Proposals for new mandatory eFiling programs in New York

Here are some important opportunities for public comments regarding proposals for new mandatory eFiling programs in several counties in New York State. Please see below and the attached links.

3^rdJudicial District

September 18, 2019:
Albany County Supreme Court. All new civil actions and proceedings, (except those specified), to be electronically filed, effective November 20, 2019.
Description of Proposal
Email to: efilingcomments@nycourts.gov
By November 1, 2019

September 18, 2019:
Columbia County Supreme Court. All new civil actions and proceedings, (except those specified), to be electronically filed, effective November 20, 2019.
Description of Proposal
Email to: efilingcomments@nycourts.gov
By November 1, 2019

September 18, 2019:
Rensselaer County Supreme Court. All new civil actions and proceedings, (except those specified), to be electronically filed, effective November 20, 2019.
Description of Proposal
Email to: efilingcomments@nycourts.gov
By November 1, 2019

September 18, 2019:
Ulster County Supreme Court. All new civil actions and proceedings, (except those specified), to be electronically filed, effective November 20, 2019.
Description of Proposal
Email to: efilingcomments@nycourts.gov
By November 1, 2019

4th Judicial District

September 18, 2019:
Clinton County Supreme Court. All new civil actions and proceedings, (except those specified), to be electronically filed, effective November 20, 2019.
Description of Proposal
Email to: efilingcomments@nycourts.gov
By November 1, 2019

September 18, 2019:
Saratoga County Supreme Court. All new civil actions and proceedings, (except those specified), to be electronically filed, effective November 20, 2019.
Description of Proposal
Email to:efilingcomments@nycourts.gov
By November 1, 2019

5th Judicial District

September 18, 2019:
Herkimer County Surrogate’s Court. All new probate and administration proceedings and miscellaneous proceedings related thereto, to be electronically filed, effective November 20, 2019.
Description of Proposal
Email to: efilingcomments@nycourts.gov
By November 1, 2019

6th Judicial District

September 18, 2019:
Delaware County Supreme Court. All new civil actions and proceedings, (except those specified), to be electronically filed, effective November 20, 2019.
Description of Proposal
Email to: efilingcomments@nycourts.gov
By November 1, 2019

The NY Office of Court Administration is seeking comments from the public and members of the legal profession regarding the following proposal:

October 1, 2019: Request for Public Comment on Proposed Rules for Electronic Filing in New York City Civil Court
Description of proposal
Email to: rulecomments@nycourts.gov
by November 29, 2019

NYS Chief Judge Proposes Constitutional Reforms to Simplify NY’s Outdated Trial Court Structure

See attached.  https://ww2.nycourts.gov/sites/default/files/document/files/2019-09/PR19_22.pdf 

United State District Court, Southern District of New York:

New Magistrate Judge Sarah Cave assumes seat previously occupied by retired Magistrate Judge Henry Pitman.

See attached for her Individual Rules of Practice, Report of Rule 26(f) Meeting and Proposed Case Management Plan , Report of Rule 26(f) Meeting and Proposed Case Management Plan For Pro Se Cases, and Settlement Procedures.

Technology in the Courtroom

Don’t Miss Your Chance to Make a Lasting Impact at Trial

by Audrey Priolo, Litigation Review Attorney

Despite the acceleration of technology in our daily lives, technology is still underused in the courtroom.  While using an ELMO to project trial exhibits is virtually an extinct practice, most trial lawyers still fail to use technology to its fullest capabilities.  My prior firm was committed to using technology in trial to give jurors an accessible way to understand our case.  As part of that practice, videotaping every deposition was a necessity.  Deposition video is essential in case the deponent becomes unavailable for trial and to create impactful impeachment of opposing witnesses.  Most jurors tune out when an attorney opens a deposition transcript and starts reading.  However, jurors pay close attention when a witness testifies, and impeachment video is played.  Imagine a juror hearing a witness testify with an overwhelming yes response, and a moment later the jurors get to see the same witness on video saying an astounding no to the same question. Technology, when used correctly, makes a lasting impact on jurors.  As video deposition testimony becomes more prevalent in the courtroom, it is important for attorneys to familiarize themselves with the applicable deadlines to ensure they don’t miss their opportunity to present electronic depositions.

California Rule of Court 2.1040 gives deadlines for electronic recordings offered into evidence. CRC 2.1040 requires:

• A party to lodge a transcript of the deposition testimony before electronic recordings are offered into evidence.

