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After the Bar

Practice Management

A Step-by-Step Guide to E-Filing and Pitfalls to Avoid

Matthew Paul Smith-Marin

Summary

  • Each state has slight differences in the process because of the different e-filing platforms and systems.
  • When calculating deadlines, consult your jurisdiction’s rules and case law on filing and service deadlines.
  • Courts are not sympathetic to missing deadlines due to malfunctioning technology, just as they are not easy to excuse late paper filings based on inclement weather, bad traffic, or other non-extraordinary circumstances.
A Step-by-Step Guide to E-Filing and Pitfalls to Avoid
Gorodenkoff Productions OU

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Imagine running into the courthouse, documents in hand, and your watch reads 4:59 p.m. You have a sweat-laden brow and are crossing your fingers and praying that you arrive at the clerk in time to file your pleadings before today’s 5:00 p.m. deadline. Seconds away from the counter, you throw the documents down and look at the clerk with a pleading look in your eyes. Success—the clerk takes your documents, and you have met your filing deadline.

Fast-forward to today, in the days of electronic filing (e-filing). Now, attorneys, paralegals, and assistants don’t need to leave the office to file court papers. The process can theoretically be done at any time of the day or night on any day of the year.

Electronic filing became mandatory in federal courts, with a few exceptions, on May 17, 2012. Depending on state-level claims, state courts began using electronic filing in different years, and some are still rolling out statewide systems. The Florida Supreme Court began accepting voluntary electronic filings in February 2013 and, in 2014, made certain e-filing mandatory for attorneys. On the other hand, not all states currently have statewide e-filing for all cases. For example, Georgia e-filing for all civil and domestic filings in state and superior courts is now mandatory as of 2019; however, some Georgia courts do not yet use Odyssey eFileGA for other filings.

In addition, in many jurisdictions, e-filing is an option for unrepresented litigants. In many instances, those jurisdictions provide information to pro per litigants, such as New York, which provides information on how to create e-filing accounts and details the benefits of e-filing.

Sidebar—if you have never e-filed and don’t have a colleague, mentor, or assistant who has e-filed, consider going to a similar section of your jurisdiction’s website to learn more about the process.

The E-Filing Process

So, what is the overall process? Here is a general overview of how to e-file. Remember that each state has slight differences in the process because of the different e-filing platforms and systems.

Login to the E-File Portal

To start the process, go to the e-file portal for your jurisdiction. For example, if you are filing a federal complaint, go to the federal courts’ Case Management/Electronic Case Files (CM/ECF) system by way of a Public Access to Court Electronic Records (PACER) account. If it is your first time e-filing, you will have to register for an account.

Select a County to File

Many platforms will then ask you to select a jurisdiction to file in. There will usually be options to initiate a case, file documents on existing cases, file documents to multiple cases, or submit proposed orders.

Select the Division and Court Type

You will have to enter the division and court type. For example, probate, criminal, civil, county, etc. If it is an existing case, you should be able to search by your case number and identify the parties currently involved.

Uploading Documents

When adding documents, make sure you follow the parameters for uploads. The preferred upload is often a PDF because Word documents can shift formatting when uploaded (or when downloaded). If the platform allows Word document uploads, and you decide to upload in that format, remove any metadata from the Word document if you don’t want those document properties shared. Also, consider that many e-filing platforms do not like special characters or punctuation marks in the name of the document being uploaded.

Pay Filing Fee

If your e-filing requires payment, you will be prompted to enter payment. Note that depending on the e-filing platform and jurisdiction, some credit cards are not accepted.

Notice of Service

Make sure you receive and review the notice of service of court documents and verify that it was sent to all your intended recipients.

Common E-Filing Pitfalls

As illustrated above, e-filing is not too terribly difficult. However, there is room for possible errors and mishaps with filing deadlines. Consider the following situations.

Miscalculating Deadlines

In the case of in-person filing, it is clear whether the documents are filed with the office that day or not. However, depending on whether the corresponding clerk’s office is closed for the day when you e-file, the document could be deemed to be filed on the next day. For example, Florida law states that if the document is received on a nonbusiness day or after 5:00 p.m. on a business day, it will be considered officially filed as of 8:00 a.m. on the next business day. This contrasts with Illinois law, which states that a document e-filed before midnight on or before the date the document is due will be considered timely submitted.

Another layer to consider is whether e-filing after 5:00 p.m. constitutes service on that same day or the next. For example, California allows e-filing until 11:59 p.m. on the day the filing is due. But if same-day service is required, the document must be filed by 5:00 p.m. on the court date that the filing is due. So, when calculating deadlines, consult your jurisdiction’s rules and case law on filing and service deadlines.

File Size and Format

Make sure you comply with document size, font size, margin format, or other formatting standards. Most of the time, court papers must be standard letter size (8.5” x 11”). If a specific court form needs to be used, your filing may be kicked back if you don’t use the correct document; a rejection may also occur if the form or pleading is not readable or the file is corrupted. Also, be careful if the e-filing platform places a file size limit. For example, Michigan’s MiFILE allows a maximum file size of 25 MB. On the other hand, New York allows file sizes of 100 MB before PDFs are automatically rejected by the New York State Courts Electronic Filing System (NYSCEF).

Glitches in Technology

Beware of computer viruses, corrupted files, or system errors. They will not be an excuse for missing an e-filing deadline. In Martinelli v. Farm-Rite, Inc., the defense counsel’s computer system failed to pick up the date to appeal a case, likely because of the computer system’s software malfunction. The court held that “permitting a computer failure to justify a late submission would open the proverbial floodgates for violations of deadlines imposed by statutes, court rules and court orders.” Courts are not sympathetic to missing deadlines due to malfunctioning technology, just as they are not easy to excuse late paper filings based on inclement weather, bad traffic, or other non-extraordinary circumstances.

Filing the Wrong Document and Filling out Fields Incorrectly

Make sure to develop a good naming convention for documents so you don’t inadvertently upload the incorrect documents. Courts have held a filing untimely in many instances where a lawyer uploaded a document before the filing deadline and subsequently found it to be an incorrect document (see, e.g., Kinsley v. Lakeview Reg’l Med. Ctr.).

In addition, make sure to fill out all fields correctly in the e-filing platform. In Denver, a lawyer missed a filing deadline for his bank client that wanted to object to the discharge of a borrower’s debts. The lawyer stated he tried to enter the demand amount, but the system would not take his entry (specifically specifying no dollar signs or commas). Finally, he inserted an inaccurate number, and the system moved to the next window. Coupled with other issues, he finally filed the complaint at 12:16 a.m., missing the midnight deadline. The 10th US Circuit Court of Appeals was not persuaded that his missed deadline should be excused.

Relying on Others

It is wonderful if you have a reliable paralegal or assistant to help you with e-filing. However, what if they are out of the office unexpectedly, and you need to file documents? Keep in mind that some e-filing systems require different login accounts. So, factor that into the equation when cross-referencing important deadlines.

In addition to the pitfalls detailed above, consider issues with misinterpreting electronic notices or receiving rejection notices without sufficient time to correct any mistakes in the documents or payment of required fees. So, it should go without saying that at the end of the day, don’t wait until the last moment to file your documents, whether in person or electronically. Make sure to have a working understanding of e-filing, so if needed, you can successfully file without running afoul of missed deadlines or incorrectly filed pleadings and other documents.

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