The Legacy of PACER

It came as a shock when PACER, Public Access to Court Electronic Records, announced in a cavalier fashion that it was deleting old records.

The administrators of that system recently announced that a huge number of documents from five federal courts have been permanently removed from its database and are no longer publicly viewable. For one circuit court, only documents filed within the last 2.5 years are now available; for two other circuit courts, documents now go back only 4 years.

The problem, according to admins, was the “legacy system.”  PACER went live in 1988, back when dedicated terminals were required because there was no viable internet yet.  Back then, it was normal for systems to be dedicated. It was true for Lexis and Westlaw, and most people accessed online services via ISPs like AOL and CompuServe. In 2001, PACER went live on the net.

It wasn’t used much in those days.  Lawyers still filed hard copy papers, and few actually understood what exactly PACER was there to do.  The whole concept of paperless filing was still foreign; after all, how do you get a piece of paper into a computer to upload it to PACER?  Scanners were barely a twinkle in a techie’s eye, and what about signing documents?  Lawyers used WordPerfect on their word processor, and Adobe pdf sounded like a Mexican side dish.

But as Judge Richard Kopf notes, the creation of PACER was, in retrospect, incredibly forward thinking for the court system.

For those who live in the IT world outside the judiciary, it is fashionable to trash PACER and CM/ECF. The problem is that those digit-heads are clueless when they get beyond slot A fits into slot B. Of course, in a perfect world these systems would be elegant and the cost to the public would be zero. But we don’t live in the pristine world of the computer geeks. They know absolutely nothing about managing a large organization, and that is particularly true for an organization that supports judges who have jobs for life under the Constitution. As a consequence of this real life illiteracy, these outsiders have no clue what a triumph these systems are from a variety of perspectives such as internal management of cases to external judicial transparency. The will and skill necessary to convince the internal stakeholders (judges and lawyers) to adopt the concept of these systems (to let go of paper) and then construct a dual public/internal system with few glitches is a major milestone in the annals of good government. This was a truly a monumental achievement.

When you think about who created PACER (and CM/ECF is the local case management/e-filing flavor), and when they did so, it is absolutely astounding.  This was so ahead of its time, so advanced, that it truly was a “major milestone in the annals of good government.”

And yet, for those who got their user name in the beginning, it was a dog from day one.  It was ugly. Butt ugly.  The user interface was so unwieldy as to make lawyers, first cutting their teeth on the concept of electronic filing, cringe and run away.  The language used was incomprehensible to anyone other than whatever monkey decided on it.  Even today, lawyers constantly misfile papers because they have no clue how the admins want them to be characterized.  Picture legal docs given the labels that some tech guy thinks they ought to be called, and lawyers playing pick ’em when deciding which box to check.

The world met the internet via such colorful, helpful and easy-to-use dedicated interfaces as America Online, which was designed to be simple enough that any idiot could figure out how to use it.  This was where those of us who already used computers got headaches, as users were required to know DOS to make the boxes work before little pictures appeared in our Operating Systems to dumb it down so everyone would buy a computer.

So PACER offered neither the geekiness of DOS nor the facility of AOL.  It was just horribly ugly, impossible to decipher. and rarely worked the way it was supposed to.  Uploads failed constantly, but that was when we still used 1200 baud modems that Lexis handed out like candy.  It would take forever to access, waiting, waiting, waiting, until it finally announced that it was down and we should come back a week from next Tuesday.  It was a botch from the word go.

For those who log on to PACER today, it looks like some dinosaur relic of an ancient age.  So you understand, it looked that way on the day it started.  It was never a good system. It was never really functional.  It sucked and lawyers hated it.  For years, we refused to use it, and judges would do us the courtesy of not designating our cases for electronic filing, because we refused to file electronically.  Not happening. Not with PACER, anyway.

What scares me most about Judge Kopf’s assessment is that he is absolutely right, that this was just about the best “good government” can do. It showed that government could be a very early adopter, way ahead of the crowd.  It showed that government could create a relatively viable system, even though that ability seems to have been lost in the decades since.  It showed that the stodgiest of branches, the judiciary, could try something new, even if it wasn’t as “elegant” as one might hope and charged the outrageous fee of a dime a page for the public to see documents that already belong to it.

If this is the best we can expect of good government, we’re doomed.

