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Testing Outside Counsel's Document Filing Procedure
Law Technology News
Last month, in "Trust But Verify," we identified a mini audit that in-house counsel can administer remotely to assess a firm's attitude about predicting budgets for a project. In this article, we offer a second mini audit, to determine if firms can capitalize on economies of scale.
Query outside counsel: Request a checklist for filing documents with a court. For a more complete picture, request checklists for 1) an active case, 2) the state court closest to counsel's office, 3) the federal court closest to counsel's office, 4) a state court closest to one of their firm's offices in another city, and 5) a federal court closest to one of their firm's offices in another city.
Whats being tested? Whether your firms take advantage of their economies of scale to reduce simple, frequent tasks to structured processes that increase speed and minimize error.
Why? the rules governing the filing and formatting of legal documents can be byzantine. United States Court of Appeals Judge Richard Posner, (7th Circuit, Chicago) for example, penned an epic takedown of The Bluebook (the classic book used for citations) that resonated with those who find the fetishization of string cites to be a tad bizarre. Yet, Posner's view is not universally shared. He is, and has earned the right to be, an iconoclast. His criticism is aimed at a legal world that, for better or worse, is awash in sticklers.
Courthouses employ many of these sticklers. Some sit at windows and gleefully reject your filing for incorrect hole punching. Others sit on benches and look unfavorably on lawyers and by extension, their clients whose briefs manifest a lack of either the intelligence to understand (or the deference to conform to) a standing order.
Legal filings must comply with the rules. Yet, filing and formatting errors are all too common. Administrative errors account for more than 30 percent of reported malpractice claims. Deadlines are missed, essential documents are omitted, evidence is not properly filed under seal, an insufficient number of courtesy copies are sent to chambers, fonts are the incorrect size, case citations are not in the required form, exhibits are not consecutively paginated, etc. Often, it does not matter. But when it matters, the consequences can be significant. Silly as some rules may be, it is far sillier for them to be your undoing.
It is easy to run afoul of filing and formatting rules. Rules vary from circuit to circuit, state to state, courthouse to courthouse, and even courtroom to courtroom. Many rules are counter-intuitive, anachronistic, hypertechnical, idiosyncratic, arcane, non-obvious, or nonsensical. Moreover, it is a challenge to concentrate on minutia and margin size when there are devastatingly brilliant legal arguments waiting to be crafted.
But complying with the filing and formatting rules is also simple. Rules are, well, rules. They are in writing, accessible on the internet, concrete, finite, and relatively stable. Moreover, the rules govern frequently repeated transactions. How many filings does a firm submit to their local courthouse in the course of a year? Hundreds, if not thousands.
The responsibility for following filing and formatting rules is usually delegated to associates, paralegals, and secretaries. The delegating attorney often implicitly assumes that their subordinate recognizes the existence of rules that need to be followed, knows those rules or will look them up, and will in fact abide by the rules. Too frequently, however, the subordinate is operating under different assumptions, such as:
Complying with filing and formatting requirements should be routine. But making it routine actually requires instituting a process. The most obvious process is a checklist. Filing and formatting are amenable to a checklist because the rules are simultaneously overwhelming too abundant, varied, and detailed to rely on memory and straightforward reducible to precise, discrete, and linear instructions.
A filing and formatting checklist assures quality. It should also save client money. The checklist serves a centralizing function that spares the (billed) effort of tracking down and reviewing the disparate primary sources e.g., state court rules, courthouse rules, and standing orders. Those sources all need to be canvassed in the first instance. But the initial effort is unavoidable. That effort should not need to be repeated (and billed), over and over again, for subsequent filings. Instead, the checklist should simply be updated when the rules change, which occurs infrequently.
What you want to find: You'll probably discover that your firms have no such checklists. If they do, the checklists should be:
Accessible: This is the reason to ask for multiple checklists. The checklists should be stored in a repository that the lawyers know exists and how to access. If a firm is in multiple cities, an associate in City 1 should know where to find the checklist for filings in City 2, and vice versa. If your attorney simply prepares checklists for her own use in her own cases, the firm is not taking advantage of its economy of scale, and resources (your budget) are being wasted.
Current: The checklists should all clearly indicate their last update. The firm should also have, and be able to explain to you, a protocol for updating checklists.
Severable: A checklist for an active litigation should actually be the combination of a multiple checklists that are separately maintained. Individual checklists should be maintained for each rule set. That way, an amendment to one rule set, e.g., the state court rules, only necessitates updating a single checklist. Likewise, there are certain checklists that may be appropriate for the drafting stage (i.e., what to prepare by when) while others are for use immediately before the filing goes out the door (e.g., final check of signatures, exhibits, font, margins, paper).
Hyperlinked: The electronic versions of the checklists should have hyperlinks to their primary sources. This saves time if the checklist is unclear. It also facilitates updating.
Quality Focused: The errors that lawyers make in preparing documents for filing are not just of the technical variety. The volume and velocity of legal work often result in blatant mistakes. For example, in using another's work as a template e.g., on the assumption the formatting is correct lawyers have a bad habit of forgetting to change the case number. Quality control steps should, for example, include quick checks of the caption (is all the information, especially the case number, correct?), signatures (are all the necessary documents executed?), and exhibits (are all the exhibits listed in each document attached and in the proper place?)
Comprehensive: Sometimes, items fall through the cracks entirely. There should be a series of questions that are asked to determine whether a filing is complete. Some of these questions should be universal. For example:
Others should be specific to a particular kind of filing. For example, a sub-checklist for a motion for summary judgment might include:
The little things dont matter; until they do. They are the little things because it is not really that hard to get them right. But, because they are the little things, they are also easy to overlook. The modern lawyer has far too many little things to worry about. A process, like a checklist, can help ensure that the little things remain little and dont blow up into big embarrassing things.
D. Casey Flaherty is corporate counsel at Kia Motors America Inc. The opinions expressed herein are his own.
This article originally appeared in Law Technology News.