Oregon State Bar Bulletin — FEBRUARY/MARCH 2016
Parting Thoughts
Unique Terrain
By Holli Houston
My grandpa was a mountain climber. The walls of his house displayed numerous pictures of him atop amazing summits, his three-day beard sprinkled with snowflakes. He passed his skills on to my dad, who in turn, tried to pass them on to me. I climbed the Middle Sister for the first time when I was 4 years old — yes, all the way to the top — and again when I was 13. I haven’t climbed it since.
My dad is an excellent guide for the Middle Sister. He’s done it many times. Other than looking at weather reports (and checking to see when the moon will be full) and getting his backpack together, my dad need not do much to plan. He knows the terrain and what equipment is necessary to reach the top safely.
He, however, has less experience with the South and North Sisters. While he has climbed both, I am confident he would need to do more to prepare. He would consult maps and perhaps a guide book. He would try to anticipate problems and have back-up plans in place.
Moving from traditional court filings to e-filings is similar. Just because you have been practicing for years does not mean you can transition seamlessly into e-filing. You need to read the rules and be familiar with the unique problems and traps e-filing presents.
Imagine this scenario: You represent a plaintiff in a car accident case. For whatever reason, you are not able to file the complaint until the last minute (which although allowable, is certainly not advisable). You prepare the complaint and e-file it the day before the statute of limitations runs. You get immediately confirmation it has been received. You sit back and breathe a sigh of relief (because your experience with traditional filing says that once the court takes the document from you, it will be filed).
Three days later, however, you get a notice from the court: Your filing has been rejected due to a failure to list the amount of the prayer in the caption. You panic, but the notice you receive tells you that you can refile within three days and refers you to UTCR 21.080(5). You add the necessary information to the caption and refile the same day you receive the notice. Saved!
You decide it might be a good idea to let the PLF know what happened — you know, just in case. So, you call in and speak with a claims attorney. You tell what happened, and the claims attorney asks if you followed the steps outlined in UTCR 21.080(5). You confess that in your panic that you did not actually read the text of UTCR 21.080(5) before you refiled the document.
Critically, you did not see UTCR 21.080(5)(a)(ii), which states if you want the date of the refiled document to relate back to the original filing date, you have to opt in by including this exact phrase in the Filing Comments Field (using ALL CAPS): “RESUBMISSION OF REJECTED FILING, RELATION-BACK DATE OF FILING REQUESTED.” (Note: There are different steps required if you are going to refile the document in paper format; see UTCR 21.080(5)(a)(i).)
You did not do this, but since you are still within the three-day refiling window, the claims attorney advises you to refile the document, again, and include the magic words. You do so, only to get a letter a few days later from the court clerk saying his hands are tied — because you did not include the language on the first resubmission, the filing will not relate back. This, therefore, means your case is filed too late.
The PLF claims attorney then agrees to hire someone to try to fix the problem.
It is our understanding, at the PLF, that situations similar to this are occurring on a somewhat frequent basis and will likely continue to occur as more counties, and more lawyers, start using e-court. The PLF has had some success in repairing these situations, but each situation is different, presents unique facts and can be handled differently by different counties and judges.
Also, this is only one example of procedural traps created by the e-filing rules. The rules contain very exacting steps you need to follow in very specific situations.
My advice to you is this: Take a few minutes now and really read through the e-filing rules — UTCR Chapter 28 — to become familiar with them. And, if you get an e-filing rejection notice, read the applicable rules again. Do not try to navigate this unfamiliar territory without becoming educated about the unique terrain involved and the tools you will need to be successful. It could save you a lot of headache down the road.
About the Author
The author is a claims attorney for the OSB Professional Liability Fund.
© 2016 Holli Houston