RE: [legalxml-courtfiling] Contribution from OXCI project

[jkeane <jik@jkeane.com>]

I was reviewing this thread for one purpose and notice this discussion about
service of process. I've made note on other threads about the confusion of
terms and felt impelled to make a similar clarification on this thread,
particularly for our technical brethren with limited legal experience.

Sending a copy of a pleading to another lawyer or a pro se is a Certificate
of Service. This should not be confused with Service of Process of a
Complaint and Summons which may require filing a "Return of Service."

 Service of Process is best addressed in a separate set of steps in the
workflow. "Service of Process" occurs for filing an initial pleading,
setting up a case for the first time, getting a case number and delivering
or "serving" the complaint on the party (by mail, if allowed, or personal
delivery by a sheriff or other process server.)

Once the case has started there is a much simpler pattern for filing
responsive pleadings, which typically are sent to counsel and pro se
parties. In Maryland, where I practiced law, the attorney signs a separate
statement which affirms he/she has sent a copy of the pleading to the
parties or their counsel by pre-paid postage on such a date.  The lawyer's
signature allows discipline by the court for any misrepresentation. This
separate signed statement is called the CERTIFICATE OF SERVICE.

This certificate requires no "return of service", which is a term I only
encounter with the hand delivery of an original complaint. The eFile system
can indeed verify sending and receipt of the responsive pleading (or a least
that it was received and opened at a given mail address.

 To make things interesting, you can add a new party during the course of a
law suit. This requires service of process of the complaint and summons to
that new party, and possibly, yes, a certificate of service to the other
parties and their lawyers.  The terms are not interchangeable, however. They
have very powerful consequence for lawyers and parties alike.

For you history buffs, the term "Process" appears in the 5th Amendment to
the US Constitution which require "Due Process of Law"  which in turn is
based on the concept of fair notice of civil claim or criminal charge, a
right to be heard, a right to counsel, etc.

My comments are not theoretical. I am drawing on my experience as a trial
lawyer and in functional design of several eFiling systems for JusticeLink
(where I was Chief Legal Officer and as an advisor to a Private Process
Serving company) I also did an in-depth cost-benefit analysis and baseline
workflow study of eFiling for the Executive Office of the US Attorneys
(where our good friend and colleague, Diane Lewis works.)

Hope this clarifies and subtle but dramatic difference in the use of a
similar term in two different contexts.
James I. Keane
JKeane.Law.Pro
20 Esworthy Terrace
North Potomac MD 20878
301-948-4062 F: 301-947-1176 (N.B.: NEW FAX NUMBER)
www.jkeane.com <http://www.jkeane.com>


-----Original Message-----
From: Cabral, James [mailto:jcabral@mtgmc.com]
Sent: Thursday, March 13, 2003 5:29 PM
To: 'Chambers, Rolly'
Cc: 'legalxml-courtfiling@lists.oasis-open.org'
Subject: RE: [legalxml-courtfiling] Contribution from OXCI project


Rolly,

I appreciate your taking the time to carefully review the OXCI EFM
Architecture document.  You raise some very good points and I my responses
align with the consensus below.  But to respond to the points directly:

1. Service of documents on other parties

In my understanding, the OXCI Architecture is intended to provide a baseline
EFM for court filing that does not necessarily include service of filings on
other parties.  It is well expected that vendors will provide other EFM
implementations with more functionality such as srevice of filings on other
parties.  These products may or may not be based on the OXCI EFM.  That is,
the OXCI Architecture does not specifically support this service but, as
Dallas Powell clearly points out, the Architecture could be extended fairly
easily to include it.

2. Proposed Court Filing XML Schema

The purpose of including the schema was simply to demonstrate how the Court
Filing 1.1 DTD might translate to a compatible schema and to demonstrate how
certain elements would change based on the design decisions.  Tom Clarke and
John Greacen may have been premature in publicly calling this "Light Blue".
In my opinion, your suggestions for changes to the schema are right on the
money and should be incorporated in the CF Blue schema.

