Let’s Work Together to Embrace the Digital Age

COLUMN > Innovation in Law

BY JORDAN L. COUCH AND ARIEL LYNN COOK

I. An All Too Familiar Horror Story

It’s a little after 3 o’clock on a sunny Monday afternoon, and you’re plodding your way down the hill toward the soon-to-close filing window of your local courthouse. Seattle’s too-ephemeral August sunshine mocks you; sweat soaks the shoulder of your once-pressed dress shirt under the strap of your heavy briefcase. It’s weighed down by not two, but three thick paper copies of your very thorough filing, neatly sorted into manila envelopes. When you optimistically scheduled this task for the very same day the filing was due, you could have sworn that the task of printing a finished set of motions and declarations would be a quick hour’s work. Instead, it ate your entire day, not to mention a frantic sprint to the nearest office supply store when your abused printer sputtered and choked.

When you finally reach the filing window with minutes to spare, the clerk graciously accepts your copies with a look that suspiciously resembles pity. As he methodically begins to stamp each page with the heavy thud, you wait patiently, listening to your own heartbeat pounding in the court’s eerie, echoing hallway. When he finally hands your copies back to you, you set about the task of personally serving opposing counsel with your freshly stamped stack of warm paper. In the days that follow, you anxiously haunt your mailbox for some indication that your filing was rejected, and ultimately, as the days pass quietly, you allow yourself to begin to breathe in a sense of cool relief that you made it under the wire.

Two weeks later, your relief is extinguished when you open your mailbox to that most dreaded sight: your filing, christened now with fresh, blood-red “REJECTED” stamps maiming the orderly “RECEIVED” stamps you watched the clerk bestow weeks earlier. The attached admonition from the clerk reveals the reason, which is nothing more than a simple typo in the Certificate of Service. Your pleading was dead on arrival. You realize with panic and dread that the snail’s pace at which the rejection was carried to your mailbox has now effectively delayed your filing by almost two weeks—and counting. So you clear your schedule, again. You print, again. And you plod your way down the hill, briefcase oppressively tugging your shoulder down to the pavement, again.

When I (Ariel) recently bemoaned this experience to my friend (Jordan), who has been practicing for about a decade, surely it sounded like a ghost story remembered from a decade past. Instead, this misadventure took place only a few months ago–and I hadn’t even been practicing a year, let alone a decade. The story left us both wondering: Why haven’t we excised the ghosts of the past from the legal profession? Seriously, how is this still a thing?

II. Making Digital the Default

It’s 2025; digital has to be the default now. It’s faster, easier, more equitable, and better for the environment. There is absolutely no reason for the legal industry to remain one of the largest physical publishing industries in the world, and even less reason for lawyers to communicate through faxes and mail instead of email, in all but the most exceptional of circumstances. Now, we have made progress over the last decade. Even in the last five years we know lawyers who finally stopped having assistants print emails for them to read and dictate a response to. Jack Newton, the founder and CEO of Clio, is a fan of saying his biggest competition is not other practice management software, it’s a pen and a legal pad. That should not be the case.

Printed documents fix your work and your firm to a physical location. Digital is wherever you are, whenever is convenient for you. Of course, there is a learning curve, and adopting new tools and processes can be a challenge (it will never go as smoothly as the sales team told you). But the time to switch to digital was 10 years ago, so you might as well start now.

In our experience, many of the workers’ compensation and personal injury clients we work with are blue collar people. Many have no experience with computers. Some are concerned when they find out that our firm is mostly virtual. On rare occasions someone insists on an in-person meeting to talk about their case. But I’ve never had a client demand a second in-person meeting. Once they see how easy it is to communicate and conduct business virtually, they usually embrace this new way of doing things. Even our most tech-averse clients (some who still use flip phones and landlines) prefer to communicate with us by email, text, video chat, or phone. Digital is the default for the population we serve.

III. Why This Matters

It’s not just about making things easier, cheaper, faster, and more accessible for lawyers. All that is great, but many court cases don’t involve lawyers, and outdated processes and procedures are clogging the system and making things much more complicated than they need to be.

I (Jordan) recently got a parking ticket in a county that will remain nameless. For reasons that aren’t worth getting into, I wanted to dispute the ticket. There was no way to do it online. I had to mail the ticket back with a mark saying I wanted a mitigation hearing and then wait. Weeks later I got a letter in the mail telling me I had a court date. I was assigned a date and time to be at a physical location. The time and drive there would have cost me more than the ticket. What’s more, the date I was given was a date I would be at a work event across the country. Knowing what I know of courts, I reached out about appearing virtually and was told that, yes, that is an option and is what they prefer.

