Thursday, December 27, 2012

4L: What to do When . . . You File Using the CM/ECF System

Last time we discussed removal from state court to federal court.  If you're in a state system that already utilizes an electronic filing system, then you have a head start on the process.  If you aren't, then you're likely like the rest of us.  Fumbling around at 11:55 pm trying to find the right classification of pleading to timely file.

This post probably won't be very exciting.  It will be more of an instructional with screen shots.  We will be viewing CM/ECF systems from the Western District of Missouri.  A few weeks later, we'll be looking at the CM/ECF system of the Eighth Circuit Court of Appeals when we get into how to file an appeal and what is required for the filing.

First things first: CM/ECF actually means something -- "Case Management/Electronic Case Files." Also, this guide will barely touch on case initiation. For the nuts and bolts on how to initiate a case see WDMO Guide to Case Initiation through ECF/CM.  Each district is different.  In the District of Kansas, you email the complaint to the clerk.  In Arkansas, you mail the complaint in to the clerk via U.S. Mail.  In the Western District of Missouri, you can file online through the CM/ECF system.

These screen shots are hard to read.  It may be helpful to log in and go screen by screen so you can see what I'm looking at as you move through the process.

1) When you log in you'll be taken to the CM/ECF home screen for the court.  There is a header at the top takes you to the appropriate screens.  Right now we'll go ahead and click "Civil."  Don't worry about the drop down menu, just click the word.

2) The screen below is now seen.  This is the main menu for Civil filing.  The program calls each filing an "event."  You'll see you can open a new case through "Online Case Opening," request a "Certificate of Good Standing," "Email the Court" proposed orders or summons, file "Initial Pleadings and Service," file "Motions and Related Filings," and file "Other Filings." The list below each heading is clickable.  To file your proof of service, or notice of acknowledgement, click "Service of Process" under "Initial Pleadings and Service."

To file an an amended complaint click "Complaint and Other Initiating Documents" under "Initial Pleadings and Service." 

For you attorneys that do Social Security Disability appeals to the District Court, your menu is under "Social Security Events." 

 3) We're going to file a motion for leave to amend a complaint. Click "Motions" under "Motions and Related Filings." The following screen pops up. Whatever "available events" you click will appear in the empty box on the top. If you don't want to scroll, type in the box. Either type "Amend" or click the second option, "Amend/Correct." You'll see it appear in the "Selected Events" box to the right of the list.

Click the "Next" box beneath the list and wait. Seriously. Just wait.

 4) The next screen you'll see is asking for your case number.  There are several ways you can put in the number and it not work.  Just to be sure, put all numbers in except for the first several "0s" in the last part.  For instance, "4:12-cv-00123" should be entered, ""4:12-cv-123." 

Here's a tricky part on slower computers.  Once you put in your case number and click the "Next" box DON'T DO ANYTHING UNTIL YOU SEE THE NEXT SCREEN.  The case name will be seen before ANY of the page loads.  It tempts you to click it.  Don't.  You go into a report screen for the case and can lose important minutes when you should be filing. 

 5) Make sure you WAIT . . . wait . . . wait . . . wait . . . until you see this:

Now that you see the correct screen . . . You'll see a button that reads, "Pick Filer." To the right you'll see "Select the filer."  Under "Pick Filer," you can see parent corporations of a company (it there are any) and who represents what party by clicking the "+" sign next to the party.  To actually file, click your party's name or names.  To select multiple names hold "ctrl" on your keyboard while clicking.  Or select the radial dial "All Defendants."  Once your party is blue (and I hope that doesn't indicate how they feel about your representation), click "Next."

6) Now you've got a screen that looks like this:

The main difference is that there isn't a huge black box over your parties' names.  (After all, I did click that I would redact when I logged in . . .)  There are two areas you can load documents.  "Main Document" and "Attachments."  For our motion for leave to amend, we'll click "Browse" next to "Main Document."  Go find the right file and click it once to highlight it.  Then click "Open" in the window.  By the way the documents must be PDF files. 

SIDEBAR: If you have an MS Word doc and you need to it be in PDF, Microsoft Word 2010 allows you to save Doc and Docx files as PDFs.  Open the document.  Press "File" in the top left corner, select "save as" and find the correct drop down "PDF."  You're all set!

If you don't have MS Word 2010, download the free version of Primo PDF.  When you get that downloaded, instead of saving from Word, "print" the document to the Primo PDF "printer."

Back to Filing: After you've found your motion to amend, and pressed "open," you'll see the document path in the box to the left of "Browse." 

Go to the "attachment" browse and upload a copy of the amended complaint you are seeking leave to file.  Click the arrow under category and a list of options will appear.  Click "Exhibit."  Type whatever you want in the description. I would type "A - Amended Complaint," or something like that.  Press "Next" and wait for the next screen.

7) This screen is asking you to relate it to a document.

If it is not a motion in response, click "Next."  The motion we're doing is not related to anything.  If it is, check mark that box next to "Should this . . . " When you have that clicked and press "Next," a list of all relatable documents is seen.  Click the box to the left of the document you're relating to and press "Next."

8) This screen is basically for your information.  This is when your opposing counsel must reply to the motion unless otherwise specified by the court. Click "Next."

9) The following screen allows you to add details about the motion.  The first box is a drop down menu and the second box can by typed in.  On this motion I would leave the first box blank and type "Complaint" in the second box.  Once you're satisfied with your decision, click "Next."

