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Calculating Time: Avoiding Traps for the Unwary - Solo Small Firm Practice News

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Solo Small Firm Practice News


Posted on: May 17, 2017

By John W. Mervilde, Meils Thompson Dietz & Berish

For all of the benefits and rewards of solo/small firm practice, one disadvantage is the lack of a formal in-house infrastructure for keeping up to date on changes in the law, particularly changes to procedural rules. This can be particularly challenging for lawyers who practice almost exclusively in state courts but occasionally find themselves in federal court. Federal district courts implemented e-filing in the early 2000s, and the rollout of civil e-filing in Indiana (now mandatory in Marion County and in all contiguous counties but Boone) should be to the long-term advantage to those who practice alone or in small firms. Against the backdrop of these changes, though, it is worth revisiting a simple but crucial aspect of civil litigation: calculating response time depending on the method of service.

Rule 6 of the Federal Rules of Civil Procedure and Rule 6 of the Indiana Rules of Trial Procedure govern the calculation of time in the respective court systems. Electronic case filing (ECF) in federal district courts began in 2002, but despite the instantaneous nature of service under ECF, Fed. R. Civ. P. 6 for many years allowed responding parties the same three-day “buffer” that is available to responding parties who are served by U.S. Mail. Federal Rule 6(d) used to say:

"When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire...”

Fed. R. Civ. P. 5(b)(2)(E) applies to service by: “sending it by electronic means if the person consented in writing....” Although this provision does not specifically mention the ECF system, courts applied it to the ECF system. Effective December 1, 2016, however, Federal Rule 6 was amended by deleting the reference to electronic filing, meaning that after nearly 15 years, the three-day buffer no longer applies to documents served via ECF.

The Indiana Trial Rules are a bit more straightforward. Indiana Trial Rule 6(E) applies the three-day buffer only when “the notice or paper is served on him by United States mail,” and therefore the three-day buffer does not apply and has never applied to electronic filings in state court. Nevertheless, for those who are vaguely familiar with the former federal rule, it might become confusing.

These rules are particularly of note for solo or small firm attorneys who practice only rarely in federal court, or only rarely handle civil matters. All attorneys, but particularly those who practice solo or in small firms, should be mindful of the need to properly train staff who are responsible for calendaring. A failure to properly follow these rules could be fatal to a particular motion or to the entire case (particularly in light of Indiana's strict summary judgment response requirements). Although these rules are not complicated, compliance is crucial.

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