Oregon eCourt and Arbitration

Are Oregon arbitrators required to eFile arbitration awards and judgments? Let me answer that question with another question: were you conventionally filing awards and judgments prior to the implementation of mandatory eCourt?  If your response is yes, then odds are you must eFile.  Let’s step through the analysis with this caveat: please verify the necessity of eFiling with the OJD help desk [see endnote] or your friendly local court clerk.

What do the UTCRs say?

UTCR 13.210(5)
Within 7 days after the conclusion of the arbitration hearing, the arbitrator shall send the award to the parties without filing with the court and shall establish procedures for determining attorney fees and costs.  Result:  In a non-dissolution case, the arbitrator files nothing.  The onus is on the parties.

UTCR 13.210(6)
In dissolution cases, the arbitrator shall send the award to the parties within 7 days after the conclusion of the arbitration hearing and shall direct a party to prepare and submit a form of judgment. The arbitrator, upon request of any party, shall give the parties an opportunity to be heard on the form of judgment. The arbitrator shall then approve a form of judgment and file the award, along with the approved form of judgment, per UTCR 13.220. Result: In a dissolution case, the arbitrator becomes the “filer.”  The rule expressly states the arbitrator shall … “file the award.” If the dissolution case is in a judicial district which has implemented mandatory eCourt, the arbitrator must eFile the award in compliance with UTCR Chapter 21 (text searchable PDF, under maximum file size, etc.)

Are There Any Exceptions to UTCR 13.210(5)?  What about Local Rules?

Ah ha, grasshopper – you have learned well!  The fly in the ointment is exactly that. If the case is in a jurisdiction that has adopted Supplementary Local Rules (most have), you must follow the SLR.  If the SLR requires you, as arbitrator, to file the award or judgment, you’re stuck.  Thus my question above: did you conventionally file awards and judgments prior to the implementation of mandatory eCourt?  If yes, nothing changes except the filing method.  If you are in a jurisdiction that has implemented eCourt, you must eFile. [Double-check with the OJD help desk or your local court clerk if you are unsure.]

A list of jurisdictions with SLRs (including links to the rules) can be found on the PLF website.  Select Practice Management > Forms > Docketing & Calendaring > “State Court Rules – UTCRs and SLRs.”

What is an Example of an SLR that Requires Arbitrators to File Documents?

By imposing conditions for filing awards, Multnomah County SLR 13.085 implies that the responsibility lies with the arbitrator:
(1) The arbitrator shall not file an arbitration award with the court until the issues of attorney fees and costs have been determined. The arbitrator shall certify on the award that no issues of costs or attorney fees remain undecided upon filing of the award. Unless otherwise ordered by the court, no amended or supplemental arbitration award shall be filed, regardless of whether judgment has been entered on the original.
(2) At the conclusion of arbitration, if the arbitrator attempts to file the award with the Court without the proof of service of a copy of the decision and award upon each party as required by ORS 36.425(1), the award will not be filed and will be returned to the arbitrator.

Key Points to Remember

  • If you previously filed awards and judgments with the court, nothing has changed. Filing is still your responsibility. The only difference is how you file, and that will depend on whether the jurisdiction has implemented eCourt.
  • Read the SLRs! At the present time, Multnomah County puts the onus on arbitrators, Washington County does not.
  • Know the UTCRs.  UTCRs govern where SLRS have not been adopted.
  • Communicate with the parties.  If it is the responsibility of the parties to eFile your award or judgment, say so and cite the pertinent UTCRs.

All Rights Reserved [2015] Beverly Michaelis

Oregon Judicial Department Help Desk –
Monday through Friday 7:00 am to 6:00 pm

503-986-5582 or 1-800-922-7391
ETSDHelp@ojd.state.or.us

Avoiding eCourt – Waivers and eFiling “Lawyer Buddies”

Oregon eCourt is nothing less than revolutionary.  It is transforming how we file pleadings, meet deadlines, pay filing fees, and access court documents.  For those who were hoping to retire or transition to another career before eCourt became mandatory, the change is especially rough.

