The rollout of a new electronic system for court records in three Vermont counties has created frustration and confusion among some lawyers over how it works and the filing fees charged. One attorney said the whole situation is a “hot mess.”
Courts in Orange, Windham and Windsor started using the new electronic case management system, known as Odyssey, on Monday. Other counties in the state are expected to be phased into the system through the end of 2021 as part of the multi-year roughly $12 million project.
Kelly Green, an attorney in the Defender General’s Prisoners’ Rights Office, tweeted about the program rollout Thursday.
“Wow! Apparently not a single attorney, public or private sector, has anything good to say about @VermontCourts new ‘e-file’ system. A hot mess!” the tweet read.
Wow! Apparently not a single attorney, public or private sector, has anything good to say about @VermontCourts new “e-file” system. A hot mess! #vtleg #vtpoli ?
— Kelly Green (@kellygreenesq) April 23, 2020
A great deal of the frustration involved the charging of a $5.25 fee for each filing, plus a processing fee on top of that for paying with a credit card, bringing the total to $5.40 per filing.
“We were stunned,” said David Sleigh, an attorney based in St. Johnsbury. “It wasn’t in any of the training materials, it’s buried in some policy document.”
He added, “When we mention it to other people, they’re like, ‘What?’”
Some attorneys say the system requires the payment, even for filings in criminal cases.
Patricia Gabel, Vermont’s court administrator, said Thursday the filing fee does not apply in criminal cases.
“We’ve done a lot of training on e-filing, and for those who participated in the training who do criminal work they will have been instructed on how to avoid the e-filing fee,” she said.
“I did receive a couple of emails about that,” Gabel added, “and I wrote back to correct them that there is no e-filing fee, but they do need to read the instructions of e-filing.”
Gabel said presentations were held in counties where the program has been rolled out to provide attorneys information about the new processes.
“For some attorneys who haven’t taken the training and haven’t paid attention to the information that’s been provided it might be complicated for them,” she said. “We’ve done as much we can to give people the notice that’s required.”
Still, not all attorneys were apparently aware of how to seek a fee waiver in criminal cases, while others say they were never told about it at those sessions.
Vermont Defender General Matthew Valerio, in an email to an attorney listserv Thursday, wrote about the lack of information about the new system, including the imposition of fees.
“Our impression was that the courts were not prepared to go live when they did,” Valerio wrote. “They were probably under pressure to stand up a system and just threw it out there.”
Valerio did write that public defender staff and contract attorneys are exempt from any filing fees. However, he added, for those contract attorneys who are in private practice there has been confusion about how they should enter filings to ensure the fees are waived.
“The VBA leadership is now fully aware of the issue, and the Chief Justice knows that there are some rumblings, but I don’t think that he understands the level of discontent,” Valerio wrote. He suggested people contact the court administrator’s office to raise concerns.
“I think that the volume of your response might make a difference here,” he added.
Valerio, in an interview Thursday, said he heard from a number of attorneys who said they attended training on the new system and had not heard about the fees or how to seek a waiver to avoid them in criminal cases.
“There’s been a giant row going on for 24 hours,” he said of the uproar among attorneys.
Attorneys have also expressed concern about the imposition of the new fees in civil cases, saying that in some cases there can be many filings over the life of an action.
The Vermont Judiciary at the top of its website provides a notice about the rollout of the system in Orange, Windham and Windsor. A link from that notice takes a user to another page which provides information about the system, while another link off that page contains a document that includes information about the fees.
According to that document, all fees paid through the system have to be made at the time of the filing, with users creating a payment account with a MasterCard, Visa or Discover credit card or by e-check.
The document also states that in addition to specific court-related fees, such as those charged for filing a civil action, there is also the $5.25 fee for each “envelope,” described as “an assemblage of documents filed together at one time in one case.”
The document adds, “This fee is charged by the system vendor and is not paid to the Court. Government agency filers and others who are statutorily exempt from paying filing fees may file via a ‘waiver’ account that can be set up for each registered user.”
Waivers to that fee are available for government agencies “statutorily exempt” from paying filing fees, such as the Vermont Defender General’s Office. A user could also seek a waiver due to financial status.
People representing themselves also still have the option to submit paper filings, thereby avoiding the fee.
The filing fee payment goes to the Plano, Texas-based Tyler Technologies, the company that the state court system has contracted with to provide Odyssey, the electronic court records management system.
Gabel, Vermont’s court administrator, defended the $5.25 fee, saying Thursday it saves attorneys postage or travel time to submit a filing in person to a court. “Attorneys generally embrace e-filing and were only upset it took us so long to get an electronic case management system,” she said.
The fee provides for 24/7 software support and the infrastructure to run the system, according Jeffery Loewer, chief information officer for the Vermont Judiciary.
“E-filing in the three counties just went live Monday, the 20th, so we’re only Day 4,” he said. “It’s been remarkably successful from a process and technical part. We’re getting filings, they’re coming through well.”
Then he added, ‘But we’re in Day 4 and Pat’s just starting to hear some feedback today and it’s not surprising.”
Gabel added that the rollout in three counties this week is a “pilot project,” where issues can be raised and then addressed before expanding to wider use.
Teri Corsones, executive director of the Vermont Bar Association, said Thursday afternoon that she has been getting a “number of inquiries” from bar members upset about the fees.
She said the bar association is in the process of organizing a meeting of its board to address the issue. “I know we’re trying to set it up as soon as possible,” Corsones said.
William E. Kraham, an attorney in Brattleboro, has been calling for changes to court rules for electronic filing even before they were adopted.
“I was aware that the court was rolling out this new system,” he said Thursday, though he didn’t realize it had started Monday in three counties until he saw “a bunch of emails” about it on listservs for criminal defense attorneys in Vermont.
He wrote a letter to the court system’s Special Advisory Committee on Rules for Electronic Filing in August 2019 raising concerns with the new system, particularly the requirement for attorneys to file electronically as well as the fee.
“I believe it is a mistake to charge for filing documents, and I question whether a mandatory fee paid to a vendor, and not the State, would withstand a legal challenge,” Kraham wrote, adding, “Should the vendor make money from a Vermonter’s constitutional right to seek justice in our courts?”
He also questioned whether the money from such fees should be going to a firm such as Tyler Technologies, a publicly traded company with a stock price of more than $300 per share.
“Their game plan is to get municipalities and court systems hooked on their software, and then they can ratchet up the subscription, maintenance, and user fees,” Kraham wrote. “It’s all about corporate greed.”
