E-filing systems are quicker and more efficient, but there is certainly still room for human error, as was seen in a recent case heard by the 5th U.S. Circuit Court of Appeals at New Orleans— a lawyer who had agreed to use e-filing later missed a motion for summary judgment that landed in his spam folder, leading to his failure to respond to the motion in time and, ultimately, to the court tossing the lawsuit. What does all this have to do with Texas lawyers? Rocky Dhir welcomes D. Todd Smith to talk through the functions of automated certificates of service in the state and how this technology could prevent circumstances similar to those that led to the recent 5th Circuit case.
D. Todd Smith is an attorney and civil appellate specialist at Butler Snow LLP.
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Intro: Welcome to the State Bar of Texas Podcast, your monthly source for conversations and curated content to improve your law practice with your host Rocky Dhir.
Rocky Dhir: Hi, and welcome to the State Bar of Texas Podcast. According to a story in the online ABA Journal, on August 9, 2021, the Federal Fifth Circuit Court of Appeals denied a plaintiff’s motion to set aside a summary judgment. The plaintiff’s lawyer claimed that he never received the defense’s motion for summary judgment because the motion was served via the trial court’s e-filing system, but it ended up in the attorney spam filter. In other words, the plaintiff’s attorney technically received the motion but never saw it or had reason to know that he needed to search for it. According to the article, the plaintiff’s lawyer is deciding his client’s next step in that case.
Now, let me speak for a moment just for myself and not on behalf of the State Bar, but that story bothered me. I understand the Fifth Circuit’s view as stated in the article that lawyers must take responsibility for managing their own email. I get that but as a practical matter, I’m also painfully aware of how technology can have its snafus. The ABA Journal article begs the question as to what happens when a lawyer receives a filing without really receiving it. I wanted to get to the bottom of this. I needed answers. I needed a hero and then I remembered that my friend, D. Todd Smith, from Austin is an appellate specialist at the Law Firm of Butler Snow where he specializes in helping trial lawyers preserve error and prepare for possible appellate review.
Now, Todd does this by helping trial lawyers with everything from strategy to briefing to jury charges to dispositive motions, but the great thing is I recall that Todd had released a video in 2020 in which he predicted that Texas courts would adopt automated certificates of service. Interesting I thought. Well as it turns out, Todd was correct and his thoughts and insights on automated certificates of service can be found in the October 2021 edition of the Texas Bar Journal. I wanted to find out from Todd what automated certificates of service mean for Texas lawyers and whether these certificates could prevent the situation we discussed just moments ago that found its way to the Fifth Circuit.
Now, full disclosure, I’ve actually known Todd for many years and not surprisingly, he graciously agreed to appear on our podcast and talk about automated certificates of service. Todd is our guest today. So Todd Smith, welcome to the podcast.
D. Todd Smith: Thank you Rocky. It’s great to be here with you today.
Rocky Dhir: Here’s a question for you. On a day-to-day basis, who cares about certificates of service? Nobody ever reads them. Why are they important?
D. Todd Smith: They’re important because that’s the mechanism by which the court knows or understands that a document was actually tendered to the other side. If you’re the lawyer filing the document, it’s only as good as the notice that the other side was provided. And before these automated certificates, we had to rely on all of us adhering to our word and the rules of Civil and Appellate Procedure to actually essentially attest that we provided a copy of the document filed to our opposing counsel. Believe it or not, even in today’s world, you see arguments between lawyers about whether something was actually served on them or when it was served.
One of the genesis of this automated certificate of service in part was to try and do away with those kinds of disputes and help drive efficiency, avoid wasting court’s time in having to resolve these kinds of disputes because really, what they’re designed to do is to present almost irrefutable evidence that a document was not only filed through our e-filing system, but was also provided to the counsel who are on the list to receive service through the form in which the Supreme Court has mandated that the service occur which is through email.
