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A while back, opposing counsel in one of my cases electronically filed two documents in federal court — both within a week of each other — using the same incorrect event. First one document, and then a second, were filed using the “motion” event, which wasn’t even close to what they really were. Those clerks of court do not like incorrect events. And they’re quick on the draw, too. Within hours of each goof, opposing counsel got the official smackdown in an e-mail that was sent to all counsel of record, as well as a docket entry that will appear in the public record pretty much forever. Yep, our opposition was singing the “Deficiency Notice Blues.” Embarrassing enough the first time. But the second time in two weeks? Don’t even go there.
Take a Minute, Pick the Right Event.
Folks, a word of caution: It doesn’t matter which federal court you’re in. “Motion” is not a generic event to use when you don’t know what else to call something. Filing something as a motion sets into . . . um, motion a particular chain of events that results in said document being placed on the judge’s motion calendar for a ruling. The clerks and the judges don’t like to have their motion calendars messed with by people who can’t be bothered to learn the correct way to use the ECF system.
Whether you’re filing a response, a reply, or your grandmother’s apple dumpling recipe, spend a few minutes perusing the event menus to find the event title that most closely fits your document. (Most courts include a full event list within their ECF manuals or guidelines, so you can study it ahead of time, before you’re even logged in to the system.)
If you Don’t See an Event for “Proposed Order,” Then Take the Hint.
While we’re on the subject of ECF procedures, another infraction I see frequently — and which one of my lawyers actually committed while I was on vacation last year — is proposed orders filed as standalone documents in a court that doesn’t allow it. Some federal courts allow it, while others don’t — the reasons why it’s a bad idea being obvious and all. So when you’re submitting that proposed pretrial order or proposed protective order, and you don’t see an event for proposed orders, check the local rules and ECF guidelines. If you’re still in doubt, call the judge’s assistant and ask oh-so-nicely what you should do. Most of the judges I’ve dealt with seem to want proposed protective orders attached to a motion for entry, while proposed pretrial orders are usually e-mailed to the judge’s chambers or the law clerk. After they’re signed, the court clerk files them.
If you simply forgot to attach a proposed order to your motion or response, there’s usually an event designed specifically for tacking on attachments omitted in the original filing. The Texas courts call it “Additional Attachments to Main Document.” Choosing that event leads to a prompt that allows you to enter the docket number of the document your additional attachments go with.
Careful with the Certificate of Service.
Most if not all courts still require a certificate of service, even when all counsel are served through ECF. Always check the local rules for specific certificate of service requirements; it’s my experience that such details are the last thing lawyers think about, if they think about them at all. And, although not every court has a requirement — or even offers guidelines — for how the certificate should read and be formatted, I’ve devised a format that works well for me and — thus far — has been widely acceptable:
“The foregoing [Name of Document] was served in accordance with the Federal Rules of Civil Procedure on [Day Month, Year].”
Followed by a 2-column table listing counsel with their addresses and e-mail addresses (and/or fax numbers, as applicable) on the left and the method of service on the right. I’ve learned that it’s best not to specify a method of service in that opening sentence, because service won’t always be effected in the same manner, and it’s oh-so-easy to forget to change that from one document to the next. And, for the same reason, I use an automatically-updating date code. It’s just way too embarrassing to file something with a service date of 8 months ago.
Another important point on certificates of service: I don’t get the list of names for my certificate from just anywhere. I start with a recent PACER docket sheet, and I compare the docket sheet with the signature sections of recent pleadings. Any lawyer who isn’t listed on the docket sheet but needs to be served will not be served by way of ECF, and thus the certificate shouldn’t say they are being served that way. This will usually include attorneys who haven’t made an appearance in the case (even if their partners or associates have), but can also be lead attorneys who have employed local counsel and are not themselves admitted in the district. For anyone who absolutely must be served but isn’t listed on the docket sheet, you’ll have to serve another way and indicate that in the certificate. Here’s where checking with your lawyer is a good idea: She might or might not deem it necessary to serve counsel who haven’t appeared.
Don’t “Double-Dip” Your Attachment Names.
This won’t get you any smackdowns from the clerk, but it does make you — or rather, your lawyer — look “dumb”: When you upload, say, an exhibit, and pick the word “exhibit” from the dropdown menu, don’t then also type the word “exhibit” in the freeform text box. Just type a description of the exhibit in the box and move on. You already have the word “exhibit”; that’s why you picked it from the dropdown menu. If you type it in as well, then, forevermore, anyone who downloads that document will see “Exhibit Exhibit A,” “Exhibit Exhibit B,” and so on. Just name your exhibit once, and end it.
Docket Like the Clerks Do.
Always remember that, with the advent of ECF, lawyers — or, more often, legal secretaries — took over a function that used to be performed by the clerks of the court, i.e., creating docket sheet entries. The clerks aren’t going to go in after the fact and correct your mistakes or omissions. If you make a lot of mistakes, they’ll make a deficiency entry, direct you to re-file, and note that your original entry should be ignored. But if you just do a clumsy job, they don’t fix that. It goes on your lawyer’s permanent record.
Always pick an attachment type and then describe the attachment. I’ve seen some filings where attachments were given no designation at all — not even a choice from the dropdown (which I wouldn’t have thought possible until I saw it). Ideally, you should give your attachment both a type (Exhibit, Affidavit, etc.) and a further description that includes A, B, C, or 1, 2, 3, and includes a bit of detail briefly describing the item, such as “Declaration of the Soup Nazi,” “original purchase agreement,” “Kramer depo excerpts,” etc.
It’s this type of thorough docketing that got me a complimentary e-mail from a federal clerk recently. Needless to say, I had the e-mail framed in gilt and hung above my fireplace.
An assistant’s careful observation of good ECF practices will result in everyone thinking her boss is just brill. (Even though most lawyers wouldn’t know an ECF event if one jumped up and handed them a steaming apple dumpling.) Of course, if you dislike your boss and want the court and half the local bar to think they are incompetent . . . well, then, just close your eyes and click an event. Any event 😉
From the Author
Fifteen years as a legal secretary have left me with a hundred-word-a-minute typing habit and nothing worthwhile to say about anything else. Hence, my website.
I immigrated to Texas from Louisiana, where I had spent several years working in mostly defense/business-oriented civil practices, with a smattering of criminal work. In Texas, I did hard time in commercial bankruptcy, and then, in a classic frying-pan-to-fire move, spent a year in medical malpractice plaintiff-side. Finally, I settled at a large, international firm where I happily (dare I say, gratefully) work in the business litigation and intellectual property litigation groups.
I’ve amassed quite a store of knowledge in the areas of law office procedures and technology, organization, excellence, the legal job market, and relating to lawyers. Some time ago, I realized I had become a kind of “go-to person” for many of my coworkers, and it occurred to me that I could and should share what I know with a wider audience.
I wish to remain anonymous but I welcome any law office technology or procedure suggestions or questions you might have — whether you work for lawyers or you are a lawyer. (I’m not a lawyer, I will never give legal advice).