eCourt Malpractice Traps 2017

Polish your Oregon eCourt knowledge and avoid potential malpractice traps with this 2017 CLE update.

Topics include:

  • Relation Back Malpractice Traps – Defining filing “acceptance,” notification of rejected filings, the process for seeking relation back, right to object, judicial discretion, system errors, multiple filing attempts, and what to do if your relation-back request is denied.
  • Ever-changing Rules and Software – Recent out-of-cycle amendments to the UTCRs, proposed UTCR changes for 2017, and upgrades to the Odyssey eFile & Serve software (Silverlight vs. HTML 5).
  • Common Reasons for Rejected Filings – A review of 12 of the most common filing errors and where to find OJD standards for electronic filings in circuit courts.
  • How to Avoid eCourt Malpractice Traps – Where and how to get help with OJCIN, eFiling, and questions about rules plus key resources from the Professional Liability Fund, Oregon Judicial Department, Odyssey, and others.

Date/Time/Location

Wednesday, April 5, 2017 from 10:00 a.m. to 12:00 p.m. Pacific Time.  This is a live, online webinar. Watch from your desktop computer or mobile device. Connect to audio via telephone or computer/device speakers.

Who Should Attend?

Lawyers, office managers, administrators, and staff.  If you want to avoid common malpractice traps, need a refresher on changes to the Uniform Trial Court Rules or eFiling software, or want to discover the most common mistakes made by Oregon eFilers, attend this CLE.

Does the Program Include Written Materials?

Yes.  Written materials will be distributed electronically to all registered attendees prior to the event.

Ask Questions/Participate in Live Polling

Questions are welcome during the live event.  Attendees are also encouraged to participate in live, anonymous polling.

Registration Fee

$25 – Visit the CLE Events page, click here, or choose the Register button below. Secure payment processing powered by Eventbrite. Visa, MasterCard, Discover, and American Express accepted. Program materials included in the registration price.

MCLE Credits
2.0 Practical Skills/General MCLE Credits pending.

Eventbrite - eCourt Malpractice Traps 2017

Can’t Attend?

Video and audio recordings of eCourt Malpractice Traps 2017 will be available to download along with the program materials following the April 5 CLE. Price: $25. Contact me for more information.

All Rights Reserved [2017] Beverly Michaelis

eCourt Malpractice Traps and Relation Back

eCourt is available twenty-four hours a day, seven days a week. Convenient? Absolutely! But with convenience comes risk.

Tempted by the generous schedule, Clickhere_medFLT_490x250it is easy to form the habit of postponing filing until shortly before midnight on the day the filing is due.

While far from ideal, last-minute filing will succeed if your document is accepted. But therein lies the trap. Acceptance is not instantaneous. It may take one to three court days before the clerk processes your document. What happens if the statute of limitations expires during this time?

If you receive notice that your filing was rejected after the statute of limitations has run, your only hope is to request relation back. Beyond strict compliance with the rules – which lay out a detailed scheme for resubmitting your filing and seeking relation back – there are other nuances in play. Handling relation back correctly means your client’s case goes forward. Mishandling relation back may result in a legal malpractice claim.

To understand what is at stake, and the specific steps you need to take, let’s begin by reviewing the filing process:

When is a Filing Accepted?

As noted above, eCourt filings are not automatically accepted when submitted. Every filing is reviewed by a court clerk:

  • If the court accepts the document for filing, the date and time of filing entered in the register relate back to the date and time the electronic filing system received the document. When the court accepts the document, the electronic filing system will affix the date and time of submission on the document, thereby indicating the date and time of filing of the document. UTCR 21.080(4).
  • If the court rejects a document submitted electronically for filing, the electronic filing system will send an email to the filer that explains why the court rejected the document, unless the filer has elected through system settings not to receive the email. The email will include a hyperlink to the document. UTCR 21.080(5).

Resubmitting a Rejected Filing

If you receive notice that your filing has been rejected after the statute or deadline is expired, follow UTCR 21.080(5)(a) to the letter. Correcting your original filing mistake and resubmitting your document is not enough to receive relation back.