   Jim Cabral

-----Original Message-----
From: jmessing [mailto:jmessing@law-on-line.com]
Sent: Thursday, March 13, 2003 12:08 PM
To: legalxml-courtfiling@lists.oasis-open.org; Dallas Powell
Subject: Re: [legalxml-courtfiling] Contribution from OXCI project


What is described as the role of the Bar Association is not the practice in
any jurisdiction I am aware of. The attorneys in the case are responsible
for providing to all the other attorneys in the case the address by which
they are to be served by mail.

---------- Original Message ----------------------------------
From: Dallas Powell <dpowell@tybera.com>
Date:  Thu, 13 Mar 2003 13:05:50 -0700

>I sent this response directly to Rolly, but perhaps others may be
>interested in the message.
>
>> Rolly,
>>
>> The OXCI document refers to the document "Architecture Models,
>> Business decisions, and Interoperability Issues"
>> http://www.tybera.com/E-Filing%20Architecture%20Models%20and%20Issues
>> .htm
>.
>> OXCI indicates that who ever implements OXCI needs to support all
>> models defined in this document.  That being the case, if you look at
>> the last
>two
>> diagrams, (or the one I have included here) what those diagrams are
>> saying is that an attorney can install the exact same software the
>> court
>installs,
>> that is, an EFSP and an EFM.  Therefor if two attorneys install this
>> software, they can then file, or serve documents onto each other.  In
>> addition, an attorney's client can use the EFSP provided by the
>> attorney
>so
>> that the clients can file documents to the attorney.  Then, if
>corporations
>> install the software, they can begin to exchange, file, serve...
>> documents onto each other.  In reality, this model begins to create a
>> spiders web of installations with a complex method of managing how
>> multiple EFM installations control which EFSP installations can
>> submit information to each other, or even more specifically, what
>> types of filings each
>authorized
>> EFSP can submit. to the various EFMs..  It suggests that when a Judge
>> creates a ruling, they can initiate a filing back to the participating
>> attorneys.   (Two way automation)  Although the diagram represents this
>> behavior, these concepts were not within the initial scope of
>> original document.  The original document was intended to demonstrate
>> to the TC
>that
>> there are multiple designs by which a court could interact with
>> attorneys.
>>
>> The model that is shown in the attached diagram is the architecture
>> that
>is
>> being implemented in Utah Court Filing 1.1 implementation.  There are
>> attorneys and other state agencies preparing to install both an EFSP
>> and
>EFM
>> at their locations.  However, it is my opinion that in order to
>> sustain a system that officially allows attorneys to serve each other
>> it will become the responsibility of the Bar Association to provide a
>> registry for the attorneys to indicate which attorneys support this
>> method of  service.  In the same fashion, it is the responsibility of
>> the Bar Association to
>publish
>> the official mailing address to serve documents on another attorney,
>> or in the case of Corporations, it will be the responsibility of the
>> Department
>of
>> Commerce to maintain a registry of companies who support the
>> interface to
>be
>> served electronically since the DOC licenses and maintains a registry
>> of companies and official addresses.
>>
>> I really don't believe OXCI intended to extend their design this far,
>> but that is the intent of the diagram.
>>
>> Dallas
>
>----- Original Message -----
>From: "jmessing" <jmessing@law-on-line.com>
>To: "Court Filing List" <legalxml-courtfiling@lists.oasis-open.org>
>Sent: Thursday, March 13, 2003 12:17 PM
>Subject: RE: [legalxml-courtfiling] Contribution from OXCI project
>
>
>> I agree with Roger and Rolly that electronic service by the courts or
>EFSP's is a probable incentive to lawyers, depending of course on how
>it is handled. I understand "service" in this context to exclude the
>initial step of filing of a complaint and se
>> rvice of a summons, which presents different issues.
>>
>> Service of paper pleadings by mail is a thankless chore to most
>> lawyers.
>Eliminating it may immediately cut down the overhead of printing and