Initially, eCourt requires an investment – buying a scanner and purchasing software.  It also demands that lawyers learn new technology and adapt to changing court rules and practices.

If you are on the cusp of making a transition away from the private practice of law, but fall within the boundaries of mandatory eCourt, you may want to delegate this task – or find an eFiling lawyer buddy.  Before you do, consider the following:

Is it ethically permissible to delegate eFiling?

Short answer: Yes, qualified.  (Read the remainder of this post.)

Whether you use an eFiling lawyer buddy (contract lawyer who tends to the eFiling responsibilities of the case) or a non-lawyer staff person, you have the right to give others access to your eFiling account.

On November 19, 2014, I co-presented the OSB-PLF CLE, Oregon eCourt Update, with Daniel Parr from the Oregon Judicial Department (OJD).  At that CLE, the following questions were posed:

Q: Should an assistant be the Administrator and then the Attorney be under that same registration? Or should a legal assistant have a separate account?

A: In general this decision is up to you. Your group should register as a firm or as a unit on the system, even if you are a solo practitioner. You can choose who to assign as a firm administrator, and this can be multiple individuals. Some firms have chosen to have staff log into attorney accounts, and other firms have chosen to have the staff set up accounts directly.

Q: Are there any ethical issues with having non-attorney staff handle filings?

A: Staff are permitted to assist with this process, and non-attorney staff are already eFiling on behalf of attorneys. Obviously it is up to the attorney to review and supervise any work done by non-attorneys, and the attorney is responsible for the result.

While we did not explicitly receive a question about using a contract lawyer to handle eFilings, the result is the same – contract lawyers (eFiling lawyer buddies) are permitted to eFile on behalf of the attorney of record.  As attorney of record, it is up to you to supervise your eFiling lawyer buddy, and you are responsible for the result.  There are some other considerations, discussed below.

Is it possible to avoid eFiling entirely?

Short answer:  Yes, upon “good cause” shown, with the court’s permission.  Any lawyer can apply for a waiver of the eFiling requirement.  The waiver may apply to an existing (singular) case (UTCR 21.140(3)(a)(ii)) or all cases in a given judicial district for a specific period of time. (UTCR 21.140(3)(a)(i)).  Lawyers seek a waiver for an existing case by filing a motion; for all cases in a specific judicial district by filing a petition.

If the court grants a petition waiving the eFiling requirement in a specific judicial district, “the person obtaining the waiver must file a copy of the court’s order in each case subject to the waiver; and include the words “Exempt from eFiling per Waiver Granted [DATE]” in the caption of all documents conventionally filed during the duration of the waiver.” (UTCR 21.140(3)(d) and (e)).

Using an eFiling lawyer buddy (contract lawyer)

If you decide to use a contract lawyer to eFile your cases, follow these guidelines:

  • Put it in writing.  As with all contract lawyering arrangements, document in writing the scope of the agreement, method of compensation, and other details.  For assistance with establishing contract lawyering relationships, see the checklist and documents available from the Professional Liability Fund (PLF).  On the PLF website, select Practice Management > Forms > Contract Lawyering.
  • Assess PLF coverage implications.  If the eFiling lawyer buddy is claiming an exemption from PLF coverage, he or she cannot operate independently and “take over” eFiling responsibility.  Contract lawyers who are exempt from coverage must function under PLF guidelines.  (For details, visit the PLF website.  Select Assessments & Exemptions > Exemptions, then “Law Clerk/Supervised Attorney Not Engaged in the Private Practice of Law.”)
    Your eFiling lawyer buddy is likely to be safe if she restricts her role to that of an assistant or secretary: uploading documents at the attorney of record’s direction, following the attorney of record’s instructions in selecting a filing code, etc.  The more independent your eFiling lawyer buddy becomes, the more likely she could be viewed as acting beyond the scope of the PLF contract lawyering exemption (if in effect).  The simple workaround: your eFiling lawyer buddy (aka contract lawyer) can obtain PLF coverage for more freedom in executing her duties.
  • Understand the acceptance/rejection process. As you define the scope of the eFiling lawyer buddy’s responsibilities, consider who will be responsible for processing and responding to acceptance and rejection notices issued by Tylerhost.net.  (Oregon’s eCourt vendor.)  For example, if the attorney of record eFiles a complaint on the day the statute runs and her filing is rejected, who will refile and seek relation-back?
    It stands to reason that each time an eFiling lawyer buddy files a document for the attorney of record, she needs to be engaged and available to assist with the filing until an acceptance or rejection notice is issued. This can take up to a week.  Specific terms should be added to the written contract lawyering agreement that address the eFiling lawyer buddy’s responsibility in rejection situations.  (Note: the attorney of record can instruct her eFiling lawyer buddy to add himself as a contact in order to receive acceptance/rejection notices generated by Tylerhost.net.)
  • Understand the court notice process.  Some lawyers who are tempted to hire an eFiling lawyer buddy might be operating under the misapprehension that they can completely avoid all associated technology.  However, court notices from the Oregon Judicial Department are sent only to the “filer,” in this case, the attorney of record.  The attorney of record is responsible for reviewing and acting upon court email on a timely basis.
  • Limit account access.  By necessity, an eFiling lawyer buddy will need access to the attorney of record’s eFiling account (Odyssey) operated by Tylerhost/Tyler Technologies. But this access can (and should be) limited in writing.  The eFiling lawyer buddy should only use the attorney of record’s eFiling account as needed, and at the express direction of the attorney of record.
  • Limit credit card access.  Ideally, the attorney of record will create the eFiling (Odyssey) account and enter the credit card information needed for payment of filing fees.  If the attorney of record needs assistance, she can call the Tyler Technologies support number and/or use the “GoToAssist” feature, allowing Tyler Technologies to take control of her computer to establish the account. This limits the eFiling lawyer buddy’s access to the attorney of record’s credit card account information.  Once the credit card information is entered, the eFiling lawyer buddy simply selects the payment account to pay filing fees.  If the eFiling account is configured properly, the eFiling lawyer buddy will not be able to see the credit card information.  The attorney of record should be the “administrator.”  The eFiling lawyer buddy should be a “user.”  Support staff at Tyler Technologies can help attorneys of record set up accounts using these distinctions.
    To further protect herself, the attorney of record should dedicate a specific credit card to use in paying eFiling fees.  By establishing a credit card solely for this purpose, it will be very easy to spot whether there is any inappropriate activity on the account.  The only charges that should ever appear on attorney of record’s billing statement are filing fees payable to OJD.
  • Provide proper supervision.  Regardless of how duties are divided, the real responsibility here still falls on the attorney of record.  This scenario presumes that the eFiling lawyer buddy’s role is to act only as a technical specialist.  The attorney of record must be sure at all times that eFiling lawyer buddy is doing his job.  The eFiling lawyer buddy is not responsible for the content or accuracy of documents filed; nor is it eFiling lawyer buddy’s responsibility to monitor filing deadlines.
  • Be aware of ethics traps in determining compensation. The attorney of record can cover the cost of using the eFiling lawyer buddy out of his own pocket as a cost of doing business.  If the attorney of record intends to bill clients for eFiling lawyer buddy’s services, the clients must consent.  The attorney of record should update his client fee agreements accordingly.  (Beware the limitations of modifying a fee agreement midstream – see OSB Formal Opinion 2005-97.)
    Alternatively, the attorney of record could also barter services in exchange, but should check in with OSB General Counsel about the ethics of such an arrangement.
    If the attorney of record plans to split her fees with the eFiling lawyer buddy, she must comply with the Oregon RPCs requiring disclosure and consent of the fee split to the client.

[All Rights Reserved – 2015 – Beverly Michaelis]

Submitting Your First eCourt Filing

Mandatory eCourt begins today for the eleven circuit courts that currently have the Oregon eCourt system.  In last week’s post, I described 10 steps to get ready for eFiling. Today I want to address how to manage the stress and anxiety of this transition.

Give Yourself Extra Time

I truly believe that once practitioners gain experience with eFiling, the transition will be embraced.  I appreciate that the road to gaining experience brings anxiety, especially since there is no way to “practice” with the Odyssey eFile & Serve system.