• At the time the recording is played, the deposition transcript must be identified on the record.

• To preserve the electronic testimony for the trial record and potential appeal, there are two options:

(1) The court reporter can transcribe the recording into the record (however, the court reporter is not required to transcribe the electronic recording unless ordered by a trial judge, see CRC 2.1040(d)); or

(2) At the close of evidence or five calendar days after the electronic testimony is offered into evidence (whichever is later), the party must serve and file a copy of the transcript cover and a copy of the pertinent pages marked to show the testimony used.

Further, it is imperative to know the applicable local and judge’s rules. For example, Los Angeles County Local Rule 3.158 requires counsel to obtain leave of court before playing video depositions.  Additionally, counsel must inform the court and opposing counsel of the portions that will be used and give opposing counsel a reasonable opportunity to object.  If you miss these deadlines, you will likely also miss your opportunity to make a lasting impression on the jury.

Audrey L. Priolo is a licensed California attorney with over 13 years of litigation and trial experience, who now works at American LegalNet as a Litigation Review Attorney. Questions can be addressed to her at apriolo@alncopr.com

Not Less vs. Not Later
by Audrey Priolo, Litigation Review Attorney

In most jurisdictions, legal deadlines usually roll forward or backward when the deadline falls on a weekend or holiday.  As discussed in my prior article, this concept of rolling can be deceptively simple.  Yet another question is – do you still roll a deadline when the code says, “no later than,” “not more than,” or “not less”?  The answer is, as with almost every legal question, sometimes.

As you may recall, California Code of Civil Procedure Sections 12 and 12a codify the rolling of deadlines for California State Court.  CCP 12a was enacted to extend legal deadlines the time that parties are deprived of public offices for the transaction of business.  Laubisch v. Roberdo, 43 Cal. 2d 702, 710, 277 P.2d 9, 14 (1954).  It would make sense that all deadlines would be modified by holidays, right.  Of course, it cannot be that easy.

In California, this question goes all the way back to the 1800’s.  In 1896, the California Supreme Court found that the CCP 12 roll should not apply because the Code stated “not less” than 30 days.  See Griffin v. Dingley, 114 Cal. 481, 483, 46 P. 457, 457 (1896).  California courts still cite Griffin over a hundred years later.  However, courts have now distinguished the difference between “not less” from “not later than.”  For example, Tran v. Fountain Valley Cmty. Hosp., 51 Cal. App. 4th 1464, 1466–67, 60 Cal. Rptr. 2d 91, 92 (1997), declined to follow Griffin indicating that a code requiring a backward calculation is distinguishable from a date calculated forward.  Tran supported applying the CCP 12 roll to dates calculated after an event.  See also DeLeon v. Bay Area Rapid Transit Dist. (1983) 33 Cal.3d 456, 458–459, 189 Cal.Rptr. 181, 658 P.2d 108.

This is only a basic look at a few situations that courts have reviewed in California.  Each code may use unique and distinctive language not expressly covered by these cases.  As always, it is best to use the most conservative date to ensure that at deadline is not missed. It is always better to beat a deadline than miss a deadline.

Audrey L. Priolo is a licensed California attorney with over 13 years of litigation and trial experience, who now works at American LegalNet as a Litigation Review Attorney.  Questions may be directed to apriolo@alncorp.com

Let’s Face It, Court Filing Is A Mess… These Folks Can Help You Navigate It With Ease

Here is a great article from Joe Patrice at Above the Law about ALN’s new offiering, eFiling Portal.  It brings the whole eFiling workflow under one suite.  In a nutshell, end-to-end eFiling.

Click HERE to read the full article.

Signed, Sealed, Delivered

Here is another video in our series ALN Risk Management Learnings by Audrey Priolo, a Litigation Review Attorney at American LegalNet. Questions may be directed to apriolo@alncorp.com. 

Click on the video below!

http://54.149.68.17/wp-content/uploads/2019/09/signed-sealed-delivered-.mp4

Don’t Miss a Complex Case Deadline Due to LASC eFiling Changes

By Audrey Priolo, Litigation Review Attorney

Los Angeles Superior Court changed the deadline for mandatory eFiling in complex civil matters from July 1, 2019 to January 1, 2020.  Unlike limited and unlimited civil, there is only a mandatory phase for Complex Civil eFiling. Until January 1, 2020, documents should still be filed at the clerk’s office of via fax filing.  On January 1, 2020, complex documents must be electronically filed.