Rocky Dhir: So I’m thinking back because I’m old enough to remember the prehistoric days before automated certificates and back when we did everything by paper, the certificate of service would provide at least some prima facie proof that the document was served but it doesn’t necessarily mean that the document was received unless it’s by a certified mail or some other verifiable mechanism. So again, this does goes back to this question that’s been kind of haunting me about service versus actual receipt. Now, can you talk to us a little bit about what an automated certificate of service is and whether that really helps us solve the problem or the puzzle of service versus receipt.
D. Todd Smith: Let me address the second part of your question first just very briefly and say, I’m not sure that an automated certificate of service would have avoided the problem that we saw in the Fifth Circuit as covered by the ABA Journal article. I think ultimately, I’ll just go on record as saying the reason that problem was avoidable was there was some issue on the attorney’s side. It’s unfortunate the way that that came about but most law firms today have IT professionals who can whitelist certain email addresses for things to go through and not be filtered by spam. It might I suppose might be a little different in a solo or small firm setting but we’re all as lawyers on notice that we’re going to be receiving notices from courts and opposing parties and we’ve got to make sure that we’re getting those notices.
And so, unless there was some kind of issue with the spam filter, there’s some setting that changed or something like that, the burden, and it’s unfortunate how that came about and what the result was in this situation but the burden really falls upon the lawyer to make sure that all the settings are correct so that those notices are received and if there’s any doubt to follow up on that and make sure that the settings are appropriate. But as to what automated certificates of service are and we can debate that second point further Rocky but –.
Rocky Dhir: Yeah, I’m sure we can. I’m sure there’s a lot of debate on both sides then.
D. Todd Smith: Absolutely. And justifiably so I’ll say because that is a problem. That’s a problem that lawyers need to be aware of and need to know how to avoid and I’m happy to get into that further. But as far as what automated certificate of service are in Texas and this has been the case in the federal system for quite some time. We now have for 10 years or more now, we have mandatory e-filing in our state court system. And so, every document except for pro se litigants that’s being submitted to the court are supposed to be submitted through this online portal by which the document is processed, is put into the official court file which talking about the prehistoric days, it used to be literally a file or a red well type folder with flip sections and you would have all of the pleadings, every document in a court’s file. You would have every document. There was actually physically tendered to the court for filing and had the ink based stamp showing on page one that it had been filed what actually appear in that record as the official record of the court.
Rocky Dhir: I remember the midnight drop boxes, going to the going to the night drop boxes to make sure you got something filed on time. And I also remember stories of lawyers going early morning before the clerk of court went and collected documents from the night drop box and getting it there by 6:00 in the morning before the clerk got there. So those were adventures in babysitting.
D. Todd Smith: Yes, and similar stories about complying with the mailbox rule. When the mailbox rule was away of timely submitting court filings without a file stamp on the actual date, that rule I’m not sure it really practically exists anymore because of e-filing. But going back to what e-filing is and how it fits with automated certificates of service, every Texas lawyer who files court documents knows what e-filing is and by now knows how to use it. And now it’s rolled out in all counties in Texas and is being I think in the final stages of rolling it out to all courts in Texas. There’s almost no court safe for perhaps some justice of the peace courts and some rural counties that aren’t using e-filing as the mandatory mechanism for which lawyers are to submit their documents to the court.
So in light of that process, having now been in place for a decade, you start to think about, “All right, we’ve been able to leverage and gain some efficiency by having these documents submitted electronically. We’ve gotten rid of the paper and there’s some obvious benefits to that.” I mean, they’re not the storage concerns in the local court houses or even perhaps on the lawyer side too. A lot of lawyers are operating paperlessly or less paper these days but we had this system in place. It’s quite complex of e-filing but with the data all going in to this sort of centralized system and as I mentioned earlier, this works because Texas also mandated that every lawyer filing documents in the state have an email address for service of process.
Rocky Dhir: Sure.
