Filing (legal)
 |
This law-related article does not cite its references or sources. You can help Wikipedia by including appropriate citations, which can be found through legal research. |
 |
The neutrality of this article is disputed. Please see the discussion on the talk page. Please do not remove this message until the dispute is resolved. (December 2007) |
In law, filing is the act of submitting a document to the clerk of a court for the court's immediate consideration, for storage in the court's files, or both. Courts will not consider motions unless an appropriate memorandum or brief is filed before the appropriate deadline. Usually a filing fee is paid at the same time; such filing fees are one part of the variety of charges that are known as court costs.
Contents |
Filing systems
In civil procedure systems, filing rules can be mandatory or permissive. In a mandatory filing system, all documents of legal importance exchanged between the parties are also filed with the court, while in a permissive filing system, nothing needs to be filed until the case reaches a point where direct judicial management is absolutely necessary (such as the brink of trial).
For example, the United States federal courts operate on a mandatory filing system (with minor exceptions for the most routine discovery exchanges).1 In contrast, the U.S. state of New York is notorious for its permissive filing system, which was modified in 1992 but still largely operates in its traditional form in certain lower courts.2
Filing may also refer to submission of a form to a government agency, with or without an accompanying fee.
Filing methods
Filing traditionally has been performed by visiting a clerk at a filing window, paying a filing fee by cash, check, or credit card, and submitting the document to be filed in duplicate or even triplicate. The court stamps both copies with a large stamp that indicates the name of the court and the date the document was filed, then keeps one copy for the court's files and returns one copy to the filer for the filer's own records. In courts that require triplicate submissions, the third copy is then taken (either by the clerk or by the filer) to the chambers or courtroom of the judge assigned to the case.
A newer phenomenon is electronic filing, in which lawyers simply upload Portable Document Format electronic documents to a secure Web site maintained either by the court (for example, the U.S. has CM/ECF) or by a private commercial service like LexisNexis. This is convenient in that many courts can now accept filings at all hours, rather than only during regular business hours.
Filing fees
Generally, filing fees are controversial because they impede access to justice. Although American litigants complain about fees all the time (for example, it costs $300 to file a document in court in Los Angeles), the American system is considered to be quite plaintiff-friendly by lawyers.
Many legal systems have filing fees for complaints that are proportional to the amount sought. Thus, the greater the damages sought, the higher the fee to file.
Even when one seeks a waiver for grossly unfair fees, courts tend to waive only the amount in excess of the plaintiff's total assets, with the perverse result that just to initiate a meritorious case, an already severely injured or damaged plaintiff may have to go bankrupt. The inherent unfairness of this system as actually implemented in Austria resulted in a U.S. Supreme Court decision, Republic of Austria v. Altmann (2004).
References
- ^ See Rule 5(d)(1) of the Federal Rules of Civil Procedure.
- ^ David D. Siegel, New York Practice, 3rd ed. (St. Paul: West Group, 1999), 118-120. Professor Siegel points out that under this system, "it is possible ... for a case to come and go — such as by settlement — without the court having any record of the case at all."
 |
This legal term article is a stub. You can help Wikipedia by expanding it. |