Unlimited civil matters have been under mandated eFiling since January 2, 2019.  Originally, the Court set the eFiling deadline for complex civil cases on the same date as unlimited civil cases.  However, the Court previously extended the deadline to July 1, 2019, and now to January 1, 2020. 

Accordingly, law firms are forced to navigate calendaring differences between complex and unlimited civil cases until 2020.  While this may seem simple, there is potential for calendaring disasters.  I am sure that you and your firm have never had a last-minute pleading where someone eFiled past the 4:30 p.m. fax filing cutoff. Certainly, all attorneys in your firm prepare their pleadings at least one court day before the filing deadline, so any last-minute details like a table of authorities may be prepared.  Just in case you know an attorney that procrastinates or is the type to submit an eFiling at 11:59 p.m., it is important to remember complex matters cannot be eFiled.  There is more than a seven-hour disparity between the deadline for a fax filing (4:30 p.m.) and an eFiling (11:59 p.m.).   If a pleading is too large for fax filing, the differential becomes even greater and depends upon your firm’s filing practices.  If firms do not identify complex cases and create different policies and practices for complex cases, there will come a time where a deadline is missed because someone assumed they had until the stroke of midnight.

Additionally, there is potential for firms to waste time and resources if complex cases are not designated. If a complex case is not treated different from unlimited matters, there could be significant time spent creating unnecessary hyperlinks in pleadings that are not transmitted electronically. This is time that could be spent fine tuning the brief or finding another case to bolster an argument.

Consequently, it is critical for law firms to create safeguards to ensure complex cases are not handled the same as unlimited civil cases.  Further, firms should ensure that all attorneys and staff are aware that all deadlines uniform to provide a safeguard against missed deadlines. 

Audrey L. Priolo is a licensed California attorney with over 13 years of litigation and trial experience, who now works at American LegalNet as a Litigation Review Attorney. Questions may be directed to apriolo@alncorp.com

Click on the video below!

Meet Audrey Priolo, Litigation Review Attorney

Meet Audrey Priolo, a Litigation Review Attorney at American LegalNet . She is one of over a dozen attorneys who work on the Court Rules every day to make sure you have the most current and accurate rules possible. She is looking forward to meeting you at the NDA conference next week in Denver.

Click on the video below!

http://54.149.68.17/wp-content/uploads/2019/09/NDA-Intro.mp4

Rolling, Rolling, Rolling, Keep Those Deadlines Rolling

by Audrey Priolo, Litigation Review Attorney

On July 4, Southern Californians felt the unsettling feeling of a 6.4 rolling magnitude earthquake.  My heart certainly skipped a beat for a moment waiting to see if the “big one” was coming.  Similarly, many attorneys have had the same heart stopping feeling about procedural deadlines.  To avoid these panic moments, it is important to know the minutiae of legal deadlines.

Most legal professionals are fully aware of the existence of codes that roll procedural deadlines falling on weekends and holidays.  For example, Federal Rule of Civil Procedure 6(a)(1)(C) states, “if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” In California, Code of Civil Procedure Section 12a, gives the applicable rule, “If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday.”  Ostensibly, these rules seem simple.  However, not all rolling statutes can be treated equally.  When a second procedure rule is layered onto the first, things become much more complex.

Start with the Federal service offset.  FRCP 6(d) states:

Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a (emphasis added).

Compare California Code of Civil Procedure’s service offset.  CCP 1013(a) states:

“…but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail,…” (emphasis added).

Notice that the FRCP indicates the service offset is added after the original calculation would expire, but the CCP states the time period is extended.  Accordingly, calculations in California State Court and California Federal Court cannot be treated the same.  In order to ensure that the FRCP is fully abided by, a party must complete the full time calculation, including a weekend/holiday roll (if applicable) – then the service offset is added and another weekend/holiday roll is applied (if applicable).  However, in California, the weekend/holiday roll is only applied once.

Each jurisdiction gives differing language regarding how service offsets should be applied.  Accordingly, it is important for diligent practitioners to check each jurisdiction to ensure legal filings are in full compliance and procedural deadlines are properly calculated. Further, it is always possible that individual courts will interpret cases and codes uniquely.  Therefore, it is always the best practice to use the most conservative deadline possible to ensure that a deadline is met and not missed.

Audrey L. Priolo is a licensed California attorney with over 13 years of litigation and trial experience, who now works at American LegalNet as a Litigation Review Attorney.  Questions may be directed to apriolo@alncorp.com

Click on the video below!