Litigation Support

A recent Law.com article warned lawyers to be wary of the appellate pitfalls of e-filing.

In one case, the law firm meant to file a notice of appeal, but mistakenly filed the wrong document. Oops. The court had no mercy - the right to appeal was lost. In the other case, a lawyer claimed he never received a court e-mail notifiying him of an adverse, appealable order. No mercy and no appeal once again.

In response to these two catastrophic cases of lawyers making an error in e-filing (it gives you the willies thinking of the possible malpractice claims, doesn't it?), my friend and colleague Andy Simpson posted the following suggestions to the ABA Solosez listserve.

Here's what I do:

I have ECF set up to send email notices of filing to myself, my paralegal and a special, efiling-only Gmail address.  The notices to both me and my paralegal would prevent the problem of only one person getting the email and deleting it accidentally. The separate Gmail account ensures that I can get web access to my ECF filings if my email server is down. (Especially important if a technical problem, hurricane or other disaster knocks out my local ISP such that I wouldn't get email for awhile.) But it also would offer evidence as to whether a failure in delivery of an ECF email occurred on my end or the government's end. I rarely access my ECF Gmail account. I just let the email notices build up (with 2 GIGS of storage, who cares)? So it simply serves as an archive for me, just in case.

If you are a true solo, you could have a similar system in a couple of ways. You could check your special ECF Gmail account on a weekly basis to review it for anything that was missed. Alternatively (and especially if you lack the discipline to actually check that account every week), you could have ECF set to send email notices to both your office account as well as your personal email account.  That wouldn't be practical for a high volume practice, but 99% of true solos probably don't have a high volume litigation practice (because almost by necessity it requires the hiring of staff -- I get an average of 10-15 ECF notices a day and couldn't possibly keep up if I tried to do it without staff)

The problem of filing the wrong document can probably best be avoided by having someone actually open the document that has been e-filed after you receive the ECF notice.  I do this as a matter of course since we save a copy of every document in its as-filed condition to the electronic file for the proper case. Hopefully, my paralegal would notice that the efiled document didn't match the document name on the ECF email -- I'm going to raise that as an issue to look for in a firm meeting next week. Certainly for any mission critical document, after reading this article, I am now going to personally review the as-filed document to ensure that no error was made.

Andy Simpson

Andrew C. Simpson, P.C.

5025 Anchor Way, Ste. 1

Christiansted, St. Croix

U.S. Virgin Islands 00820-4671

http://www.coralbrief.com

t:  340-719-3900 x101

f:  340-719-3903

e: solosez@gmail.com

Excellent advice Andy - and thanks for allowing me to post this. Hopefully, adopting policies such as these will help someone out there from inadvertently stepping into legal quicksand.

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