12 thoughts on “The Legacy of PACER

  1. Gloria Wolk

    I have no problem with PACER; I use it often and have used it since the early 1990s. I am most disturbed about deleting cases that are so recent. Much can be learned from these cases. Now we will have no choice but to pay the excessive fees with Lxix or Westlaw. Is there a political influence here, a profit motive for the private companies? Bad timing, to be forced to pay thousands more per year for what should be publicly available.

  2. Richard G. Kopf

    SHG, I have a comment and a suggestion.

    Comment: What many forget is that CM/ECF, although integrated with PACER for the public, is primarily designed to serve lawyers appearing in cases and the judges and staff who manage those cases. Internally, I can tell you having come to this court long before we had computers in chambers, let alone electronic filing systems, that our management of your cases, because of CM/ECF, is vastly improved.

    Suggestion: If your experience with CM/ECF is terrible, blame your local federal district court. That court can make it easier for you and the other lawyers who try to use CM/ECF. All it takes is a firm commitment from the judges, particularly the Chief Judge, and a demand upon the Clerk’s office to get with customer service NOW. I hesitate to stick my long and bulbous German nose too far into the business of other folks, but I would suggest that your federal practice committee (if you have such a thing) or a bar committee more generally approach the district courts that you find wanting. Offer firm and specific suggestions about how to improve the experience for lawyers. Be a bulldog too. Don’t take no for an answer.

    By the way, I generally share your views about government designed and operated systems including especially computer systems. I would prefer that, say, Google take over CM/ECF and PACER, but that won’t happen. Consequently, we legal realists must work to make the imperfect better.

    I appreciate your posting on this subject. This is more important than many folks might otherwise imagine.

    All the best.

    RGK

    1. SHG Post author

      In a recent case, involving a fairly large number of defendants, every single submission was kicked back at least once, if not numerous times, for being submitted under the wrong label. Defense counsel eventually reached the point where uploaded and ignored the rejection. The judge caught on and let it be.

      Ironically, when there was a meeting of all counsel, the only people younger than the judge were the AUSAs.

    2. Rick Horowitz

      Scott knows I know tech. Before I was an attorney, I helped start two Internet companies, one of which went public. I designed and built the network for North America’s (then) third-largest yellow pages publisher. I co-wrote part of a book on migrating large corporate networks to Windows 2000 when it first came out. I currently have built and maintain numerous websites for my law office, now that I am an attorney, and assist others with theirs.

      And one of the reasons (not the only reason, but one of them) that I don’t want to practice in federal court is CM/ECF.

      I would almost rather you cut my you-know-what off than have to deal with it.

      A couple years ago, I heard talk that California Superior Courts were considering moving to it, forcing us to file all motions via it.

      I began thinking of changing careers again.

      As anti-death-penalty as I am, I would reconsider that for whoever came up with CM/ECF.

  3. Richard

    Electronic filing in my district really has not been that problematic. The only real frustrations I recall from early on involved handling bulky exhibits, but experience with the system and better document handling software has largely eliminated that. Now the system seems to work smoothly, and it isn’t even a topic of conversation except when someone complains that the local attempts at implementing e-filing systems are falling far short of the federal system. Using the wrong label when filing a document generally just resulted in an advisory e-mail from the court-at least on the civil side of things.

    1. SHG Post author

      I forgot all about the problems with exhibits. Another nightmare.

      One of the things to bear in mind is the difference between getting used to a bad interface and CM/ECF not being bad. It’s awful, but we have the capacity to grow inured to the worst of things when we have no choice.

  4. Charles B. Frye

    As to the “good government” quote and subsequent riposte, all I can say is “context.”

    I hated pagers. I hated fax machines. I hated word processors. I hated the fact that they stole my time for reflection, for careful drafting; my time to circulate drafts and discuss them over lunch before filing.

    Everything is compressed now. Instead of ten days the Judge opines that you can get that filed in two.

    However, strangely, I find that when I ignore the stolen time for reflection, I love the “toys.” Scanners are wonderful. Online research databases make me giddy. Electronic filing makes me feel empowered. And, being a DOS guy, I’ve loved PACER from the get-go.
    I know it’s clunky. I know it reminds me of an old Megawars game on Compuserve. But, much like my first real girlfriend, I fondly recall how much better it is than the prior alternative.

    Someday PACER will be replaced by some voice-command 3D system that scans your retina and pulls up your cases automatically. Until then, though, I intend to enjoy the clunky simplicity that makes me feel good. And, gets the job done. For its time, it was monumental.

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