Whether you are a new attorney or an experienced one, filings are stressful. A lot of rules apply, technology fails and there can be many moving pieces. Not following the applicable rules and filing documents incorrectly can have consequences ranging from losing credibility with your judge to blowing your deadline to file a dispositive motion because your motion was stricken or denied. Filing errors may also result in a filing deficiency notice posted by the court on the CM/ECF docket for all to see, which highlights the mistake via email to everyone involved in the case and registered for CM/ECF notifications.
If you are a young attorney, you probably did not learn about filings in law school. And, as former federal clerks, we also know that attorneys who have been practicing for a long time can still miss filing pitfalls. That is why we taught a short-session class on California federal court filings at the University of California, Irvine School of Law this past January to teach students the basics of pretrial filings and to better prepare them for practice. From the class, we developed the following list of seven key takeaways applicable to all federal filings that will help lessen the unpredictability and stress of filing days:
- Review the local rules, general orders, and any orders by the assigned judge(s).
Judicial districts and almost every judge have specific rules or orders altering or modifying the Federal of Rules of Civil Procedure. As a result, these rules and orders have a significant impact on each case and should be reviewed as soon as a federal case has been initiated and the court has assigned a judge (or judges). You never know what you will find that might affect your filings. For example, while the local rules may set a particular page limit for a memorandum, a judge may set his or her own limit. Also remember that these rules and orders are amended from time to time. If you like to read documents in hard copy, it may be helpful to print the applicable local rules and judge’s orders and make binders of them at the beginning of any case as a reference.
- Get the timing right.
There are all sorts of timing requirements between the Federal Rules, the local rules and judges’ orders. For instance, there may be a deadline to meet and confer, and many districts expand the timing set forth by the Federal Rules for noticing a motion. Also keep in mind that while the default in many cases for filings is midnight, judges can set an earlier cut-off. Figure out all the relevant deadlines far in advance of any filing and if you do not have a calendaring system already in place, make sure that the deadlines appear on your team’s calendars. And always double-check any deadlines set by a software service.
- Create checklists.
Filings can involve many documents, many of which must be filed in a particular order. The best way to stay organized during a filing is to create a checklist with all the documents to be filed, including ancillary documents, and the order in which they will be filed. For example, parties often forget to file their corporate disclosure form, when necessary, with their first appearance. Your checklists can be as detailed or as simple as you want them to be. You should provide them to everyone involved in the filing so that everyone is on the same page come filing day.
- Start Early.
Between giving the documents a final review, converting them to the right format, and actually going through the filing process, filings almost always take longer than you think. Line up your team for the filing ahead of time and start as early on the filing day as possible. Know whether there are any planned CM/ECF outages and familiarize yourself with the CM/ECF system before each filing. For instance, make sure you know how to categorize your filing in the system; you can do this by searching the CM/ECF system for relevant categories or, if necessary, contacting the CM/ECF Help Desk.
- Anticipate if anything needs to go under seal.
Because under seal filings are convoluted and often are subject to separate procedures and orders, determine in advance if anything you are filing needs to be filed under seal. Check to see if there are any guides on under seal filings for your district. If you are filing under seal, make sure you have all necessary documents, including any applications/motions to seal and any redacted versions of your documents. Remember that the burden for sealing is high and the requirements are strict; if not already required, consider submitting a declaration supporting the sealing.
- Every good plan has a back-up plan.
Despite best efforts, filing plans may fall apart. So be proactive. For example, all attorneys should know how to file themselves in case no assistant is available to help or it is an emergency or unexpected filing. Know the CM/ECF Help Desk number or email for filing system problems and know which information technology people to contact in case you have computer issues. If you use a vendor to assist with the filing, have a back-up vendor lined up.
- Tie up any loose ends.
Just because you have uploaded your document to the CM/ECF system does not necessarily mean the filing is done. Additional steps may be necessary to complete your filing. For example, you may be required to provide the court with next-day courtesy copies, you may need to email proposed orders to chambers, and you may need to serve the opposing party if electronic service is insufficient. Figure out before the filing which of these tasks need to be completed and by when and consider adding them to your checklist. Try to handle them before you move on to other tasks so that they are not forgotten. You do not want to be the recipient of a call or email from your judge’s chambers the next day notifying you that you missed a step.
Overall, following the rules and having compliant filings shows that you are a competent and experienced attorney, and will create less work for everyone, including your judge and the judge’s staff, in the long run.
Diana Palacios is an associate at Davis Wright Tremaine and a former federal clerk for U.S. District Court Judge John A. Mendez of the Eastern District of California.
Samrah Mahmoud is a counsel at Troutman Sanders and a former federal clerk for U.S. District Court Judge Josephine L. Staton of the Central District of California.