Knowing that the first filing or two might be a little nerve-wracking, please give yourself extra time.  You will become familiar with the process, but building familiarity and confidence takes time.  Don’t create extra pressure for yourself by waiting until the deadline date to file a document.  If your filing is rejected, you will need to seek relation back to cure the missed deadline.

If at all possible, file well in advance of the deadline.  If your filing is rejected, you will have time to breathe, fix the problem, and refile.

File During Business Hours When Support is Available

The Odyssey eFile & Serve system is available 24 hours a day, 7 days a week.  While it may be tempting to complete a filing at 10:00 p.m. Friday night, technical support staff are not available to assist you if something goes awry.

File during regular business hours, Monday through Friday, 7:00 a.m. to 9:00 p.m. Central Time when Tyler Technologies support staff can assist you.

Tyler Technologies support staff can walk you through:

  • Initiating a new filing
  • Filing into an existing case
  • eServing parties in a case

Tech support can also use “GoToAssist” to take control of your computer and help you complete an eFiling. Keep the support number handy: 1.800.297.5377 and don’t hesitate to use it.

Reach Out to Experienced Colleagues

If you know a colleague who has used the Odyssey eFile & Serve system system, ask for pointers.  There are practitioners in Yamhill, Crook, Jefferson, and a handful of other counties who have lived with eCourt for 18 months.  If you don’t know of someone personally who has used the system, posting to a listserv or contacting a Resource Lawyer through the Oregon State Bar Lawyer-to-Lawyer program may be an option.  (Note: eCourt is not a specific resource category in the Lawyer-to-Lawyer program, but Litigation is.)

[All Rights Reserved – 2014 – Beverly Michaelis]

 

Oregon eCourt: eFiling UTCRs Amended

On September 29, 2014, the following Uniform Trial Court Rules (UTCRs) were amended out-of-cycle pursuant to Chief Justice Order 14-049: UTCR 21.040, 21.050, 21.070, 21.080, 21.090, 21.100, and 21.120.  The changes are summarized below:

UTCR 21.040(2)

Simplifying the rules for filing documents:

“When a document to be electronically filed includes one or more attachments, including but not limited to a documentary exhibit, an affidavit, or a declaration, the electronic filing must be submitted as a unified single PDF file, rather than as a separate electronically filed documents, to the extent practicable. An electronic filing submitted under this section that exceeds 25 megabytes must comply with subsection (1) of this rule.” Also see UTCR 21.040(2)(c).

[Former UTCR 21.040(2) described a complex filing scheme with different rules for specific types of documents: motions to strike, motions for leave to amend, attachments to a petition for post-conviction relief, attachments to a Uniform Support Declaration.  Under revised UTCR 21.040(2) all filings are unified by default.  Over-size files must still be split.  Stand-alone affidavits or declarations are filed separately.  Otherwise, if they are attachments to another document, the entire document – along with its attachments – is filed as one unified PDF.]

UTCR 21.040(2)(a) and UTCR 21.040(3)

Adding new requirements regarding submission of electronic filings requiring court signature:

  • Orders, judgments, or other documents requiring court signature must be submitted separately from motions.
  • Filers must include appropriate information in the filing comments field for each submission. For example: “Motion for Summary Judgment” and “Proposed Order Granting Motion for Summary Judgment.”
  • Any electronically submitted document that requires a court signature must include a blank space “of not less than 1.5 inches and a blank line following the last line of text” to permit the court to affix a signature and signature date.

UTCR 21.040(2)(b)

Adding new requirements regarding submission of electronic filings that include confidential attachments:

  • If an electronic filing is not confidential but includes an attachment that is confidential (or exempt from disclosure), submit the attachment separately.
  • Filers submitting a confidential attachment must select the “confidential check box” after attaching the confidential document.
  • Filers must include appropriate information in the filing comments field for each submission. For example: “Motion for Stay” and “Confidential Attachment to Motion for Stay.”

