Filing (law)

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In law, filing is the delivery of a document to the clerk of a court and the acceptance of the document by the clerk for placement into the official record. [1] If a document is delivered to the clerk and is temporarily placed or deposited with the court (but is not accepted for filing), it is said to have been lodged with or received by the court (but not filed). [2] Courts will not consider motions unless an appropriate memorandum or brief is filed before the appropriate deadline. Usually a filing fee is paid which is part of court costs.

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Filing systems

In civil procedure systems, filing rules can be mandatory or permissive. In a mandatory filing system, all documents of legal importance exchanged between the parties must also be concurrently filed with the court, while in a permissive filing system, nothing needs to be filed until the case reaches a point where direct judicial management is absolutely necessary (such as the brink of trial).

For example, the United States federal courts operate on a mandatory filing system (with minor exceptions for the most routine discovery exchanges). [3] In contrast, from the reign of Edward IV during the late 1400s to the late 1990s (that is, before the 1998 promulgation of the Civil Procedure Rules), the trial courts of England and Wales normally did not maintain comprehensive pretrial case files (beyond recording the issuance of a writ to initiate a legal proceeding). [4] [5] Instead, after service of a writ, the parties merely served their pleadings on each other, then at some point in time, one party would ask the court to set down the case for trial (that is, put the case on a list of cases awaiting the setting or "fixture" of trial dates) and lodge two copies of the pleadings with the court (along with other documents relevant to the planned trial). [4] [6] Even after they had been lodged (i.e., temporarily deposited) with the court, the pleadings were not filed immediately. Rather, one copy was for the personal use of the judge, while the other copy would be officially filed after the trial together with the judgment to establish the court's permanent record of the issues that had been formally adjudicated at trial. [4]

In the United States, a permissive filing system has persisted to the present in the state of New York, which was modified in 1992 but still largely operates in its traditional form in certain lower courts. [7]

Filing may also refer to submission of a form to a government agency, with or without an accompanying fee.

Filing methods

Filing traditionally has been performed by visiting a clerk at a filing window, paying a filing fee by cash, check, or credit card, and submitting the document to be filed in duplicate or even triplicate. For each document filed, the court clerk inspects the document to ensure compliance with the court's rules on how legal documents should be formatted, verifies that the filer has not been declared a vexatious litigant, and confirms that the case number and caption are for a valid case.

Next, the court clerk then stamps both copies with a large stamp that indicates the name of the court and the date the document was filed, then keeps one copy for the court's files and returns one copy to the filer for the filer's own records. In certain jurisdictions, the clerk will stamp duplicate copies returned to the filer as "file-conformed" or "conformed copy" rather than "filed". These stamps mean the duplicate copy appears to conform to the appearance of the original document, and in turn, a copy bearing such a stamp can be submitted with later filings as evidence of the earlier act of filing. But the "filed" stamp is reserved for the original document that goes into the court file, and will be seen outside that file only if one obtains a certified copy photocopied directly from the original document on file.

In courts that require triplicate submissions, the third copy is then taken (either by the clerk or by the filer) to the chambers or courtroom of the judge assigned to the case. The clerk then adds the document to the docket for the case as well as any related deadlines or events.

If the document is the first pleading filed in a case (usually the complaint), the court clerk also assigns a new case number and opens a new file for the case.

A newer phenomenon is electronic filing, in which lawyers simply upload Portable Document Format electronic documents to a secure website maintained either by the court (for example, the U.S. has CM/ECF) or by a private commercial service like LexisNexis. This is convenient in that many courts can now accept filings at all hours, rather than only during regular business hours. Where e-filing is in effect, the filer is normally required to lodge a "courtesy copy" (that is, a conventional paper copy) at the chambers of the assigned judge by the next business day. The courtesy copy of the filing is merely used to decide the motion at issue and is discarded when no longer needed, since the electronic file is now the court's master copy of the case file.

Filing fees

Generally, filing fees are controversial because some individuals believe that they impede access to justice. Although American litigants complain about fees all the time (for example, it costs $435 to file a complaint in Los Angeles), the American system is considered to be quite plaintiff-friendly by experts on comparative law. [8]

Many legal systems have filing fees for complaints that are proportional to the amount sought. Thus, the greater the damages sought, the higher the fee to file.

