(Part 1 of LPI’s “Back to Basics” Legal Procedure Series)
Calendaring/docketing is one of the most important tasks we perform as legal professionals, yet it is also one of the most common causes of errors in a law office. Every area of law has its own set of deadlines or dates that must be adhered to, and if your attorney or office deals in more than one practice area, it can be especially challenging. The deadlines in corporate law are significantly different than what we see in civil practice, as are deadlines in bankruptcy, probate, family law, intellectual property, workers compensation, etc.
Most deadlines are very unforgiving. We are either on time or we are not, and the consequences for being late can be severe. Therefore, calendaring deadlines accurately deserves our undivided attention and an extra careful review.
A Master Calendar is critical to law offices and attorneys in order to ensure that all statutory and court deadlines are preserved for the protection of clients’ legal rights, as well as hearing dates, trial dates, depositions, meetings, and appointments. One of the most common reasons for malpractice lawsuits against attorneys is missed deadlines. In this digital age, it is hoped that law offices are using docketing software or case management software that includes calendaring/docketing capabilities.
Most law offices either have a docketing clerk or a docketing department that handles most of the office’s calendaring responsibilities, including creating/entering events, generating reports and firmwide electronic calendar reminders. It is your job to work with the docketing clerk/department to make sure items get entered into the system promptly, as well as reviewing the docketing entries/notifications/reports to make sure they are correct.
Your docketing clerk/department should be generating electronic reports to you and your attorneys each week for the coming week or two listing all of the upcoming deadlines and reminders covering that period. If docketing does not do this, perform your due diligence by taking the initiative to create/generate such a report yourself. Even if you simply create a PDF of all the days that have deadlines/reminders on your calendar and email it to your attorneys, you are prompting them (and yourself) to look ahead at what’s due so that things are not missed.
YOUR CALENDAR AND YOUR ATTORNEYS’ CALENDARS
The deadlines, reminders, trial dates, hearing dates, etc., on your attorneys’ calendars should match what’s on your calendar. Part of your job is to know (or at least have a record of) where your attorney is supposed to be and when, as well as what deadlines need to be addressed.
Some attorneys don’t like their calendars “cluttered” with all of the child events generated by a triggering or parent event. They only want the main/critical dates. Check with your attorney to see what their preference is. It is sometimes hard to determine what the critical events are when they’re buried in a long list of not-so-critical events.
When your calendar and your attorneys’ calendars are not in sync, it can be difficult to determine whose calendar is correct, if a date got missed, etc.
PARENT/CHILD OR “TRIGGERING” EVENTS
“Triggering” events are initial actions that “trigger” a subsequent event, with a deadline that must be calendared. Examples of a triggering event: service of a summons and complaint; a motion; a trial date. These are considered parent or triggering events because they produce “child” or subsequent events that must be taken care of and calendared.
It can safely be assumed that anything filed with the court or served on/by opposing counsel involves a triggering event of some kind.
Once we know our triggering date and what it triggers, where do we look to find our deadline? There are usually three possible sources.
- The first is the civil procedure statutes. This would be the Federal Rules of Civil Procedure in federal court, or the Code of Civil Procedure in state court. For example, the statutes of limitations for various civil actions are found in Code of Civil Procedure sections 312-366.
- The next is Rules of Court. In federal court, the local rules of the district court in which your action is filed are important sources of deadlines. California’s Rules of Court apply to all state superior courts and courts of appeal. In addition, each court will have local rules that should be consulted.
- The final source of deadlines is the rulings or orders of your assigned judge. Some judges issue standing orders that apply to all cases in front of them. In addition, judges will issue scheduling orders throughout the course of the action which must be carefully applied.
The time within which any act provided by law is to be done (not including acts which involve a hearing date) is computed by excluding the first day and including the last day, unless the last day is a Saturday, Sunday or other legal holiday, in which case the time period is extended to the next day which is not a holiday. (Cal. Rules Court, rule 1.10; Code Civ. Proc., § 12.)
The time for any act provided by law which is required to be performed no later than a specified number of days before a hearing date in calculated by counting backward from the hearing date, excluding the day of the hearing. Continuing counting backwards, any additional days are added depending on the method of service. (Code Civ. Proc., §12c.)