>mailing such documents by law firms, if no additional fees or very
>nominal ones are charged for the service.
>>
>> In my days of running the Pima County Justice Court small claims
>> project,
>I was impressed with the return receipt service of process that the
>court effectuated by postal mail for the nominal sum of $3.50 per case.
>The litigants were not lawyers, admitte
>> dly, but the convenience and efficiency of the process was greatly
>appreciated by the public and went far in helping the popularity of the
>court, with or without electronic filing.
>>
>> Service effectuated directly between lawyers can also generate a most
>frustrating class of dispute that service through the court or an EFSP
>may eliminate. Without telling tales out of school, consider the
>anectode of the lawyer who is often suspected o
>> f using the stamp of a postage meter in a mysterious way to make it
>> appear
>that a document was sent by US mail earlier than it really was. Or its
>cousin that relates the practices of a crafty lawyer who is known in a
>community for turning off the fax at
>>  times to stymie the use of faxed service of documents by an
>> opponent. I
>imagine the use of junk email filters could be the next generation of
>devices lawyers could creatively put to use in such situations. Taking
>service out of the hands of the lawyers
>>  and putting it with the courts or EFSP's could itself be a big
>> selling
>point to lawyers who have grown weary of such practices.
>>
>> I also appreciate the fine efforts of Mr. Cabral and his group in
>effectuating a very difficult task. I think the report was extremely
>professional and well-done.
>>
>> A common thread that I extract from the two previous comments is
>> whether
>we are in a position yet to give a complete and meaningful response
>about OXCI. As Rolly points out, we do not have the schema, and the
>report had to fashion a crude prototype usin
>> g XML Spy for its working assumptions. Also, the CMS-API workgroup
>> has not
>completed a piece that OXCI requires and assumes will be in place,
>which is the CMS-API. I do not blame anyone for this occurence. Some of
>the problems are hopefully being worked
>>  out. In the absence of  the API, I can only guess if the overall
>> system
>as envisioned can be made to work as intended.
>>
>> I am also unclear if the methods already used by some vendors will be
>facilitated or hindered by the envisioned architecture. I think their
>frank input is indispensible, and I would prefer to hear the results of
>Dallas Powell's interoperability subcommi
>> ttee on the differences in filing techniques between various vendors
>before finalizing any evaluation of the OXCI study. It seems that
>BearingPoint.com has certain methods that are being used in Texas;
>Tybera has others that are used in Utah, still othe
>> rs may be used by Mo Abdulaziz' court in Arizona; and there may be
>> others
>from LexisNexis in Colorado. Perhaps the cataloging of the similarities
>and differences will better arm us with specifics as a basis for a
>meaningful response to the OXCI group.
>>
>>
>>
>>
>> -----Original Message-----
>> From: Winters, Roger [mailto:Roger.Winters@METROKC.GOV]
>> Sent: Thursday, March 13, 2003 9:42 AM
>> To: 'Tom.Clarke@courts.wa.gov'; 'rlchambers@smithcurrie.com';
>'legalxml-courtfiling@lists.oasis-open.org'
>> Subject: RE: [legalxml-courtfiling] Contribution from OXCI project
>>
>>
>> At Tom's suggestion, I'll speak up about how the "Standards for
>> Electronic
>Filing Processes" treats service of filings. In the section on "Court
>Rules," "Standard 1.2A Service of Filings on Opposing Parties" (pages
>34-35 of the February 26, 2003 version
>> ) identifies electronic service as an "important incentive for
>> lawyers'
>use of electronic filing." Further, it says "the efficiency of the
>legal process will be enhanced by having service performed by the
>electronic filing process."
>>
>>
>>
>> The corresponding "Functional Standard 3.14: Service and Notice,"
>> (page
>91) in Subfunction 3.14.1 notes that providing this service is
>optional, not
>mandatory: "It is optional for each electronic filing system to provide for
>electronic notice and servic
>> e. When a court opts for this functionality, the system must provide
>> a