To apply for relation-back to the original filing date, follow these steps:

  1. Diagnose and fix your filing error. The rejection notice issued by the electronic filing system will explain why the court rejected your document.
  2. Resubmit the document within 3 days of the date of rejection. If the third day following rejection is not a judicial day, then resubmit the filing the next judicial day. Resubmission means submission of the document through the electronic filing system or physical delivery of the document to the court. UTCR 21.080(5)(a).
  3. Include a cover letter with your resubmitted filing that contains the following information:
    1. the date of the original submission
    2. the date of the rejection
    3. an explanation of the reason you are requesting the date of filing to relate back to the original submission
    4. include the words “RESUBMISSION OF REJECTED FILING, RELATION-BACK DATE OF FILING REQUESTED” in the subject line of your cover letter. UTCR 21.080(5)(a)(i).
  4. If your resubmission is filed electronically the words “RESUBMISSION OF REJECTED FILING, RELATION-BACK DATE OF FILING REQUESTED” must also be included in the Filing Comments Field. UTCR 21.080(5)(a)(ii).

Mistakes Happen

If you apply for relation back and realize that you did not fully comply with UTCR 21.080(5)(a), what should you do? If you are within the three day window for resubmission, there is no harm in trying again. The rule does not limit filers to a single resubmission attempt.  Resubmit your filing a second time, with the proper cover letter and required information in the filing comments field. Be aware that getting relation back – even when you meet the technical requirements set forth in UTCR 21.080(5) – is within the court’s discretion and not guaranteed. While every effort is made to ensure uniform application of the rules, practices may vary from jurisdiction to jurisdiction. Furthermore, responding parties may object to a request for relation back within the time limits as provided by law for the type of document being filed. UTCR 21.080(5)(b).

These are important points for eFilers to grasp. Even if you fully and timely comply with UTCR 21.080(5), getting relation back is not an automatic right. Your best defense is to do it right the first time and follow the tips at the end of this article.

Technical Difficulties

There is one other basis for requesting relation back. If the eFiling system is temporarily unavailable or if an error in the transmission of the document or other technical problem prevents the eFiling system from receiving a document, the court may, upon satisfactory proof, permit relation back. UTCR 21.080(6).

A filer seeking relation back due to “technical difficulties” must follow the same steps as any other filer resubmitting a rejected filing. (See the steps described above in Resubmitting a Rejected Filing.) In addition, the filer is permitted to attach supporting exhibits that substantiate the system malfunction.

PRACTICE TIP:  Slightly different language is required in the cover letter and filing comments field if relation back is sought under UTCR 21.080(6): “RESUBMISSION OF REJECTED FILING, SUBMISSION UNSUCCESSFUL, RELATION-BACK DATE OF FILING REQUESTED.”

CAVEAT: Technical problems with the filer’s equipment or attempted transmission within the filer’s control will not generally excuse an untimely filing.
UTCR 21.080(6).

What If Relation Back is Denied?

If relation back is denied, contact the claims attorneys at the Professional Liability Fund.

Staying Out of Trouble

Avoid falling into the relation-back malpractice trap by following these tips:

[All Rights Reserved 2016 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]

 

Rejected Filings and Relation Back – Oregon eCourt Week

The rules for electronic filing deadlines in Oregon eCourt are set forth in UTCR 21.080, effective May 1, 2014. (See Chief Justice Order 14-012 dated March 31, 2014 adopting out-of-cycle amendments.) Among the most important are the provisions concerning rejected filings and relation back.

Accepted Filings Relate Back to the Date and Time Received

“If the court accepts the document for filing, the date and time of filing entered in the register relate back to the date and time the electronic filing system received the document. When the court accepts the document, the electronic filing system will affix the date and time of submission on the document, thereby indicating the date and time of filing of the document. When the court accepts a document for filing, the electronic filing system sends an email to the filer, unless the filer has elected through system settings not to receive the email.”
UTCR 21.080(4). [See the rule for other provisions.]

What Happens When a Document is Rejected

“If the court rejects a document submitted electronically for filing, the electronic filing system will send an email to the filer that explains why the court rejected the document, unless the filer has elected through system settings not to receive the email. The email will include a hyperlink to the document.” UTCR 21.080(5).
Practice Tip: Leave the default system settings alone to ensure you will receive rejection notices.Rejection notices are sent from Tyler Technologies, @tylerhost.net not from @ojd.state.or.us.

 

Can I Resubmit a Rejected Filing?

The short answer is “Yes.” But resubmitted documents will only receive relation-back if certain conditions are met.

Getting Relation Back When a Filing is Rejected or:
What if I’m Up Against the Statute of Limitations?

A filer who resubmits a document may request, as part of the resubmission, that the date of filing of the resubmitted document relate back to the date of submission of the original document to meet filing requirements. In the case of a last minute filing to beat the statute of limitations, this will be critical. However, relation back is ONLY available if the following conditions are met:

First, the filer must resubmit the document within 3 days of the date of rejection. “If the third day following rejection is not a judicial day, then the filer may resubmit the filing … the next judicial day.” Resubmission means “submission of the document through the electronic filing system … or physical delivery of the document to the court.” UTCR 21.080(5)(a).

