This post is authored by Cathy Trent-Vilim, a partner in LDM’s litigation department.

By Cathy Trent-Vilim:

As a practicing litigation attorney, you have probably noticed the courts’ growing reliance on technology to manage litigation files, including the filing of court documents.  Are you familiar with Nebraska’s rules for electronic court filing, Neb. Ct. R. §§ 6-401-419?  If not, you might unwittingly be committing malpractice. 

The potential downside of court-utilized technology recently came up in the “Smith” case. In Smith, the plaintiff had two years from the date of her alleged botched medical procedure to file suit. Exactly two years after the procedure, the plaintiff’s attorney attempted to electronically file (“e-file”) a complaint with the state district court.  Unbeknownst to the attorney for several days, the filing was rejected.  The defendant doctors moved for summary judgment on their statute of limitations defense. 

In opposing the motion, the plaintiff produced a Filing Submission Receipt showing that her attorney had in fact attempted to file the initial complaint at 4:49 P.M. on the two year anniversary (a Friday).  The following Monday, however, the plaintiff’s attorney received the rejection notice.  The original submission had not been accepted because it was filed in Word format instead of as a .pdf document.  According to the plaintiff’s attorney, the firm set up its e-filing account on the very day it attempted the original submission and was unaware of the e-filing formatting requirements.

Nebraska’s e-filing rules do permit courts to give attorneys a reprieve in certain technology-related circumstances.  However, they also expressly provide that

. . . no order may be entered under this rule which expands the statutory time period for commencing an action or perfecting an appeal unless there is an affirmative showing that the failure to make a timely filing was due solely to an E-Filing System internal transmission error or a processing error by the court clerk.

Neb. Ct. R. § 6-414 (2008).  Since the e-filing failure stemmed from user error, and not a problem with the e-filing system or a failure by the court clerk, the rules prohibited the court from expanding the limitations period by back-dating the correctly-filed complaint.  As a result, the plaintiff’s claim was time-barred; and her attorney may be finding himself on the receiving end of a malpractice claim.

Smith serves as a useful reminder on several fronts:

  • NEVER – and I mean never – wait until the last minute to initiate a new lawsuit;
  • If you are in a time-crunch, be careful about using a new technology for the first time;
  • When using new technology, check for online resources to help you use it; and
  • Take time periodically to review the procedural rules and local court rules for new rules or changes to existing rules.

Whether we like it or not, courts’ use of technology is here to stay.  As a result, attorneys need to be as vigilant in staying abreast of changes in technology as we are in staying updated on substantive changes in the law.  If not, we do so at our own peril.