By: Martin Merritt, esq.
Past President, Texas Health Lawyers Association
Past Chair, DBA Health Law Section
martin@martinmerritt.com
“Please Tell Me you Didn’t. . . How to Keep Clients Out of the Jailhouse, Poorhouse and Lawyers Out of the Nuthouse” -Blog
As you can tell, I love talking about health law & litigation issues, and general wellbeing, if you have any health law questions or better yet, need to refer a case, just call or drop me an email and I will happily talk.
The “Ticking Clock.” Two common action-movie devices which are designed to add tension to the plot, are what Alfred Hitchcock called a “MacGuffin” and the “Ticking Clock” trope.
And so it was, on January 2, I sat at my desk, sweating as a 10 second clock on a MacGuffin, called an “authenticator app,” ticked down on my phone for me to enter a code into my desktop computer, which would unlock the United States District Court filing system for the Eastern District of Texas, in order for me to meet a second ticking clock, my deadline to file an agreed application to extend my deadline to answer by two weeks.
You wouldn’t think 10 seconds is a lot of time. Yet, I was not only able to find the MacGuffin, enter the code, unlock the system– and also question, in those few seconds—every career decision I had ever made leading up to this point in my life.
“What the hell made me think I could be a lawyer in the first place?” I thought, as the clock ticked. “What would my children do without my income, after the State Bar found out —I can’t keep up with the computer nerds?” (Tick, tock.) Would I be remembered as a “technological washout,” discarded by time and a profession that had finally passed me by?
These are the things that occur to a person when you have two ticking clocks and a MacGuffin to locate.
How did it come to this? Time was, we litigators had to go down to the courthouse and get a wet-ink stamp on our filings. We knew all the deputy clerks by name and were often invited to their birthday parties. In those days, we just paid our filing fee, handed the deputy district clerk our papers, and they did everything else.
To be sure, the icy hand of the State Bar always weighed heavily on our shoulders, reminding us we could be disbarred at any time for not doing it right; that little blue district clerk ink “filed” stamp, glistening in the morning sun on the courthouse steps, seemed to breathe life and hope for our future careers. It also proved to the State Bar, “you might get me someday, but not today, you son of a bitch. . . not today.”
E-Filing. But then, somebody figured out how to get us lawyers to do the clerk’s job for them, by filing electronically from our computers—and also pay extra money to do it. We would first need to figure out the clerk’s e-filing system, then we would need to fill out all the forms, and pay a fee.
Like a different kind of “bar tab,” the courts now just keep our credit card on file. And boy do we pay– not just for the initial filing, we pay a fee for doing the deputy clerk’s job in each and every subsequent filing, they just add it to our tab.
In fact, I am not even sure they still have “deputy clerks.” I haven’t seen one in years.
The HIPAA problem. So what could possibly go wrong? This has a lot in common with HIPAA, which I wrote about for the Texas Bar Journal, “HIPAA and Medical Records Privacy, A Lawyer’s Survival Guide,” Tex. B. J. vol. 78 p. 540 (2015).
Medicare (CMS) figured out how to save money by making doctors and others stop using paper filing, and instead, submit billing to the government using Electronic Health Records systems. These filings contained what the HIPAA police, the OCR, call “Protected Health Information” or “PHI”. I have written many times, until this point, the federal government couldn’t have given two sh*ts about “patient privacy.”
Privacy was a “state-level” matter. HIPAA is really about what would happen if all those digital identifier’s, the computer coded “zeros” and “ones” ever got into the wrong hands. Criminals could bill the government, just like legitimate providers. That is what HIPAA is really about.
All the newfound federal concern for “patient privacy,” is really about hackers. Which is something I actually do want my government to be worried about. The same thing is happening with the e-filing system.
The Federal Authenticator App. requirement. Like Medicare, the federal court filing system is under attack by hackers. The authenticator app is the answer the government came up with to protect us all. I am all in. Just tell me how.
The federal district PACER and e-filing system had been telling me for months, that I would eventually be required to obtain a “MacGuffin,” an authenticator app. But, it told me “not to worry,” don’t do anything, until I was prompted to do so. (It said something about preventing everyone from rushing to do it all at one time and jamming the phones.) So, I did the reasonable and prudent thing, and ignored it altogether.
Then came the first business day of 2026, which was my filing deadline of January 2, and I found myself locked out. A mad race then ensued, to find an authenticator app, figure out how to marry it to the federal clerk system, enter a code from my phone app, and file my document, all before my law license exploded off my wall.
How it works. It turns out, it is actually quite easy, even for me. (Just do as you are told and don’t try to figure out what the thing is doing.) The idea is (1) you need to get an app onto your phone, (I just picked “authenticator app” because it was the first one Google showed me, had 5 stars and cost $29 a year), because (2) you are going to need to sign up with the app inside your phone, so the app. can first recognize your phone, then your phone will talk to the district clerk website (3) you are going to have to use your phone’s camera to scan one of those square bar codes, a QR Code like menu in a restaurant, from the District Clerk’s e-file website, so the District Clerk website recognizes both your phone and the app you downloaded (don’t ask me how, it just works) (4) once you scan your code, which you only do once, then every time you log into your federal District Clerk e-file system, it will ask for a code you find on the app you downloaded, which comes up automatically (5) you open your authenticator app on your phone, and in my case, it automatically generates a code, and a 10-second clock starts ticking, (6) you enter that code where you are prompted into the form in the federal e-file system that pops up asking for this code, (7) this unlocks the filing system and your law license is safe for another day.