D. Todd Smith: Or really, service of process is not all that accurate. It’s really more service of documents under Rule 21, the Texas Rules of Civil Procedure and 9.5 of the Rules of Appellate Procedure.
Rocky Dhir: Sure.
D. Todd Smith: And so, we’re all told, “All right, you can e-file these documents for requiring it. You have to have an email address on file at which you will receive service of documents. And so, what the court did at that stage was, “All right, you can get you can get service of a document either through the e-filing system. It’ll blast out a notice that a document’s been filed. You can download the document from there once the email comes into your system or in some circumstances that the rules do permit lawyers to serve each other electronically by directly sending an email.
So step number one is you got to have an email address at which you can receive e-filed documents. But the judicial committee for information technology which I sit on and which works closely with Tyler Technologies, the vendor that manages the e-filing system, started having conversations about what can we do to sort of take this to the next level. We’ve got a lot of opportunity here to remove the human error factor from the equation because even after e-filing came out and we got used to the idea of serving each other by email instead of by hand delivery in the old days or regular mail, certified mail or fax, there were still an issue with how can we apply this technology to something that really makes our jobs and our lives easier.
And I’m not exactly sure where the idea originated. I will credit like Hawthorne, the clerk of the Texas Supreme Court, for being the one affiliated with JC IT who really started developing this idea internally with our committee and in fostering it and encouraging others to get on board with it. And so, what Blake did is he worked with Tyler to develop a protocol by which, see if I can explain this simply without tripping over myself. Whenever a document is filed with the system through the e-filing system, there would be some kind of automated notification that the parties who are on the service list actually were sent the document to their designated email address. And then eventually, the idea is to show that it was not only received at that address which addresses part of the concern but the feature that’s yet to come but is in development right now that I think does have the potential to address the concern raised in the ABA article is there will be a link through the automated certificate of service that you’ll be able to see if someone actually opened the document.
So you can see the value in this because you will have disputes. Typically, it’s something on a short fuse, maybe something discovery related where one lawyer says, “I served so and so with this document” and the opposing counsel says, “No you didn’t” and then the judge is faced with having to resolve that dispute. There can be all kinds of issues in which that may arise and a lot at stake based on whether a document was actually served or not. If it was a not timely filed or served, there can be really harsh consequences to that sort of an outcome. And that’s part of what the automated certificates of service were designed to remedy.
Rocky Dhir: Let’s take a quick break because we need to hear from our sponsor and then when we come back, we’re going to pick up right where we left off. We’ll be back with Todd Smith in just a few seconds.
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Okay, we’re back. So Todd, we were talking about these automated certificates of service and kind of their genesis. So please tell us more about how this all came about so that we can kind of understand the history behind this.
D. Todd Smith: I do want to make sure that we talk about what they are because we kind of had a bit of a lead up to that and I think that is important for the lawyers who haven’t take a note of this yet to understand what automated certificates of service are.
Essentially, the e-filing system generates a usually one-page document that’s added to the PDF. Everything we do now in terms of filing and presenting documents in the legal industry and many, many others is through PDF even though the document might have been created in some other software such as WordPerfect.
Rocky Dhir: WordPerfect, I haven’t heard that.
D. Todd Smith: That’s a whole other conversation.
Rocky Dhir: That’s like so early 2000, okay.
D. Todd Smith: Well, believe it or not Rocky, I don’t want to go too far afield but there’s a contingent on Twitter that will stop using WordPerfect when you pry it from their cold dead hands.
Rocky Dhir: There’s a continued on Twitter for everything though so that’s understandable.
D. Todd Smith: Back just to really get out what an automated certificate of service is, when a document is e-filed and it’s sent to the court in PDF form, the file stamp copy that used to have the ink stamp on the front when it was in paper form is now done electronically.
Rocky Dhir: That is the very top of the page where you can see the date and time it was filed and so on and so forth.