Even when one seeks a waiver for grossly unfair fees, courts tend to waive only the amount in excess of the plaintiff's total assets, with the result that just to initiate a meritorious case, an already severely injured or damaged plaintiff may have to go bankrupt. What some consider to be the inherent unfairness of this system as actually implemented in Austria resulted in a U.S. Supreme Court decision, Republic of Austria v. Altmann (2004).

Related Research Articles

In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons that the filing party or parties believes are sufficient to support a claim against the party or parties against whom the claim is brought that entitles the plaintiff(s) to a remedy. For example, the Federal Rules of Civil Procedure (FRCP) that govern civil litigation in United States courts provide that a civil action is commenced with the filing or service of a pleading called a complaint. Civil court rules in states that have incorporated the Federal Rules of Civil Procedure use the same term for the same pleading.

In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adjudicated in the action.

Vexatious litigation is legal action which is brought solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a meritorious cause of action. Filing vexatious litigation is considered an abuse of the judicial process and may result in sanctions against the offender.

A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil action brought by a plaintiff demands a legal or equitable remedy from a court. The defendant is required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment is in the plaintiff's favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

A summons is a legal document issued by a court or by an administrative agency of government for various purposes.

In law, a summary judgment is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial. Summary judgments may be issued on the merits of an entire case, or on discrete issues in that case. The formulation of the summary judgment standard is stated in somewhat different ways by courts in different jurisdictions. In the United States, the presiding judge generally must find there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In England and Wales, the court rules for a party without a full trial when "the claim, defence or issue has no real prospect of success and there is no other compelling reason why the case or issue should be disposed of at a trial."

A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection. Lawyers informally define a demurrer as a defendant saying "So what?" to the pleading.

In United States law, a motion is a procedural device to bring a limited, contested issue before a court for decision. It is a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is regulated by court rules which vary from place to place. The party requesting the motion may be called the moving party, or may simply be the movant. The party opposing the motion is the nonmoving party or nonmovant.

Discovery (law) Pre-trial procedure in common law countries for obtaining evidence

Discovery, in the law of common law jurisdictions, is a pre-trial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as interrogatories, requests for production of documents, requests for admissions and depositions. Discovery can be obtained from non-parties using subpoenas. When a discovery request is objected to, the requesting party may seek the assistance of the court by filing a motion to compel discovery.

Prejudice is a legal term with different meanings when used in criminal, civil, or common law. In legal context "prejudice" differs from the more common use of the word and thus has specific technical meanings.

The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has seven months to veto the rules promulgated or they become part of the FRCP. The Court's modifications to the rules are usually based upon recommendations from the Judicial Conference of the United States, the federal judiciary's internal policy-making body.

In law, a joinder is the joining of two or more legal issues together. Procedurally, a joinder allows multiple issues to be heard in one hearing or trial and is done when the issues or parties involved overlap sufficiently to make the process more efficient or more fair. It helps courts avoid hearing the same facts multiple times or seeing the same parties return to court separately for each of their legal disputes. The term is also used in the realm of contracts to describe the joining of new parties to an existing agreement.

Pro se legal representation comes from Latin pro se, meaning "for oneself" or "on behalf of themselves", which in modern law means to argue on one's own behalf in a legal proceeding as a defendant or plaintiff in civil cases or a defendant in criminal cases.

Legal financing is the mechanism or process through which litigants can finance their litigation or other legal costs through a third party funding company.

Wisconsin circuit courts

The Wisconsin circuit courts are the general trial courts in the state of Wisconsin. There are currently 69 circuits in the state, divided into 10 judicial administrative districts. Circuit court judges hear and decide both civil and criminal cases. Each of the 249 circuit court judges are elected and serve six-year terms.

The Virginia Circuit Courts are the state trial courts of general jurisdiction in the Commonwealth of Virginia. The Circuit Courts have jurisdiction to hear civil and criminal cases. For civil cases, the courts have authority to try cases with an amount in controversy of more than $4,500 and have exclusive original jurisdiction over claims for more than $25,000. In criminal matters, the Circuit Courts are the trial courts for all felony charges and for misdemeanors originally charged there. The Circuit Courts also have appellate jurisdiction for any case from the Virginia General District Courts claiming more than $50, which are tried de novo in the Circuit Courts.