>proof of service record and a record of who is served electronically
>and who must still be served traditionally."
>>
>>
>>
>> The document from which this information is taken can be found at
>http://www.ncsconline.org/D_Tech/Standards/Standards.htm#ElectronicFili
>ngPro
>cesses.
>>
>>
>>
>> Though not directly involved with the group who have been developing
>> OXCI,
>I will say I didn't expect OXCI to embody many, if any, of the optional
>functions and processes, including the electronic service function.
>This is not to say it isn't as importa
>> nt as Rolly indicates. In fact, his calling it out helps me
>> understand
>even more clearly how service and related functions (e.g., document
>exchanges not directly related to a filing) are probably going to be
>needed if we are to get substantial law firm
>> participation in our e-filing systems.
>>
>>
>>
>> Regards,
>>
>>
>>
>> Roger
>>
>>
>>
>> Roger Winters
>>
>> Electronic Court Records Manager
>>
>> King County
>> Department of Judicial Administration
>>
>> 516 Third Avenue, E-609 MS: KCC-JA-0609
>>
>> Seattle, Washington 98104
>>
>> V: (206) 296-7838 F: (206) 296-0906
>>
>> roger.winters@metrokc.gov
>>
>>
>>
>> -----Original Message-----
>> From: Tom.Clarke@courts.wa.gov [mailto:Tom.Clarke@courts.wa.gov]
>> Sent: Thursday, March 13, 2003 8:22 AM
>> To: rlchambers@smithcurrie.com;
>> legalxml-courtfiling@lists.oasis-open.org
>> Subject: RE: [legalxml-courtfiling] Contribution from OXCI project
>>
>>
>>
>> Rolly,
>>
>>
>>
>> I don't want to speak for MTG, but I do know something about the
>> intent of
>what they submitted.
>>
>>
>>
>> One of the problems with the OXCI project is that they don't want to
>> set
>standards, they also don't want to do things that are obviously
>undesirable from an architectural viewpoint, and they don't want to be
>any more incompatible with projects building
>> on CF 1.1 than necessary.  MTG attempted to compromise by absolutely
>minimizing the changes necessary to get from Court Filing 1.1 to a
>schema that is consistent with a web services approach to messaging.
>We jokingly called this "Light Blue" because we
>>  knew the TC would want to go further with the real Blue.
>> Specifically,
>you would probably want to take better advantage of schema features, as
>you propose below, at the expense of backward compatibility with CF
>1.1.
>>
>>
>>
>> I don't think anyone involved with OXCI envisions implementing
>> service
>outside of the core architecture of Legal XML transactions.  If that is
>not clear from the document, then we will need to clarify that for
>potential OXCI vendors.  I believe an appro
>> ach implementing service and other notice types through the core
>> component
>set over the Internet, as opposed to separate noticing via email, is
>recommended by the COSCA/NACM national standard for e-filing.  If I'm
>wrong about this, others involved in cr
>> eating that standard should speak up.
>>
>>
>>
>> Jim Cabral from MTG is the actual author of the document, so he can
>> better
>respond to your specific suggestions.
>>
>>
>>
>> -----Original Message-----
>> From: Chambers, Rolly [mailto:rlchambers@smithcurrie.com]
>> Sent: Wednesday, March 12, 2003 7:55 PM
>> To: Electronic Court Filing Technical Committeee
>> Subject: RE: [legalxml-courtfiling] Contribution from OXCI project
>>
>>
>>
>> I commend MTG and its contribution to the TC of the OXCI Electronic
>> Filing
>Manager Architecture. The design decisions have been thoughtfully
>considered and sound choices have been made.
>>
>>
>>
>> I have one question/comment regarding the architectural piece and a
>handful of comments/thoughts concerning the proposed Court Filing XML
>schema.
>>
>>
>>
>> The Architecture focuses on filings with a court appropriately
>> enough, but
>it was not clear how or whether the architecture also supports the
>service of filings by a filer on other parties or their attorneys.
>Procedural rules require me, as a lawyer, to
>>  send (i.e. serve) other parties in a case with copy of pleadings,
>motions, or other filings that I submit to a court. Does the OXCI
>architecture support this service function or does it assume that
>lawyers will submit filings to a court electronically
>> via applications implementing the proposed architecture but then
>> serve