D. Todd Smith: That’s right. It’s the same information you used to get in the paper hard copy but the document is then made available with the stamp on it showing all the relevant information, the day and time. When that document is returned to the filer with the file stamp, the automated certificate of service is a page that the system adds to the end of the document. Actually, if it were 40 pages going out, it’s 41 pages coming back, the automated certificate of service is added and it includes the list of case parties and their contacts so all the lawyers who have appeared and signed up for service in the case.
The document also shows the status of service at the time that the automated certificate of service is created. And the idea there is, because one little trick or tricky part of the e-filing system was, you might be counsel in a case and you might be on the service list but they’re I don’t want to say that there were any nefarious goings-on happening but there were instances in which someone who should have received service did not. And one issue with that is in some cases, one had to actually go in and physically uncheck names off of the service list to prevent someone who should receive further service from getting it.
Rocky Dhir: Right.
D. Todd Smith: Well here, if everything is set up right from the start, there’s no going in and unchecking. The entire service list will receive the notice of the document and also, you’ll be able to see from that automated certificate of service exactly who got it. In case there was someone who was left off for whatever reason, I’m sure the system is not perfect, but you can see exactly who got it. And as I was saying earlier in our conversation, another feature of this that’s being designed and it’s in process right now is the ability to click a link in the automated certificate of service and see not only who got it, but also whose office has opened and read the document.
So let’s go to that Fifth Circuit example, we’ll just use that as a hypothetical. If the person who said, and I have no reason to doubt them, that they didn’t receive the document and later found out that it went to their spam filter, using the Texas automated certificate of service as it is being developed now, the court or counsel could go to that automated certificate, click on a link and if someone else, not the lawyer in that case, but in that situation, if someone else had said, “Well, we didn’t get that document,” if there were going to be evidence to contradict that, that evidence would be potentially right there linked to the automated certificate of service where it might say, “Well does so and so at your lawfirm.com work for your firm?” Yes. Well according to the automated certificate of service the link available in it, that person not only received the document on x date, but it shows here that they opened it. So you can see the value in being able to contradict or at least verify claims like what came up in that Fifth Circuit case as to I didn’t get the document.
Rocky Dhir: What’s interesting to me when I hear you kind of explaining how these certificates work is, I wonder whether we really still need certificates of service in an electronic world. I mean, it sounds like this is a way of saying here’s who this document was sent to, here’s who got it and here’s who opened it.
So do we really need a formal thing now called the certificate of service if this is the new world that we’re entering into as lawyers?
D. Todd Smith: I would say, truly the answer is no.
Rocky Dhir: Okay.
D. Todd Smith: If this is implemented like it was designed to be, then it would eventually do away with the need for lawyers to attest to service to other parties.
Rocky Dhir: Right. Filing is the service at that point then?
D. Todd Smith: Filing would be the service. The key would be making sure everything is set up correctly on the front end. But once it is then the idea is you would no longer need to include a certificate of service. In fact, you could even say that that’s the case today but for the fact that we still have these rules that require certificates of service. And one reason why you could say that today aside from the rules is because just recently at the end of August, the Office of Court Administration through Tyler Technologies with the blessing of the Texas Supreme Court and the JC IT ruled these automated certificates out to every court in Texas that uses e-filing.
So for any lawyers who haven’t noticed these yet, take a look at the back of your documents because they should be there. You will see these on your documents now and you might wonder what they are. And that’s what this is all about is it’s this automated certificate of service that’s been rolled out behind the scenes. But what your question Rocky gets to a bigger issue which is, “Well, okay, what do we do now?” We have these rules 21a in the Texas Rules of Civil Procedure and TRAP 9.5 that still require certificates to service and you mentioned the Texas Bar Journal piece. I point out in that piece that really, until the rules officially change, the safest thing to do is to go ahead and include a certificate of service in your documents.