A poor person is a legal status in many countries in the world that allows an individual to have fair court even if he/she does not have enough financial savings. If a judge believes that the accused person is without the financial resources to pay the costs of a court action or proceeding, he/she may apply for in forma pauperis (IFP) status. It is a Latin term for "in the manner of a pauper," which describes a litigant who is excused by a court from paying filing fees and court costs because she cannot afford to do so.

Civil procedure in South Africa is the formal rules and standards that courts follow in that country when adjudicating civil suits. The legal realm is divided broadly into substantive and procedural law. Substantive law is that law which defines the contents of rights and obligations between legal subjects; procedural law regulates how those rights and obligations are enforced. These rules govern how a lawsuit or case may be commenced, and what kind of service of process is required, along with the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases, the timing and manner of depositions and discovery or disclosure, the conduct of trials, the process for judgment, various available remedies, and how the courts and clerks are to function.

Plaint checking under Indian law by the Sheristadar Court is essentially a formal pre-admission scrutiny of the pleadings filed in law courts of India. The process is aimed at filtering out non-jurisdictional cases and getting other formal defects such as computation of Court fees and stamping of instruments, annexing spot map to the Plaint etc, rectified before the case is heard. In a Judgment the Bombay High court held that the trial court shall place such suits in objection category until the requirements of Order VII, rule 3 of the Code of Civil Procedure are satisfied. Similar direction has been imparted by Delhi High Court in its court rule file procedure. The High Court of Punjab and Haryana has prescribed procedure and rules for examination of Plaint in part C of its "Practice in the Trial of Civil Suits".

Special motion to strike Legal motion intended to stop SLAPP lawsuits

The special motion to strike is a motion authorized by the California Code of Civil Procedure intended to stop strategic lawsuits against public participation (SLAPPs). They were created in 1992 with the purpose of encouraging participation in matters of public significance. The motion allows a litigant to strike a complaint when it arises from conduct in furtherance of the moving party's rights to petition or free speech in connection with a public issue. If the moving party prevails, they are entitled to attorney's fees by right. The motion is codified in section 425.16 of the Code. More than 300 published court opinions have interpreted and applied California's anti-SLAPP law. Because the right to file a special motion to strike is substantive immunity to suit, rather than a merely procedural right, federal courts apply the law to state law claims they hear under diversity jurisdiction.

References

  1. ↑ Artuz v. Bennett, 531 U.S. 4 (2000).
  2. ↑ Overstock.Com, Inc. v. Goldman Sachs Group, Inc. , 231 Cal. App. 4th 471, 487 n.8 (2014).
  3. ↑ See Rule 5(d)(1) of the Federal Rules of Civil Procedure.
  4. 1 2 3 Goulding, Simon (1996). Odgers on Civil Court Actions (24th ed.). London: Sweet & Maxwell. pp. 146–150. ISBN   9780421513907.
  5. ↑ Osborne, Craig (1998). Civil Litigation (6th ed.). London: Blackstone Press Limited. p. 233. ISBN   1 85431 784 9.
  6. ↑ O'Hare, John; Hill, Robert N. (1997). Civil Litigation (8th ed.). London: Pearson Professional Limited. p. 114. ISBN   0752 000152.
  7. ↑ Siegel, David D. (1999). New York Practice (3rd ed.). St. Paul: West Group. pp.  118-120. ISBN   9780314239334. Professor Siegel points out that under this system, "it is possible ... for a case to come and go — such as by settlement — without the court having any record of the case at all."
  8. ↑ Reimann, Mathias (2003). "Liability for Defective Products at the Beginning of the Twenty-First Century: Emergence of a Worldwide Standard". The American Journal of Comparative Law . 51 (4): 751–838. doi:10.2307/3649130. JSTOR   3649130. In explaining the relative paucity of product liability litigation outside of the United States, Professor Reimann notes: "In the United States, it is cheap to file a lawsuit."
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