whim, at the drop of a hat, with no time to prepare....

Oh, wait, that's not what happened here at all, is it?

But the appalling lag times are only part of the problem with this efiling regimen.

Here is a redacted (and slightly marked-up) screen from Odyssey that was obtained after a pleading was accepted for filing.

Note the arrows I added pointing to three download links. One, under the heading "Stamped Documents," points to a link for "a collection of court filings for this filing." The other two, under a different heading ("Lead Document") point to one link for "Original File" and the other for "Court Copy."

Good Lord.

If these three links don't produce identical copies of the exact same document, namely, the document submitted for filing, we have bigger problems than lag time.

I am so far confident that this is not an issue. This is merely a dumb and dangerous screen arrangement. There should be one link, and one only, to the file-stamped copy of the document accepted. (Can you imagine how the Sovereign Citizens will run with this one?)

The Clerk's Office has too much power to 'accept' or 'reject' documents. In the Old Days, one handed over one's papers to the counter clerk, who stamped them and gave them back. There was no evaluation. About the only thing the clerks could screen for was whether the document required a fee. (I'd sometimes get questioned about my attorney ID number -- it's a little unusual -- but the clerk did not have the right to refuse to stamp my documents because he or she thought I'd gotten my ID number wrong. I'd just say 'look it up' -- and sometimes they did and sometimes they didn't. But they always filed my papers.)

Remember I mentioned that we'd get back to Sup.Ct. Rule 137(a). Here is where it comes back: If I file a document, under the rule, I shoulder the risk that a court may find my document wanting. If it is sufficiently inadequate---so defective---so improper---I may wind up being sanctioned.

Perhaps some heightened scrutiny at the 'virtual counter' is an inevitable consequence of the explosion in the numbers of pro se litigants. But the Clerk can not practice law and almost any evaluation of a proposed filing beyond whether a fee should be assessed for same moves dangerously close to having the Clerk -- or her front-line employees -- engaged in the practice of law.

On the basis of my recent experience, I don't think the Clerk's office is spending time weighing the merits of pleadings submitted; rather, the problem lies in the enormously underestimated volume of filings in the Cook County system and the "processing" time that inexplicably follows document acceptance. But this is an area where tremendous abuse can take place, especially where the rejection messages are at best... cryptic.

If there's no confidence that a filed pleading will be accepted, there will be other consequences as well.

Take the example of an attorney with a PI case where the statute of limitations is looming. In the Old Days, we could negotiate right up to the last day for filing and, if unsuccessful, throw a complaint together in a nonce, scurrying over to the Clerk's office at 4:25 p.m. (Some of the friendly front-line employees might not be as friendly on such an occasion -- but that's understandable, right?)

But now... if attorneys can't be sure that a pleading will be accepted... must we file a week in advance of the statute to protect ourselves? Two weeks? What of the complaint that was in a timely-submitted envelope that is rejected for reasons not immediately clear? The resubmitted envelope will bear a later date, the date on which it was resubmitted. Are we not guaranteeing judicial review of the filing process on some unlucky case?

And the case law that is out so far on this subject should terrify every Cook County practitioner. And that, gentle readers, is where we will pick up this discussion in our next installment.