I think there are courts out there that aren’t really enforcing the certificate of service requirement. A year ago if you had filed a document in certain courts and have not included a certificate of service, your document probably would not have been accepted for e-filing because that’s one of the things that clerks would look for is, “Was it not only filed but properly served?” And my understanding now is there are some courts that are no longer using that as a reason to bounce a filing because everyone, all the clerks certainly know by now that this automated certificate is out there and is being handled completely behind the scenes with no human effort required which is one of the beauties of our electronic system as you can have these sorts of automations that I think as I said earlier that take the human element out that not only the propensity for human error, but also the human side of these disputes about whether someone actually received the document. So you can see the value in this. I mean, it’s an efficiency tool that we really ought to have. It was a great idea to develop. JC IT and Tyler Technologies did that and so here we have it. The question is what happens now?
Rocky Dhir: Well, it’s interesting too because you mentioned earlier about pro se litigants. And so, if you are an attorney who’s got a pro se litigant on the other side, then at that point presumably you still need an actual physical certificate of service because that pro se litigant may not necessarily haven’t — they may not be on the e-filing system in other words. And so, it sounds like what we have to be careful of and tell me what you think of this is that as lawyers, yes at some point, certificates of service may become antiquated as technology kind of gets us out of that realm, but then, we as lawyers still need to keep our skills up and need to remember about certificates when we’re dealing with pro se litigants. So there’s still some room there where in the future, lawyers could end up trapping themselves because they forgot about the certificate requirement because technology no longer required it. I don’t know what your reaction is to that.
D. Todd Smith: I think that’s going to be a rare case. A lot of pro se litigants are sophisticated enough to where they are using the e-filing system now.
Rocky Dhir: Interesting, okay.
D. Todd Smith: I’ve seen that happen in a few instances. But the other thing to keep in mind, you’re right. I suppose it’s possible that someone could glean over that requirement. I guess we should step back and acknowledge what that would be and this is probably the point at which I should mention that there is a potential rule change being discussed. That does factor in and does treat differently documents that are not served electronically. So if a document is served electronically then by definition, we don’t have this problem that you’re describing because they’re going to get these service through the automated certificate but it’s usually going to be pro se litigants who are not serving documents electronically.
The Supreme Court rules advisory committee had a subcommittee that was studying this issue in anticipation in part of this development of the automated certificate of service and has proposed a rule change that does require documents not served electronically to still be served using the traditional certificate of service and methods. And so, the idea is we don’t want to prejudice pro se litigants from receiving documents. We need to factor that in to how this is handled going forward but in the vast majority of cases where it’s lawyer to lawyer, at some point after a rule change officially, it’s going to be the rule in Texas that certificates of service are no longer required.
Rocky Dhir: I want to go back for a second to the scenario we talked about in the ABA Journal article because when we’re talking about automated certificates of service, I can’t help but kind of think back and you’d mentioned earlier that you didn’t think automated certificates would really have much bearing on the Fifth Circuit’s outcome in that particular case. And if I’m paraphrasing you correctly, it’s effectively that, “Yes, as lawyers, we do need to be aware of our spam filters and this is a known issue so you’ve got to make sure your settings are correct. On the other hand, these automated certificates will tell us whether opposing counsel has actually opened the document.”
The question I’m sort of juggling around in my head is whether the actual opening of the document is germane to the question because with certificates of service, the real issue is receipt not whether you actually opened and read the document. Is my understanding on that correct? I mean really, at the end of the day, the courts don’t care whether you read it, they care whether you received it. And if you received it, now you’re charged with abiding by the applicable deadlines for responding to that document.
D. Todd Smith: I think that’s accurate. And that’s why I don’t think that the automated certificate would have affected the outcome in the Fifth Circuit case because the Fifth Circuit system is a little different but it serves the same function. You have to have an email address and the duty to serve or to notify in the court’s case is discharged by sending the document whatever it is to that email address. And so, it does impose a little different duty on counsel to make sure that that those court websites or the e-filing platform and notice platform is the emails from those sites are being received in your system. And so, it is very unfortunate. I would hate to see a client lose rights because a deadline expired, because something got trapped in my spam folder.