Second, a filer who resubmits a document for purposes of relation back must include a cover letter that contains the following:

a)     the date of the original submission
b)     the date of the rejection
c)     an explanation of the reason the filer is requesting that the date of filing relate back to the original submission
d)     the words “RESUBMISSION OF REJECTED FILING, RELATION-BACK DATE OF FILING REQUESTED” must be in the subject line of the cover letter.” UTCR 21.080(5)(a)(i).

Third, if the resubmission is filed electronically the words “RESUBMISSION OF REJECTED FILING, RELATION-BACK DATE OF FILING REQUESTED” must be included in the Filing Comments Field. UTCR 21.080(5)(a)(ii).
Practice Tip: Use the specific language set forth in the rule and enter it in ALL CAPS.

Objecting to Relation Back

“A responding party may object to a request (for relation back) within the time limits as provided by law for the type of document being filed. For the purpose of calculating the time for objection provided by law under this subsection, if applicable, the date of filing is the date that the document was resubmitted to the court under subsection (a) of this section.” UTCR 21.080(5)(b).

Other Things to Know about UTCR 21.080

eFiling is Available 24/7

“A filer may use the electronic filing system at any time, except when the electronic filing system is temporarily unavailable.” UTCR 21.080(1).

Filing Deadlines – Generally

“The filing deadline for any document filed electronically is 11:59:59 p.m. in the time zone where the court is located on the day the document must be filed.”  UTCR 21.080(2).

When is a Document “Submitted?”

“The court considers a document submitted for an electronic filing when the electronic filing system receives the document. The electronic filing system will send an email to the filer that includes the date and time of receipt, unless the filer has elected through system settings not to receive the email.” UTCR 21.080(3).

Avoiding Rejected Filings

Give documents meaningful file names so they are easily identified and distinguished. Carefully review information entered into the eFiling system, including the document selected for uploading. When filing is complete, check the confirmation.

Be aware of applicable file size limitations (25 MB in Oregon). Jurisdictions vary, sometimes significantly. If you attempt to upload a document that is too large, your filing will be rejected and you may miss a deadline. Adobe Acrobat can help you properly split and label large files for uploading to eFiling systems.

Keep your credit card information current with the court. Required fees must be paid when documents are electronically filed. If your card has expired and the fees are not paid, your filing will be rejected even if the document was uploaded prior to the deadline.

Avoid the most common e-filing mistakes:

  • Entering incorrect party, event, or filing codes
  • Selecting the wrong case or location
  • Failing to associate the attorney with the filing party
  • Improperly filing exhibits – see the limitations in UTCR 21.070
  • Including sensitive or confidential information
  • Failing to separate documents – file motions and orders separately. Do not combine multiple documents of any kind into a single PDF unless allowed by UTCR Chapter 21.
  • Missing information – signatures missing or no party information entered
  • Submitting illegible documents – PDFs that are not text-searchable or PDFs scanned upside down
  • eFiling documents that must be filed conventionally, such as documents needing a judge’s signature or amended complaints that result in an increased filing fee. See UTCR 21.070 for a complete list of documents that are not eligible for eFiling.
  • Failing to pay fees or paying incorrect fees

Leave default system settings alone to ensure you will receive rejection notices. See the discussion above, “What Happens When a Document is Rejected” under
UTCR 21.080(5).

The Most Important Advice

Don’t eFile documents at the last minute. E-filing is a somewhat tedious process: you must log in, enter the appropriate field codes, pay applicable fees, select and possibly split your documents for filing, and so on. If you lose your Internet connection, your computer crashes or you encounter other technical difficulties, there is no time for recovery. Upload documents during regular business hours when technical support staff are available and you have sufficient time to remedy any technical glitches.

Train Now to Avoid Problems Later

Above all, get trained. User guides, reference guides, and rules can be found here. Free Web training sessions and self-study online training are available here.

Schedule a presentation on Oregon eCourt for your organization or agency. Call or e-mail:

Oregon Judicial Department
Office of Education, Training and Outreach
503-986-5911
oeto@ojd.state.or.us

Technical Support

Oregon Judicial Department Help Desk – Monday through Friday 7:00 am to 6:00 pm (Pacific)
503-986-5582 or 1-800-922-7391
ETSDHelp@ojd.state.or.us

OJIN Online Subscriber/Business Support – Monday through Friday 8:00 am to 5:00 pm (Pacific)
1-800-858-9658
OJIN.Online@ojd.state.or.us

File & Service/eFiling User Support – Monday through Friday 7:00 am to 7:00 pm (Mountain)
Tyler Technologies
1-800-297-5377
Efiling.support@tylertech.com

All Rights Reserved [2014] Beverly Michaelis

Common Malpractice Traps in a PI Practice

10-16-2013 12-37-48 PMPersonal injury generates the most frequent and costly legal malpractice claims in Oregon.