UTCR 21.040(2)(c)

Clarifying requirements for filing affidavits and declarations:

  • Documents that include affidavits and declarations as attachments must be submitted as a unified single PDF under UTCR 21.040(2).
  • Affidavits and Declarations that are stand-alone documents (not an attachment to another document) are filed separately.

UTCR 21.070(3)(d)

Clarifying that motions for remedial contempt must be conventionally filed because they are created as new “criminal-base-type” cases in the eFiling system.

UTCR 21.070(3)(g) [Removed]

Permitting eFiling of amended pleadings that require payment of an additional filing fee.  Former UTCR 21.070(3)(g) required conventional filing of such documents. Also see UTCR 21.050(1) above.

UTCR 21.070(3)(l)

Adds petitions or motions for waiver of the mandatory eFiling requirement to the list of  documents that must be filed conventionally.

UTCR 21.070(3)(m)

Adds stipulated or ex parte matters listed in SLR 2.501 to the list of documents that must be filed conventionally. See Adoption of Oregon eCourt SLR Chapter 24 below.

UTCR 21.080(6)

Adds a new provision permitting relation-back of filings due to system unavailability, errors in transmission, or other technical problems that prevent the eFiling system from receiving a document.

UTCR 21.090 and 21.100

Housekeeping changes only, updating references to “subsections and “sections” for consistency throughout UTCR Chapter 21.

UTCR 21.120

Reducing the retention period of documents that contain the original signature of a person other than the filer from 10 years to 30 days.

Adoption of Oregon eCourt SLR Chapter 24

As part of going live with Oregon eCourt, a judicial district adopts uniform “Oregon eCourt” SLR Chapter 24. As a companion to new UTCR 21.070(3)(m), each court’s SLR Chapter 24 – 24.501 – will be updated to permit courts to adopt an SLR (2.501) that lists certain stipulated/ex parte matters that must be presented conventionally in that court, instead of eFiled. The SLR update will be part of the SLR chapter for Josephine, Marion, and Douglas Counties when they roll out Oregon eCourt in December 2014, and otherwise in the existing eCourt counties as they do the annual adoption of their SLRs. It provides as follows:

24.501 STIPULATED OR EX PARTE MATTERS MAY BE ELECTRONICALLY FILED

(1) Except as provided in subsection (2) of this rule, any stipulated or ex parte matter may be electronically filed for purposes of submitting to a judge for signature.

(2) SLR 2.501 is reserved for judicial districts to adopt a local rule regarding specific stipulated or ex parte matters for which the documents must be presented conventionally and may not be electronically filed.

[All Rights Reserved 2014 Beverly Michaelis]

 

 

 

eCourt Mandatory in Oregon Effective December 1

The following announcement was posted yesterday on the Oregon Judicial Department Web site:

Chief Justice Thomas A. Balmer, Oregon Supreme Court, has approved a plan for the move to a mandatory eFiling requirement for attorneys filing cases in Oregon’s circuit and appellate courts. The Oregon Judicial department will circulate proposed court rules in the upcoming months for comment. The plan calls for a mandatory date of December 1, 2014 for the eleven circuit courts that currently have the Oregon eCourt system, including the eFiling component (File and Serve), and includes a transition plan for those courts that implement later. [Emphasis supplied.]

Prior to the implementation of mandatory eCourt, OJD will publish the final version of the mandatory UTCR eFiling rules. The current UTCRs are available here, but expect changes in October.

If you are not already familiar with the eFile and Serve system, get training.  Yesterday’s OJD announcement included the following:

Webinars and other eFiling trainings are available for Bar members. The trainings are designed for people with varied levels of experience with Oregon’s eFiling system. CLE credit has been approved for some of the sessions, and additional trainings will be added as needed.

The attached Frequently Asked Question (FAQ) document has additional information, including a link to training dates and registration information. Additional information about eFiling and mandatory eFiling is on the OJD Web site.

You should also review the resources available from the Professional Liability Fund, including our collection of eCourt practice aids and our June 15 CLE: Survival Tips for Practicing in eCourt and Organizing Your E-Mail.  You may also search this blog for 10 posts on eCourt that served as inspiration for the PLF practice aids.

All Rights Reserved [2014] Beverly Michaelis