Filing (law)
The examples and perspective in this article may not represent a worldwide view of the subject. (December 2010) |
In law, filing is the delivery of a document to the clerk of a court and the acceptance of the document by the clerk for placement into the official record.[1] If a document is delivered to the clerk and is temporarily placed or deposited with the court (but is not accepted for filing), it is said to have been lodged with or received by the court (but not filed).[2] Courts will not consider motions unless an appropriate memorandum or brief is filed before the appropriate deadline. Usually a filing fee is paid which is part of court costs.
Filing systems
In civil procedure systems, filing rules can be mandatory or permissive. In a mandatory filing system, all documents of legal importance exchanged between the parties must also be concurrently 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
In the United States, a permissive filing system has persisted to the present in the state of New York, which was modified in 1992 but still largely operates in its traditional form in certain lower courts.[7]
Filing may also refer to submission of a form to a government agency, 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, cheque, 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 litigant, 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 certain jurisdictions, the clerk will stamp duplicate copies returned to the filer as "file-conformed" or "conformed copy" rather than "filed". These stamps mean the duplicate copy appears to conform to the appearance of the original document, and in turn, a copy bearing such a stamp can be submitted with later filings as evidence of the earlier act of filing. But the "filed" stamp is reserved for the original document that goes into the court file, and will be seen outside that file only if one obtains a certified copy photocopied directly from the original document on file.
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
Filing fees
Generally, filing fees are controversial because some individuals believe that they impede access to
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
References
- ^ Artuz v. Bennett, 531 U.S. 4 (2000).
- ^ Overstock.Com, Inc. v. Goldman Sachs Group, Inc., 231 Cal. App. 4th 471, 487 n.8 (2014).
- ^ See Rule 5(d)(1) of the Federal Rules of Civil Procedure.
- ^ ISBN 9780421513907.
- ISBN 1-85431-784-9.
- ISBN 0752-000152.
- ISBN 9780314239334. Professor Siegel points out that under this system, "it is possible ... for a case to come and go — such as by settlement — without the court having any record of the case at all."
- JSTOR 3649130. In explaining the relative paucity of product liability litigation outside of the United States, Professor Reimann notes: "In the United States, it is cheap to file a lawsuit."