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Everything Is Not Online -- Access To Electronic Court Documents In The US

Everything is not online, but there is a solution. Westlaw Court Express™ has been to every county in this country.

By William Barth, Thomson Reuters  
on

westlaw-court-expressIn particular, many state-level courts fall into this category. I wanted to shed a little light on what is happening and when we may see all the courts electronically available. Is the “holy grail” of access to all docket sheets with fully searchable documents located in one database something that we can expect in our lifetime?

First, let’s get right down to the fact that many of your attorneys believe that all dockets and even documents are readily available online — and free! You are constantly working to educate your requestors on the nuances of the US Court system. They wonder why a complaint and docket sheet from the US District Court in Chicago is sent right away for almost no cost while a docket sheet and complaint from a county in southern Illinois takes over a day and costs more? Even worse, why might that southern IL docket sheet be handwritten?

The good news for our industry, regardless of your view on federalism, is that the federal courts are now all online and work mostly in the same fashion. The PACER system has made their information available and companies like Westlaw, LexisNexis, and Bloomberg have massaged the data to make it more searchable and more useful for you.

However, the state courts are a completely different world. There is no standard, uniform process. Each state has its own rules and regulations, and in some states, each county has separate rules and regulations too. Counties within the same state are competing for funds, for power, and in some cases, the County Clerk is competing for re-election. In New York State, for example, while the New York County Clerk is appointed by a panel of appellate judges (a practice put in place to stop corruption in the days of Boss Tweed and Tammany Hall) in upstate New York, the County Clerk is an elected position. Many court clerks have their own agenda. How to make it easier for us to obtain docket and document access is not at the top of the list. In fact, sometimes counties that were once online go offline or otherwise limit coverage in system “upgrades.”  I am looking at you San Luis Obispo, CA, and Minnesota!

Westlaw and others like Lexis and Bloomberg have actually seen counties and states take away data as individual courts try to limit access to large aggregators. They want to be paid each time a file is accessed. These practices are getting us further away from our dream of being able to search all court cases in the country in just one place.

So what are we talking here? How many courts are there and how many are not online? The United States has 3,134 counties or county equivalents. Each one will have a trial court level for felonies, misdemeanors, and upper level civil cases. But often, they have many more courts. There may be a separate small claims court, traffic court, probate court, etc.  How this works varies from state to state, but if you counted all of the courts holding records, you are in the neighborhood of over 10,000 courts. At the end of the day, most requestors care mostly about the trial courts. Civil cases over $10,000 or felony and misdemeanor filings are what they are after. So how many of these courts are online? Unfortunately, that keeps changing (literally there are courts going offline), but it is a little over 2,241. If you want to look at cases ten years old (for a background check, for example), the number of available courts goes down to 1,781. And this is just to access a docket sheet. The documents are another matter entirely. The number of courts that provide access to underlying documents online is a far smaller number.

So, what is the answer to my question of whether all the courts will be online in one searchable database with dockets and documents in a fully searchable format in the next 15 years? It is… highly unlikely.

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Why is this important? Because the cost of missing a case or filing that is not online can be billions of dollars. Many of you have heard me speak of the Tom Petters case. Tom ran a $3.5 billion company in Minnesota from 2000 to 2008. He owned Sun Country Airlines, Polaroid, and the Petters Group.  He was a “pillar of the community,” getting loans for $100M at a time from hedge funds and backers. Most people were happy to do business with him. However, one hedge fund did a background check where they actually went to the courts where Tom had lived to check records that were not available online. They found many civil lawsuits for non-payment and a number of cases of bad check writing. The hedge fund subsequently did not invest. Six months later when authorities arrested Tom, their money was safe. It turned out his whole empire was a $3.5B Ponzi scheme — the largest in American history until Bernie Madoff came along to take that dubious distinction.

So how do you reconcile the challenges I outlined with your business needs? How do you avoid surprises when not all documents are available online? Your company needs a system that checks online courts and courts that are offline as well. One of the first things you should do when making contact with a retrieval company is to question whether they only do an online search or do they also have an additional service that goes to the courts that are not online. Yes, some companies will say they will go to the courts that are not online, but does that mean they are just going to hire a local person who only goes to court as a side job. One of the most rewarding things I get to say to clients is that Westlaw Court Express™ has been to every county in this country.

When speaking with the retrieval companies, do not be shy about asking what their personal experience has been with a particular court. The person you are speaking with on the phone might not have that information, but if the company is not giving you a lot of faith they will find out more information, it might be time to move onto someone else. The last item of note — and one that I continue to make sure my staff always does better than anyone else — is making sure their client is continually updated. We all know the request for any document is usually last minute and the attorney will want an update five minutes after requesting, but it is the job of the retrieval company to keep the attorney off your back and get the document as quickly as can be.

Everything is not online, but there is a solution.

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