>copies of the filings on each other by some other means such as regular
>mail, hand-delivery, or email?
>>
>>
>>
>> A related question concerns whether the OXCI architecture supports
>> the
>service on other parties or their attorneys of documents that are not
>filed with a court such as discovery (interrogatories, requests for
>production of documents, deposition notices,
>>  offers of judgment, etc.).
>>
>>
>>
>> The Court Filing XML schema apparently was generated by the DTD to
>> XML
>schema feature of XML Spy. Like similar DTD to XML schema applications,
>the result is a fairly decent XML schema. However, the resulting XML
>schema can be substantially improved and
>> made more useful by modest editing to add features available in XML
>schemas but not available in DTDs. Providing for the following in the
>proposed XML schema would be useful:
>>
>>
>>
>> XML namespaces - the proposed XML schema has no default or
>targetNamespace. An XML schema "best practice" is to declare the
>targetNamespace as the default namespace. This approach eliminates
>problems with element name collisions and other problems when
>> one schema, such as the Court Filing XML schema, is used with
>> another,
>such as the SOAP schema. Creating an XML namespace for the proposed
>Court Filing XML schema would improve its utility significantly.
>>
>>
>>
>> ANY content elements - the DTD to XML schema converter changed
>> elements in
>the DTD having ANY content (e.g. administrativeLaw, civil,
>domesticRelations, etc.), which can contain any of the other elements
>declared in the DTD, to elements having mixed con
>> tent, which can contain text and specifically declared elements. The
>> mixed
>content elements in the proposed XML schema, however, contain no
>declared elements. Thus, filings containing an element within <civil/>
>will be valid against the Court Filing DTD
>> , but not against the proposed XML schema. The wildcard component of
>> XML
>schema is capable of providing substantially the same function as ANY
>content in a DTD. Changing the "empty" mixed content elements in the
>proposed Court Filing XML schema to use X
>> ML schema wildcards would make the schema more equivalent to the DTD.
>>
>>
>>
>> Enumerated element values - XML schema allow the declaration of
>> enumerated
>values for elements in addition to attributes. Many of the elements
>(hairColor, eyeColor, race, etc.)  in the Court Filing 1.1 DTD have
>required data values. Including such requi
>> red data values as enumerated element values in the proposed schema
>> would
>prevent problems that might occur if an element in a filing fails to
>contain the data value required by the Court Filing 1.1 spec.
>>
>>
>>
>> Datatyping - one of the major advantages of XML schema over DTDs is
>datatyping. There are built-in data types available in XML schema for
>date, time, integer, decimal, and others. It also is possible to
>declare datatypes for data items such as zip codes
>>  or telephone numbers. The proposed Court Filing XML schema uses only
>> the
>string data type, but might be made more useful if other XML data types
>were used where appropriate.
>>
>>
>>
>> I again commend MTG's contribution. Thanks for soliciting and
>> considering
>these suggestions.
>>
>>
>>
>> Rolly Chambers
>>
>> -----Original Message-----
>> From: John Greacen
>> Sent: Mon 3/10/2003 6:16 PM
>> To: Electronic Court Filing Technical Committeee
>> Cc:
>> Subject: [legalxml-courtfiling] Contribution from OXCI project
>>
>> I enclose a zipped file containing a report from MTG for OXCI
>> including a
>series of architectural recommendations for the OXCI product and draft
>schemas for court filing and query and response.  The court filing
>schema incorporates ebXML messaging and t
>> he elements from the current version of the JXDDS.  Those are two of
>> the
>objectives we have set for ourselves for Electronic Court Filing
>"Blue." OXCI is contributing these work products to this Technical
>Committee to use as we see fit.  OXCI would als
>> o appreciate feedback on the architectural piece and on the schemas.
>>
>>
>>
>> John M. Greacen
>>
>> Greacen Associates, LLC
>>
>> HCR 78, Box 23
>>
>> Regina, New Mexico 87046
>>
>> 505-289-2164
>>
>> 505-780-1450 (cell)
>>
>>
>>
>>
>>
>>
>>
>>
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