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Beware of These Traps in E-Filing and E-Notices

Beware of These Traps in E-Filing and E-Notices

by Beverly Michaelis, J.D.

As e-filing expands, so do the opportunities for making filing mistakes and missing deadlines. The consequences can be harsh: dismissal or sanction, as the cases below highlight:

Make Sure You Are Filing the Right Document. In Kinsley v. Lakeview Reg’l Med. Ctr., 5th Cir., June 3, 2009 the plaintiff filed what it thought was a Notice of Appeal five days before a December 31 deadline. However, the document was instead a Request for Oral Argument. The plaintiff was notified of the mistake and submitted the correct document within a five day grace period granted by the local rules. The 5th Circuit dismissed the plaintiff’s appeal without consideration on the merits, holding that the local rule did not operate to extend the deadline five days and a Request for Oral Argument was not equivalent to a Notice of Appeal.

Practice Tips: Do not rely on grace periods to extend filing deadlines. Give documents proper names so they are easily identified for electronic filing. Verify you have the correct document before you begin the upload process, and re-check against the filing confirmation.

An Accidentally Deleted E-mail Is Not an Excuse for Missing a Deadline. In American Boat Co. v. Unknown Sunken Barge, 8th Cir., June 4, 2009 the losing party claimed to have not received the e-mail notifying it that the trial court had issued a final order. At hearing, the court determined that the losing party’s e-mail system had received the e-mail, and someone at the law firm ac­cidentally deleted it, leaving no record of the message. The 8th Circuit ruled this was not a legitimate excuse for failing to file a Notice of Appeal in a timely fashion.

Practice Tips: The court notice in American Boat was deleted by a staff person who was accessing e-mail from outside the office using Outlook Web Access (OWA). If you use remote access for e-mail, make sure you understand exactly how it works. The rule of thumb is: once deleted, no matter where or how, the message is gone. If it’s a court notice and a deadline is missed, the client will likely have grounds for a legal malpractice claim.

Spam and Junk E-Mail Filters Can Block Court Notices. An attorney who failed to appear in Colorado was required to pay the opposing party’s attorney fees when his firm’s spam filter inadver­tently blocked e-notice of a settlement confer­ence. Pace v. United Serv. Auto. Ass’n, 2007 U.S. Dist. LEXIS 49425 (D. Colo. July 9, 2007).

Practice Tips: To avoid this trap, add court domain names to your “safe senders” list so they aren’t identified as junk mail. You may need to make this change at the Internet Service Provider (ISP) level and in the settings of your specific e-mail program.

Keep Staff Informed. In the “good old days,” staff docketed deadline dates from the U.S. postal mail. By opening, date-stamping, and processing court notices and other deadline-related documents, they automatically knew the status of the attorney’s cases and were able to keep the docket up-to-date. In today’s law office, e-mail from opposing counsel and courts, along with electronic case filing, has re­placed much of the paper. While going paperless is beneficial in many ways, it does have an unin­tended side effect: cutting staff out of the loop.

Practice Tips: If your jurisdiction permits multiple e-mail addresses to be associated with e-court filings, include key staff. If not, create rules in your e-mail program to duplicate and forward copies of court notices to staff. You may want to do the same with e-mail from opposing counsel or clients. This will keep staff informed and allow them to immediately and automatically docket deadline dates. If you are ill, on vacation, or simply get buried with work and don’t have time to go through your inbox, staff can continue to monitor incoming e-mail.


Beverly Michaelis is a lawyer and practice management advisor with the Oregon State Bar Professional Liability Fund. You may follow her on Twitter at Her Blog is

One Response to Beware of These Traps in E-Filing and E-Notices

  1. Legal professional liability insurers have long recognized that the most frequent claims against litigators are the result of a breakdown in the docket control system. e-filing and e-mail re-writes the rules and these changes are happening quicker than anyone ever thought possible. This blog provides timely information that every litigation firm needs right now.

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