Rocky Dhir: Absolutely.
D. Todd Smith: In my firm, I feel confident that that wouldn’t happen because we got IT professionals who are constantly watching what’s going on with our emails and if there’s an issue, they’re on it. I think potentially where this is a problem or a potential problem is in a solo or small firm setting, particularly the solos. And I don’t know what the answer is to that one frankly other than this may tie in somehow to this greater duty of technological competence that many, many states have adopted now and it sounds harsh to say but I just don’t know that we can claim ignorance about what’s coming into our email. But again, the point for me from my perspective on this is the bigger point of, “What if in that situation we were at the next stage of development of the automated certificate and you could tell whether that email had been opened or not and if there’s been an inaccurate claim say that we didn’t get the document then that issue could be resolved rather convincingly in the face of evidence from the automated certificate that the email had in fact not only been received but opened.” It does not solve the question in the Fifth Circuit but I don’t know. I don’t know what more there is to say about that other than lawyers especially those of you who don’t have dedicated IT professionals, check all your settings and it’s probably worth paying someone for a consult to make sure you’re getting everything you should be getting.
Rocky Dhir: And check your spam folder filter every day because you never know what’s in there, right? So check it even though you think it’s all junk. One kind of final question I wanted to ask you about automated certificates of service, have any other states adopted these or is Texas kind of at the forefront? And also, what about federal courts and automated certificates? Is there any talk there about adopting this approach?
D. Todd Smith: I don’t know about federal courts. It would make sense. I mean, they’d have all the same capabilities in the pacer system.
Rocky Dhir: Right.
D. Todd Smith: So I think the technology is clearly there. When you think about how difficult it is to change a rule in the state system and magnify that by the factor of 10, that’s probably how accurate it would be as far as how difficult it would be to change a rule in the federal system.
Rocky Dhir: Sure.
D. Todd Smith: I don’t have any direct ties to those who study the federal rules and make recommendations on changes, but I would think they might want to see how the state pilots work out and maybe ours would be an example that would help drive change there.
Rocky Dhir: Right, sure.
D. Todd Smith: The short answer being I don’t know about the federal system and really with other states, it’s kind of the same. I suspect we are, if not, the first one of the first to try this and part because we’re one of the first to mandate e-filing. It was a really bold move that the Supreme Court took when it said you will do this because in part, what happened was they rolled out e-filing kind of thinking that it would take care of itself, everybody will love it and just start using it and it didn’t happen.
Rocky Dhir: Right.
D. Todd Smith: And so, we had to be told you’re going to do this. This is the very positive I think by-product of that decision and so, I don’t really know what’s happening with other states but I think as usual Rocky, being Texans, we’re pioneers. We don’t want to wait around for other people to tell us that something is a good idea.
Rocky Dhir: And I take great pride in the fact that our state, our State Bar, our Supreme Court, I mean we’ve been at the forefront of so many things and if this is yet another one, I kind of, I admit to a bit of I don’t know if hubris is the right word but just kind of swelling of the chest and saying, “Okay, we really are a tremendous state when it comes to all this.” But unfortunately, I’m looking we are you’re out of time. Who would have thought certificates of service could have been a topic that we could talk about all day but here we are. So again, I want to thank you Todd Smith for joining us and for taking time out of your day to acquaint us with these new automated certificates of service. Thank you so much.
D. Todd Smith: Thanks for having me Rocky. I enjoyed visiting with you.
Rocky Dhir: Absolutely. And of course, I want to thank you for tuning in. I want to encourage you to stay safe and be well. Covid is still with us so please do take all necessary precautions to protect you and those around you. If you like what you heard today, please rate and review us in Apple Podcast, Google Podcast or your favorite podcast app. Until next time. Remember, life’s a journey folks. I’m Rocky Dhir signing off.
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