On the hearing day I stepped away from my work meetings and went to my hotel room in Boston to appear virtually. The court had some technical difficulties but the whole thing took about 15 minutes. The judge granted my mitigation request and told me I would get an email with payment instructions. Not a terrible experience until you realize that the whole ordeal could have been resolved with a short email and a one-sentence response. We know this because some courts have already adopted accepting deals and confirming decisions via email. We know this because it’s obvious. The ticket should have had an option to email the court (or complete a digital form) with your reasons for requesting mitigation and to get the judge’s decision via email as well. For an experienced lawyer, the process I went through was easy, but for someone with no legal experience, this would have been a nightmare or, more likely, not an option at all. We need to think about our systems in terms of access to justice for everyone, not just lawyers. Outdated, non-digital systems clog our courts and delay justice.

IV. How We Can Effect Change Easily

Some readers may be wondering why we are telling you this when it’s courts and judges who set the rules and lawyers who have to simply abide by them. While we have to follow court rules, there is plenty of room in the rules for lawyers to collaboratively embrace and promote digital options. We are talking about a problem, in part, of culture. As attorneys, we have the collective power to push this culture—and the courts—forward into the digital age.

But how do we change culture as individual attorneys? We can’t. But we can change culture through many individual acts of collaboration with our friends and colleagues. Take electronic service agreements, for example. “E-service” has become nearly ubiquitous in most practice areas, eliminating the antiquated paper waste and administrative overhead of snail-mailing pleadings to opposing counsel. Today, local rules may even mandate electronic service.¹1 E.g., King County’s LGR 30, Pierce County GR 30. But there was a time when electronic service was a newly emerging concept that courts were reluctant to permit. From 2003 to 2014, Washington courts only authorized electronic service by express agreement of the parties on a case-by-case basis.²2 https://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=343. That electronic service is the fixture that, today, is the product of over a decade of individual acts of cooperation between attorneys, who collectively signed so many “GR 30 Agreements” that electronic service became the norm, causing rulemakers to shift to catch up with our e-service culture. That culture didn’t come from the courts and the judges—lawyers made that culture, and the courts and judges followed our lead.

There is still a lot of work to be done. For example, the court rejected a 2016 proposed rule to delete the fax number requirement for digital signatures and strike the words “only by agreement” from the e-service clause.³3 https://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=541. And some courts, like the court that bestowed that vibrant red rejection stamp on my deficient papers via snail-mail, are so far behind that their practices resemble an era of legal practice reanimating the Clinton administration.

Our call-to-action here is something many attorneys do as individuals, but that can and should be done in concert with our colleagues. When you’re clicking “print,” scavenging for your stamps, or—God forbid—preparing to send a fax, ask yourself: Is there a way out of this, together? Can I work with the person on the other end of this transmission to do this digitally? For example, if attorneys for both parties ask a court or judge to accept filings via email, there’s a good chance the answer will be yes (we know from experience). And, seriously, stop sending faxes. In addition, when possible, stop sending correspondence via the mail; any concerns about using email can be solved with read receipts, good inbox hygiene practices, and a little bit of understanding and courtesy for and from your colleagues.

V. This Isn’t Hard; It’s Bare Minimum

The rules of ethics require us to be informed about advances in technology and their impact on the profession.⁴4 RPC 1.1(8). Being a cautious adopter is OK, but refusing to adopt is not. The ethics rules also require us to bill fairly.⁵5 RPC 1.5. Think back to the story that opened this article. Had Ariel been billing the client by the hour for that work, the bill would have been titanic compared to the bill for e-filing and e-service (which, Ariel can attest as a former paralegal, would take less than six minutes). That is not fair billing. It’s time for us as lawyers to change the culture, to embrace the digital age and push the courts to make our systems better for everyone. Next time you go to mail or fax a document or set an in-person hearing, deposition, or mediation, ask yourself: Is there another way? Is physicality important for this specific event, or is digital a viable option? You might find your life gets a lot easier, and in a few years the legal system might be better for everyone. 

NOTES    

1. E.g., King County’s LGR 30, Pierce County GR 30.

2. https://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=343. 

3. https://www.courts.wa.gov/court_rules/?fa=court_rules.proposedRuleDisplay&ruleId=541.

4. RPC 1.1(8).

5. RPC 1.5.