Time to Change the Federal Rules and SCOTUS Rules: Remote Appearances and Pro Se E-Filing

 

                                            Artwork by Thomas Richards using Photoshop 7.0
                            available at https://x.com/tlthe5th/status/2014464820167266794/photo/1

Today I submitted two formal proposals to change the rules that govern federal court practice. One goes to the Advisory Committee on Civil Rules, which oversees the Federal Rules of Civil Procedure. The other goes directly to the Supreme Court of the United States, which sets its own rules.

The problem is simple: the federal courts are stuck in 1985.

Consider what is now electronic by default in American life:

•        Tax filing -- the IRS not only permits but encourages electronic filing

•        Banking -- virtually all transactions are electronic

•        Government benefits -- Social Security, Medicare, unemployment all administered electronically

•        Education -- college courses are routinely conducted remotely

•        Medical consultations -- telemedicine is now standard practice

•        Corporate governance -- shareholder meetings and board meetings conducted by video

•        Real estate closings -- increasingly electronic, including notarization

•        Congressional hearings -- witnesses regularly testify remotely

Yet the federal courts -- the institution charged with protecting constitutional rights -- cling to procedures from a previous era. The Supreme Court of the United States, which decides cases involving the most sophisticated technology companies in the world, will not let a pro se litigant file a PDF.

I wrote about this problem before, when Tommy had his emergency application mooted because the Court took five days to docket a hand-delivered filing (even though he emailed it to the clerk in addition): SCOTUS's Gatekeeping: How a 5-Day Delay Mooted Justice.

The Two Proposals

First, I submitted a Suggestion for Rulemaking to the Advisory Committee on Civil Rules proposing:

•        A new FRCP Rule 43.1 establishing a presumptive right to remote appearance for non-evidentiary proceedings -- no justification required, no motion needed, just notice

•        An amendment to FRCP Rule 5 requiring all district courts to provide electronic filing access to pro se litigants

The COVID-19 pandemic proved that remote proceedings work. The federal judiciary spent millions of dollars building the infrastructure. Every federal courthouse in America now has the capability to conduct remote hearings. That investment was made with public money. Yet courts let it sit idle while continuing to require physical presence -- which burdens only those who cannot afford to travel.

Second, I submitted a letter to the Clerk of the Supreme Court proposing:

•        An amendment to Supreme Court Rule 29 to permit pro se litigants to file electronically

•        An amendment to Supreme Court Rule 33 to eliminate the booklet format requirement entirely

The booklet requirement -- 6⅛ by 9¼ inch paper, 60-pound weight, saddle stitch binding, color-coded covers, 40 copies -- costs approximately $3,000 for professional printing. According to Federal Reserve data, 37% of Americans cannot cover a $400 emergency expense. A $3,000 printing requirement is not a minor inconvenience -- it is an effective bar to participation. I wrote about this pricing-out problem in more detail here: The SCOTUS Psyop: Pricing Out Ordinary Americans.

And an electronic document is superior to a bound booklet in every functional respect. It can be searched instantly, copied, compared across multiple documents. The Court demands that litigants spend $3,000 to produce a product that is functionally worse than what the electronic filing system provides for free.

Why This Matters

Access to the courts is a fundamental right. The Supreme Court recognized long ago that "the right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government." Chambers v. Baltimore & Ohio R.R. Co., 207 U.S. 142, 148 (1907).

Rules that systematically exclude litigants based on geography, wealth, or representational status betray that promise. The technology to remedy these inequities exists. The infrastructure has been built and paid for. The only remaining obstacle is institutional inertia.

These proposals would not revolutionize federal practice. They would merely extend to all litigants the access that wealthy, represented parties already enjoy.

The Documents

Here are the actual submissions. You can view them embedded in the blog post below, or download them from the links.

Suggestion for Rulemaking to the Advisory Committee on Civil Rules (FRCP Amendments):

Proposed Amendments to Supreme Court Rules 29 and 33:

What Comes Next

The Advisory Committee will assign a suggestion number to the FRCP proposal and forward it to their reporter for analysis. If the Committee decides to pursue it, they may publish proposed amendments for public comment. That process takes years.

The Supreme Court has no formal process for rule suggestions. The Court receives letters, considers them internally, and acts or does not act as it sees fit. There is no public comment period, no advisory committee, no transparency.

But change has to start somewhere. The FRCP proposal becomes part of the Advisory Committee's public docket. The SCOTUS proposal has no guaranteed public record -- which is why I am publishing both here. If you believe the federal courts should join the 21st century, share this post. Write to the Advisory Committee yourself. Contact your representatives. We need to demand that these unjust rules be changed.

-- Lisa Weingarten Richards, Esq.