“Holiday” is defined as every Saturday and Sunday, and every day the courts are closed. (Code Civ. Proc., §§ 10, 12a, 12b.)
COURT DAYS VERSUS CALENDAR DAYS
The statutes and rules of court refer to the terms “court days” and “calendar days” in calendaring certain deadlines. Court days refer to those days in which the courts are actually open and doing business. Calendar days include all the days of the year, including weekdays, weekends, and holidays. If only the word “days” is used in the code or rule, it applies to calendar days.
In federal court, we always count calendar days, and never court days, pursuant to Federal Rule of Civil Procedure 6(a)(1)(B). In state courts, statutes and court rules assume calendar days are meant, unless the statute or rule specifies court days. For example, the due date for motions, motion responses and replies are calculated back from the hearing date by court days pursuant to Code of Civil Procedure section 1005(b).
Note that when we’re told to count court days, this means we must take court holidays into account! Also note re discovery cutoff deadlines – – these are extended forward to the next day which is closer to trial. Additionally, be aware that the continuation of a trial date does NOT extend the discovery cut-off.
WHEN TO START COUNTING AND WHEN TO STOP COUNTING
We know the deadline for responding to a complaint is 30 days in California (21 days in federal court for most defendants). Do we count the day the summons was served? According to the Federal Rules of Civil Procedure 6(a)(1), and California Code of Civil Procedure section 12, we exclude the first day (i.e., the day of service), and include the last day (unless it falls on a weekend or holiday).
“Help! I can never remember whether I’m supposed to count forward or backwards!”
Here’s the best way to remember: The only time you count backwards is when there’s a hearing date.
All of your child events will be based on the date of the hearing, which HAVE to be counted backwards from the hearing date.
“What about weekends and holidays? What if my deadline falls on one of those? Do I calculate the deadline back to the previous Friday or calculate ahead to the next Monday?”
In state courts, we calendar ahead to the next court day, according to California Code of Civil Procedure section 12a. The same is true in federal court, pursuant to Federal Rule of Civil Procedure 6(a)(1)(C).
EFFECT OF SERVICE METHOD ON DEADLINES
Certain service methods can extend the response deadline beyond what the statute or rule calls for. Why is this so? It is to compensate for any delay in the actual receipt of the document caused by disrupted or slow mail service, or by technical difficulties. The goal is that the receiving party not be penalized with less time to respond due to something outside of its control.
The length of the extension might be affected by what is being served, as well as by how it is served. Below are some examples of extensions of time brought about by a service method.
Federal Rule of Civil Procedure 6(d) extends a receiving party’s response deadline by three (3) days if service is by mail. For state court matters, service by mail generally extends the response deadline by five (5) days; however, the extension depends on whether the receiving party is inside the state, out of state, or out of the country.
BY OVERNIGHT DELIVERY
Federal procedure rules do not specifically allow for overnight service. In state court matters, the extension is two (2) calendar days for motions (Code Civ. Proc., §1005(b)), but two (2) court days for any other kind of document (Code Civ. Proc., §1013(c)).
SERVICE BY ELECTRONIC MEANS
Generally, Federal Rule of Civil Procedure 6(d) extends a receiving party’s response deadline by three (3) days if service is electronic, including via the court’s ECF system. However, some courts’ local rules will supersede this. Be sure to check! In state court matters, electronic service extends a receiving party’s response deadline by two (2) court days (Code Civ. Proc., §1010.6(a)(4)).
USING AN ATTORNEY SERVICE
Are you using a filing/attorney service to e-file, fax file, or personally deliver your document to the court?
BE SURE TO CHECK WITH THEM REGARDING THEIR OWN INTERNAL DEADLINES! For example, Riverside County Superior Court’s website states that the filing deadline for civil filings is 4:00 PM; however, First Legal’s deadline to have the documents to them is 3:00 PM! (Which means you tell your attorneys you have to have it ready for the attorney service no later than 2:00 PM!)
Are you e-filing? Check your local court’s ECF rules!
Most district courts require that electronic transmission be completed before midnight of the due date, local time where the court is located, unless otherwise stipulated or ordered by the assigned judge.
Oppositions/reply papers to motions shall be served and reasonably calculated to ensure delivery to the other parties not later than the close of business on the next business day! (Code Civ. Proc., § 1005.)
Categorized in: Legal Procedure
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