Appellate E-Filing has Arrived – or – I Have to Pass Another Test?!
May 14, 2015
Luddites, beware! Techies, the time for celebration is here! Appellate e-filing has arrived to the Minnesota courts. The Minnesota Appellate E-Filing Application (E-MACS) is up and running. As of March 1, 2015, attorneys may e-file in all appellate case types in which the parties are represented by an attorney admitted to practice in Minnesota.
Yes, you accurately read that language as permissive. For now. E-filing is not yet mandatory in the Minnesota appellate courts. The writing is on the wall that it soon will be mandatory however. Even though appellate e-filing is optional for the time being, the time is right for appellate practitioners to welcome this important development. Here are five reasons why you should embrace e-filing in our state’s appellate courts.
1. E-filing Saves Time and Money
Appellate e-filing promises a lot of benefits for appellate practitioners and for our clients. E-filing brings greater access to the courts. E-MACS is available 24 hours, 7 days a week, and enables filing even when the clerk’s office is closed.
E-filing is not, however, an excuse to file at the last minute. As the Seventh Circuit noted in Justice v. Town of Cicero, 682 F.3d 662, 664 (7th Cir. 2012), electronic filing may extend the number of hours in which a filing can be made, but it does not extend the deadline itself. In that case, the appellant had filed a motion for reconsideration under Rule 59(e) at 3am the day after the filing was due. He asked the district court to treat the motion as timely made, and the court decided that it would accept the motion as timely, but then denied it on the merits.
The Seventh Circuit would have none of it. Judge Frank Easterbrook, writing for the court, stated:
Justice’s appeal allows a challenge to the October 25 order only if the 3 AM filing was timely without aid from the district judge’s order. Yet it does not take a reference to Cinderella to show that midnight marks the end of one day and the start of another. Electronic filing systems do extend the number of hours available for filing. Instead of having until the clerk’s office closes, litigants have until 11:59 PM. But e-filing does not increase the number of days available for filing. A document entered into the electronic system at 12:01 AM on a Thursday has been filed on Thursday, not on “virtual Wednesday.” Rule 6(a)(4)(A) is explicit on this point. It says that the last day allowed for filing ends “for electronic filing, at midnight in the court’s time zone”. Just as courts lack the power to grant extensions of time under Rule 6(b)(2), so the judiciary lacks the power to say that one day ends at 4 AM or 9 AM of the next day when an e-filing system is used.
Justice v. Town of Cicero, 682 F.3d at 664. See, e.g., Hunt, Kay Nord and Magnuson, Eric J. (1993) “Ethical Issues on Appeal,” William Mitchell Law Review: Vol. 19: Iss. 3, Article 6, available at here. Moral of the story – don’t wait until the last minute to file, even if you are e-filing.
Once we all get this e-filing thing down, we can also expect the number of paper copies of briefs and supporting documents to continue to be reduced. Standing orders from the Minnesota Court of Appeals and Supreme Court, also available on the clerk’s website, set out how many paper copies are needed for each court, and we can expect these numbers to continue to shrink as more and more judges prefer to review submissions electronically. This will reduce further appellate costs.
2. Technology is Not Optional
With the potential cost savings to the courts and to parties, e-filing is here to stay. The technology train is leaving the station, and you need to be on it. Attorneys who have refused to register for e-filing despite repeated warnings can earn the ire of the courts, and cost their clients their day in court. Consider for instance the sad case of Freeman v. Wyeth. Ms. Freeman’s tort claims were dismissed and the dismissal affirmed by the Eighth Circuit because her attorney failed to register for electronic filing in the MDL court in which her case had been consolidated. The court bemoaned the “unfortunate outcome that Freeman will not receive her day in court due to her attorney’s apparent professional carelessness,” but was resolute that where the attorney had been instructed to register in the MDL, failed to do so, and failed to meet deadlines for subsequent pleadings in the MDL, the court was within its discretion to dismiss the case.
3. Technology is Your Professional Responsibility
The requirement that a lawyer maintain her or his competence is nothing new. The duty of competence is nothing new, and it has always been an issue in the complex world of appellate practice. See, e.g., Hunt, Kay Nord and Magnuson, Eric J. (1993) “Ethical Issues on Appeal,” William Mitchell Law Review: Vol. 19: Iss. 3, Article 6, available at here.Comment 8 to Rule 1.1 of the Minnesota Rules of Professional Conduct, addressing this duty of competence, now also expressly requires technical competency. The comment states that in order “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.” This change mirrors the language added as Comment 8 to Rule 1.1 of the ABA Model Rules of Professional Conduct in 2012.
4. You Will Pass the Test The test isn’t that hard. What test, you say? Yes, that’s right. You have to pass a test in order to become an authorized E-MACS user and file your briefs and other appellate documents electronically. Why, you say? The official reason is “[t]o promote understanding of the rules and methods for using E-MACS.” See E-MACS Frequently Asked Questions.
Unofficially, we suspect they know it will drive us Type-A lawyers nuts to have to pass a test. And more importantly, they know that we will take this e-filing stuff more seriously, and not just delegate the task to our legal assistants, if we personally have to pass a test.
We know, you thought after that pesky bar examination, that you were done with tests. Forever. We thought so too. But we got over it, and we “studied” for the test, and passed it. You will too.
Here are a few tips for passing the E-MACS test. Review the E-MACS User Manual. Review even more carefully the much shorter E-MACS FAQ’s, available at the link above. Then, not long after your review of the FAQ’s, take a deep breath and go for it. Sure, we know some really smart people who didn’t pass it the first time. So what!? You can take it again. As many times as you need. It’s only ten multiple-choice questions and you have to get eight correct to pass. (Note that we have “a friend” who attests that the ten you get changes each time you take the test, so re-read those FAQ’s.) But seriously, you will pass the test. No problem.
5. Help is Available
You’re not in this alone. The Clerk of Appellate Courts has a number of user-friendly documents on its website, and if those don’t answer your question, has provided a telephone help line available too. In addition, in June, the MSBA Appellate Practice Section will be sponsoring two free training sessions on the E-MACS system, one in Minneapolis and one in St. Paul. More details on those trainings will be available soon. There is a new day dawning. Technology is here to stay. Embrace it. Don’t count on it to make the days longer, but do count on it to make your filing and service tasks quicker and easier. In the end, it helps the courts, which helps the clients, which is what we all want.
Reprinted with permission of Minnesota Lawyer ©2015
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Katherine Barrett Wiik
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