10) This screen is your last chance to determine that you want to file and that the filing is correct.  Look this over carefully and determine that everything looks good.  The fakepath at the bottom is for you to make sure you have the correct file.  That document path will not be seen by anyone.  When you're ready to pull the trigger and continue the adverserial process. Click "Next."  TWICE!  I don't know why this happens to me, but I have to press "next" two times to submit the filing.

CONGRATULATIONS! You have filed your motion for leave to file an amended complaint!  And now another 14 days of wainting begins . . .

Saturday, December 22, 2012

4L: What to do When. . . You Get Removed to Federal Court for the First Time

You triumphantly walk out of the county courthouse. Although you've been an attorney for three months, and you've been out of law school for eight months, you just completed your first REAL act as an attorney -- you've filed your very first case. A person has trusted you to represent them in their time of pain and injury. A person has trusted you to fight for them against the mega car company that poorly designed a breaking system on their new car.

Defendants are served and now you wait . . . And you wait some more . . . You'll be waiting for 30 days wondering what big-firm will be hired. What Super Lawyer will be filing a response . . . And the waiting seems longer when you're filling your time with playing NHL 2005 on PlayStation 2, perusing "People You May Know" on, and reading "Speaker for the Dead." After all you've already finished your projects on your other five cases. Well that's what it was like for me.

And it happens. The bombshell. You're hit with a dizzying notice of removal. Even though you got a "B" in Federal Civil Procedure, you have no idea how to handle this. After all, your professor didn't teach anything about 28 U.S.C. § 1446. You just know when removal is proper jurisdictionally speaking. And add the fact that you're not even admitted to practice in the federal court in which the notice was filed in!

Ok, first things first. Calm down. Take a deep breath. The first thing you need to do is get admitted in federal court. And fast. Especially if the notice is deficient and you have a fighting chance of remand.

1. Call the federal court and speak to someone that can tell you what steps to take to get admitted. About 15 days passed from removal to my admittance in the proper court. Once I got the forms that were needed, my sponsors to fill out sponsorship statements, and paid the admissions fee, I attended a local swearing in ceremony with about 5 other attorneys.

2. Determine if the notice was procedurally sufficient. Read and re-read 28 U.S.C. §§ 1441, 1445-48. The notice must be filed in federal court within 30 days of service on the defendant. It must be filed with the state court docket sheet and legal file of record from the state court. In some circuits, including the 8th, the notice of removal to the state court must also be filed within 30 days or the removal is not effected. A remand is proper for procedurally deficient removals on that basis.

3. If you have grounds, procedurally or otherwise, file a motion for remand. A motion for remand for any reason besides subject matter jurisdiction must be filed within 30 days from the date of filing of the notice of removal. 28 U.S.C. § 1447(c).

Side note: how to file through ECF/CM system will be the next post.

4. If you don't have grounds for removal and there are federal claims that can be brought (or state claims if the original complaint stated only federal claims), file a motion for leave to file an amended complaint. Add the appropriate claims and file your amended complaint.

5. Learn the Federal Rules of Civil Procedure and enjoy the prestige of federal practice.

Congratulations, you're in federal court! At least you didn't have to pay the $350.00 filing fee . . .

Thursday, December 20, 2012

Opposing Counsel: Naughty or Nice?

So you're an attorney.  You're armed with the authority to make decisions for people.  You're equipped with the brilliance to pinpoint the appropriate law to the judge.  And you're block-headed enough to do it with arrogance, obstinacy, and inflexibility.  And you wonder why no one wants to work with you or will consent to an extension. 

I've tried to build relationships with a good deal of people in the legal community.  If I have an appearance on a case that I haven't met the opposing attorney, I try to find a picture of them so I can introduce myself before our case is called.  This isn't everyone's style.  But I've found that the case goes better for both attorneys and both clients when I have a good relationship with the other attorney.  After all, you catch more flies with honey than vinegar.

One thing I've noticed about attorneys that seem to be hard to deal with -- they're young.  Why do young attorneys feel the need to be tough, stand their ground, or even be inflexible.  No body will think you're incapable because you give ground on the unimportant things.  No body will think less of you if you're kind but firm.  Here's a secret: they'll think higher of you.

In recent weeks I have gotten some choice morsels of advice from some very reputable sources.  Rob Pitkin is an attorney in Kansas City at Levy Craig.  He has been honored as a Super Lawyer since '05 and has been chosen as one of the Best Lawyers in America for the last two years.  We were actually taking about handling other attorneys.  He recounted how he once thought he needed to be tough and hard when handling cases.  He stated that method was inconsistent with who he was.  As he has gotten older, and more experienced, he said that he's found it to be much better to 1) be himself, and 2) be gracious to his opposing counsel.  His words to me: "It's hard to do wrong to someone you like."  The moral? Get to like you're opponent and you'll be easier to work with.  As important is to get to know your opponent and get them to like you.  You'll have more fun with the case, you'll get more out of the case, and you'll have a relationship that WILL come back to benefit you in years to come.

Here's another encounter worth noting: Rod Richardson is the President of the Kansas City Metropolitan Bar Association (KCMBA).  He was discussing how the KCMBA can garner more members this year.  He was telling the leadership team about building relationships with fellow attorneys in the community and inviting them to meetings.  He analogized getting bar membership to practicing against other attorneys.  He implored us to build healthy relationships with our opponents because, "You won't spit on someone you like."  Nearly identical language from two separate veteran practitioners. 

What's the lesson?  Don't be hard to work with, inflexible, or closed down.  This specifically is a call to younger attorneys: Play nice! Be friendly.  You'll do your client AND THE PROFESSION a service if you're nice. 

Or you can be naughty.  And you'll do your client and profession a disservice.  And sooner or later, the judge will give you a lump of coal.