Filing (legal)
Encyclopedia
In law
, filing is the act of submitting a document
to the clerk
of a court
for the court's immediate consideration, for storage in the court's files, or both. Courts will not consider motions
unless an appropriate memorandum
or brief
is filed before the appropriate deadline
. Usually a filing fee
is paid at the same time; such filing fees are one part of the variety of charges that are known as court costs
.
systems, filing rules can be mandatory or permissive. In a mandatory filing system, all documents of legal importance exchanged between the parties are also 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). In contrast, the U.S. state
of New York
is notorious for its permissive filing system, which was modified in 1992 but still largely operates in its traditional form in certain lower courts.
Filing may also refer to submission of a form
to a government agency
, with or without an accompanying fee.
, 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 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 Web site 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.
A few progressive courts, such as the U.S. District Court for the District of Nevada
, now work primarily with electronic files and have abolished the courtesy copy requirement for small filings below a certain number of pages.
. Although American litigants complain about fees all the time (for example, it costs $400 to file a complaint in Los Angeles
), the American system is considered to be quite plaintiff
-friendly by lawyer
s.
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 perverse result that just to initiate a meritorious case, an already severely injured or damaged plaintiff may have to go bankrupt. 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).
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
, filing is the act of submitting a document
Document
The term document has multiple meanings in ordinary language and in scholarship. WordNet 3.1. lists four meanings :* document, written document, papers...
to the clerk
Court clerk
A court clerk is an officer of the court whose responsibilities include maintaining the records of a court. Another duty is to administer oaths to witnesses, jurors, and grand jurors...
of a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
for the court's immediate consideration, for storage in the court's files, or both. Courts will not consider motions
Motion (legal)
In law, a motion is a procedural device to bring a limited, contested issue before a court for decision. A motion may be thought of as 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...
unless an appropriate memorandum
Memorandum
A memorandum is from the Latin verbal phrase memorandum est, the gerundive form of the verb memoro, "to mention, call to mind, recount, relate", which means "It must be remembered ..."...
or brief
Brief (law)
A brief is a written legal document used in various legal adversarial systems that is presented to a court arguing why the party to the case should prevail....
is filed before the appropriate deadline
Time limit
A time limit or deadline is a narrow field of time, or particular point in time, by which an objective or task must be accomplished.In project management, deadlines are most often associated with milestone goals....
. Usually a filing fee
Fee
A fee is the price one pays as remuneration for services. Fees usually allow for overhead, wages, costs, and markup.Traditionally, professionals in Great Britain received a fee in contradistinction to a payment, salary, or wage, and would often use guineas rather than pounds as units of account...
is paid at the same time; such filing fees are one part of the variety of charges that are known as court costs
Court costs
Court costs are the costs of handling a case, which, depending on legal rules, may or may not include the costs of the various parties in a lawsuit in addition to the costs of the court itself. Court costs can reach very high amounts, often far beyond the actual monetary worth of a case...
.
Filing systems
In civil procedureCivil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
systems, filing rules can be mandatory or permissive. In a mandatory filing system, all documents of legal importance exchanged between the parties are also 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
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
operate on a mandatory filing system (with minor exceptions for the most routine discovery
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
exchanges). In contrast, the U.S. state
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
of New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
is notorious for its permissive filing system, which was modified in 1992 but still largely operates in its traditional form in certain lower courts.
Filing may also refer to submission of a form
Form (document)
A form is a document with spaces in which to write or select, for a series of documents with similar contents. The documents usually have the printed parts in common, possibly except for a serial number...
to a government agency
Government agency
A government or state agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency. There is a notable variety of agency types...
, 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 litigantVexatious litigation
Vexatious litigation is legal action which is brought, regardless of its merits, 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...
, 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 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
Complaint
In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...
), 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
Portable Document Format
Portable Document Format is an open standard for document exchange. This file format, created by Adobe Systems in 1993, is used for representing documents in a manner independent of application software, hardware, and operating systems....
electronic documents to a secure Web site maintained either by the court (for example, the U.S. has CM/ECF
CM/ECF
CM/ECF is the case management and electronic case files system for most of the United States Federal Courts...
) or by a private commercial service like LexisNexis
LexisNexis
LexisNexis Group is a company providing computer-assisted legal research services. In 2006 it had the world's largest electronic database for legal and public-records related information...
. 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.
A few progressive courts, such as the U.S. District Court for the District of Nevada
United States District Court for the District of Nevada
The United States District Court for the District of Nevada is the Federal district court whose jurisdiction is the state of Nevada. The court has locations in Las Vegas and Reno....
, now work primarily with electronic files and have abolished the courtesy copy requirement for small filings below a certain number of pages.
Filing fees
Generally, filing fees are controversial because they impede access to justiceJustice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
. Although American litigants complain about fees all the time (for example, it costs $400 to file a complaint in Los Angeles
Los Ángeles
Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...
), the American system is considered to be quite plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
-friendly by lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s.
Many legal systems have filing fees for complaints that are proportional to the amount sought. Thus, the greater the damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory 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
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
's total assets, with the perverse result that just to initiate a meritorious case, an already severely injured or damaged plaintiff may have to go bankrupt. The inherent unfairness of this system as actually implemented in Austria
Austria
Austria , officially the Republic of Austria , is a landlocked country of roughly 8.4 million people in Central Europe. It is bordered by the Czech Republic and Germany to the north, Slovakia and Hungary to the east, Slovenia and Italy to the south, and Switzerland and Liechtenstein to the...
resulted in a U.S. Supreme Court decision, Republic of Austria v. Altmann
Republic of Austria v. Altmann
Republic of Austria v. Altmann, 541 U.S. 677 , was a case in which the Supreme Court of the United States held that the Foreign Sovereign Immunities Act applies retroactively...
(2004).