If you are a PI practitioner, watch out for these common traps:

Naming the Wrong Defendant
A thorough investigation of your client’s claim is essential.  Seek out corroborating documentation of the facts.  Take special care to properly identify parties – especially when using the
Business Registry to search for an assumed business name or corporate entity. (Many names are similar.) File your complaint well before the statute expires.  If you later discover that you misidentified the defendant, you should be able to file an amended complaint.

Omitting a Defendant
Even if you believe that you conducted a thorough pre-filing investigation of your client’s claim, it is still possible to miss a defendant.  Here is an example:  Your client is crossing the street and is struck by a car in the cross walk.  In working up your client’s claim, you instruct your investigator to interview the driver who is not represented.  Based on the statement taken by your investigator, the case appears straightforward:  pedestrian versus driver.  You file suit, naming the driver.  In the course of depositions, after the statute of limitations has run, you discover the driver was performing a work-related errand for her employer at the time of the collision.  You failed to name the employer as an additional defendant.  There are several lessons to learn from this scenario.  One of the most important is to file early!  If you learn of a second defendant before the statute runs, file an amended complaint.  Also take the time to review scenarios like this with your investigator and be sure he or she has adequate direction from you on how to conduct interviews.

Suing a Defendant who is Deceased
Failure to discover that the defendant passed away does not toll the statute of limitations.  Conduct a records search prior to filing.  Use resources like the
Oregon Judicial Information Network (OJIN) or Accurint to check court and public records.  If a probate estate has been established, name the estate as the defendant and serve the Personal Representative.

Not Knowing the Law
Claims involving minors often trip up practitioners.  Many believe that minority automatically tolls all statutes and tort claim filings until the minor reaches the age of 18.  This is not the case.  Do your research!  Use the
PLF’s Oregon Statutory Time Limitations handbook as a resource to verify the applicable deadline.  Every Oregon lawyer received a copy of this handbook in 2010.  A PDF of the book is available for download on the PLF Web site.

Missing the Statute of Limitations
The first defense in avoiding a blown statute is to know the law.  As suggested above, use the
PLF’s Oregon Statutory Time Limitations handbook as a resource.  Even if you think you know the statute of limitations, check again.  The second defense is to establish reliable calendaring and file tickling systems that remind you of upcoming deadlines and prompt you to move cases forward.  Consult the PLF’s docketing and calendaring practice aids available online or download and review our book, A Guide to Setting Up and Running Your Law Office, also available online.  Third, always file well in advance of the statute.  Am I beginning to sound like a broken record?  Filing early allows time to recover from the mistakes described above.

Failing to Timely Complete Service
Put the summons and complaint in the hands of your process server on the day you file your complaint or as soon thereafter as possible.  Create a reminder or task to follow-up with your process server 10 days later.  If the defendant is avoiding service or if your server is having difficulty locating the defendant, you need to know early on so you can pursue alternate service methods.  If the defendant is not personally served, be sure you comply with any additional steps that must be taken.  For example, if substituted or office service is obtained, follow-up service by first class mail is required.  Lastly, remember that ALL service steps, including mailings, must be completed within Oregon’s 60 day window for service of process.

Other Resources for Personal Injury Practitioners
The PLF offers 19 litigation/personal injury forms on our Web site, including a civil litigation checklist, service of process checklist, common civil litigation time limitations, and a settlement/judgment disbursal checklist.  We also have many articles dedicated to helping PI practitioners avoid potential malpractice.  An archive of PLF In Brief articles dating back to the year 2000 is available on the PLF Web site.  Additionally, in May 2013 we held Malpractice Traps for Lawyers Handling Personal Injury Cases.  This CLE and the accompanying handout are available to order on the PLF Web site.

Call the PLF for Help 1-800-452-1639
If any of the above happens to you, or if you are concerned for any reason that you may have committed malpractice, call our office.  Ask to speak to one of the claims attorneys on call. 

If you would like assistance with setting up a reliable calendaring or file tickling system, ask to speak to a PLF practice management advisor. 

All PLF services are confidential.

All Rights Reserved – Beverly Michaelis [2013]