In
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the ar ...
, filing is the delivery of a document to the
clerk
A clerk is a white-collar worker who conducts record keeping as well as general office tasks, or a worker who performs similar sales-related tasks in a retail environment. The responsibilities of clerical workers commonly include Records managem ...
of a
court
A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...
and the acceptance of the document by the clerk for placement into the official record. If a document is delivered to the clerk and is temporarily placed or deposited with the court (but is not accepted for filing), it is said to have been lodged with or received by the court (but not filed). Courts will not consider
motions unless an appropriate memorandum or
brief is filed before the appropriate deadline. Usually a filing
fee is paid which is part of
court costs.
Filing systems
In
civil procedure
Civil procedure is the body of law that sets out the rules and regulations along with some standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or ca ...
systems, filing rules can be mandatory or permissive. In a mandatory filing system, ''all'' documents of legal importance exchanged between the parties must also be concurrently 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
The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the Constitution of the United States, United States Constitution and Law of the United States, laws of the fed ...
operate on a mandatory filing system (with minor exceptions for the most routine
discovery
Discovery may refer to:
* Discovery (observation), observing or finding something unknown
* Discovery (fiction), a character's learning something unknown
* Discovery (law), a process in courts of law relating to evidence
Discovery, The Discovery ...
exchanges). In contrast, from the reign of
Edward IV
Edward IV (28 April 1442 – 9 April 1483) was King of England from 4 March 1461 to 3 October 1470, then again from 11 April 1471 until his death in 1483. He was a central figure in the Wars of the Roses, a series of civil wars in England ...
during the late 1400s to the late 1990s (that is, before the 1998 promulgation of the
Civil Procedure Rules
The Civil Procedure Rules (CPR) were introduced in 1997 as per the Civil Procedure Act 1997 by the Civil Procedure Rule Committee and are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Court in civi ...
), the trial
courts of England and Wales
The Courts of England and Wales, supported administratively by His Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales.
Except in constitutional matters, ...
normally did not maintain comprehensive pretrial case files (beyond recording the issuance of a writ to initiate a legal proceeding).
Instead, after service of a writ, the parties merely served their pleadings on each other, then at some point in time, one party would ask the court to set down the case for trial (that is, put the case on a list of cases awaiting the setting or "fixture" of trial dates) and lodge two copies of the pleadings with the court (along with other documents relevant to the planned trial).
Even after they had been lodged (i.e., temporarily deposited) with the court, the pleadings were not filed immediately. Rather, one copy was for the personal use of the judge, while the other copy would be officially filed ''after'' the trial together with the judgment to establish the court's permanent record of the issues that had been formally adjudicated at trial.
In the United States, a permissive filing system has persisted to the present in the
state
State most commonly refers to:
* State (polity), a centralized political organization that regulates law and society within a territory
**Sovereign state, a sovereign polity in international law, commonly referred to as a country
**Nation state, a ...
of
New York, which was modified in 1992 but still largely operates in its traditional form in certain lower courts.
[ 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."]
Filing may also refer to submission of a
form to a
government agency
A government agency or state agency, sometimes an appointed commission, is a permanent or semi-permanent organization in the machinery of government (bureaucracy) that is responsible for the oversight and administration of specific functions, s ...
, 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. For each document filed, the court clerk inspects the document to ensure compliance with the court's rules on how legal documents should be formatted, verifies that the filer has not been declared a
vexatious litigant, and confirms that the case number and caption are for a valid case.
Next, the court clerk then 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 certain jurisdictions, the clerk will stamp duplicate copies returned to the filer as "file-conformed" or "conformed copy" rather than "filed". These stamps mean the duplicate copy appears to conform to the appearance of the original document, and in turn, a copy bearing such a stamp can be submitted with later filings as evidence of the earlier act of filing. But the "filed" stamp is reserved for the original document that goes into the court file, and will be seen outside that file only if one obtains a certified copy photocopied directly from the original document on file.
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. The clerk then adds the document to the
docket for the case as well as any related deadlines or events.
If the document is the first pleading filed in a case (usually the
complaint
In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party ...
), the court clerk also assigns a new case number and opens a new file for the case.
A newer phenomenon is electronic filing, in which lawyers simply upload
Portable Document Format
Portable document format (PDF), standardized as ISO 32000, is a file format developed by Adobe in 1992 to present documents, including text formatting and images, in a manner independent of application software, hardware, and operating syste ...
electronic documents to a secure
website
A website (also written as a web site) is any web page whose content is identified by a common domain name and is published on at least one web server. Websites are typically dedicated to a particular topic or purpose, such as news, educatio ...
maintained either by the court (for example, the U.S. has
CM/ECF) or by a private commercial service like
LexisNexis
LexisNexis is an American data analytics company headquartered in New York, New York. Its products are various databases that are accessed through online portals, including portals for computer-assisted legal research (CALR), newspaper searc ...
. This is convenient in that many courts can now accept filings at all hours, rather than only during regular business hours. Where e-filing is in effect, the filer is normally required to lodge a "courtesy copy" (that is, a conventional paper copy) at the chambers of the assigned judge by the next business day. The courtesy copy of the filing is merely used to decide the motion at issue and is discarded when no longer needed, since the electronic file is now the court's master copy of the case file.
Filing fees
Generally, filing fees are controversial because some individuals believe that they impede access to
justice
In its broadest sense, justice is the idea that individuals should be treated fairly. According to the ''Stanford Encyclopedia of Philosophy'', the most plausible candidate for a core definition comes from the ''Institutes (Justinian), Inst ...
. Although American
litigants complain about fees all the time (for example, it costs $435 to file a complaint in
Los Angeles
Los Angeles, often referred to by its initials L.A., is the List of municipalities in California, most populous city in the U.S. state of California, and the commercial, Financial District, Los Angeles, financial, and Culture of Los Angeles, ...
), the American system is considered to be quite
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...
-friendly by experts on
comparative law
Comparative law is the study of differences and similarities between the law and legal systems of different countries. More specifically, it involves the study of the different legal systems (or "families") in existence around the world, includ ...
.
[ In explaining the relative paucity of product liability litigation outside of the United States, Professor Reimann notes: "In the United States, it is cheap to file a lawsuit."]
Many legal systems have filing fees for complaints that are ''proportional'' to the amount sought. Thus, the greater the
damages
At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognized at ...
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
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...
's total assets, with the result that just to initiate a meritorious case, an already severely injured or damaged plaintiff may have to go
bankrupt
Bankruptcy is a legal process through which people or other entities who cannot repay debts to creditors may seek relief from some or all of their debts. In most jurisdictions, bankruptcy is imposed by a court order, often initiated by the de ...
. What some consider to be the inherent unfairness of this system as actually implemented in
Austria
Austria, formally the Republic of Austria, is a landlocked country in Central Europe, lying in the Eastern Alps. It is a federation of nine Federal states of Austria, states, of which the capital Vienna is the List of largest cities in Aust ...
resulted in a
U.S. Supreme Court decision, ''
Republic of Austria v. Altmann'' (2004).
References
{{DEFAULTSORT:Filing (Legal)
Judicial legal terminology
Legal procedure
Civil procedure legal terminology
Criminal law legal terminology
American legal terminology