October 20, 2017

Tenth Circuit to Upgrade CM/ECF System

The Tenth Circuit Court of Appeals announced that it will upgrade its CM/ECF system to the Next Generation CM/ECF system (NextGen), beginning on Friday, May 12 at noon and finishing by Monday, May 15 at 7 a.m. CM/ECF will not be available during the upgrade. Frequently asked questions about the NextGen system are available here. There are also electronic learning modules available for the PACER NextGen; they are available here. For more information about the upgrade and NextGen, click here.

Comment Period Open for Proposed Changes to 10th Circuit Local Rules

On August 14, 2015, the Tenth Circuit Court of Appeals announced that changes to its local rules will take effect January 1, 2016. From August 14, 2015 to October 22, 2015, all interested parties are encouraged to review the changes and make comments to the clerk of the court. The changes are outlined in a memorandum explaining the proposals, and are excerpted here:

10th Cir. R. 8.3(A) (addressing applications for stay made to a single judge) This proposed change removes the language at the end of the current rule which states applications for stay made to single judges are disfavored “except in an emergency.” Given technical advancements, all emergency motions can be processed centrally.

10th Cir. R. 9.1(C) (regarding application of the Rule 46.3(B) motion requirement to bail appeals) This proposed change modifies the rule to make clear that the new motion practice announced in R. 46.3(B) does not apply to bail appeals.

10th Cir. R. 17.3 (regarding filing an appendix in agency cases) This proposed change modifies the rule to make clear that when an agency record is filed, the parties need not submit a separate appendix.

10th Cir. R. 25.6 (addressing CM technical failures) This new rule addresses procedures in the event of a CM/ECF system failure.

10th Cir. R. 27.1 (location of the “confer and consent” provision of the local rule on motions) The court’s “confer and consent” rule has been moved to the beginning of local rule 27 for greater visibility. In addition, the rule now makes clear that CJA counsel need not confer on motions filed to withdraw or for continued appointment.

10th Cir. R. 30.1(D)(6) (addressing motions to seal documents) This local rule addresses the submission of sealed materials. The proposed change to the rule requires parties submitting materials under seal (except for presentence reports, which are exempt) to file a motion to do so. The proposed change is made in accord with circuit case law emphasizing the presumption in favor of providing access to judicial records. See Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, 663 F.3d 1124, 1135-1136 (10th Cir. 2011).

10th Cir. R. 31.5 (addressing the number of hard copies required for briefs) This modification adds a specific clause regarding the court’s already existing requirement that 7 hard copies of briefs must be received in the clerk’s office within 2 business days of the electronic filing.

10th Cir. R. 33.2 (removal of the requirement to have a private settlement discussion) This modification deletes this local rule.

10th Cir. R. 46.3(B) and R. 46.4(B)(1) (incorporating the new motion requirement from the amended CJA Plan adopted effective July 8, 2015) This proposal includes a section memorializing the new motion requirement created by virtue of the court’s amendment of the circuit Criminal Justice Act Plan in July 2015. In addition, please note the language added to Rule 46.4(B)(1), which makes clear the new requirement is not a substitute for filing a motion to withdraw, as appropriate, in Anders cases. In addition, the court’s decision in United States v. Cervantes, ___F.3d___, 2015 WL 4636640 (10th Cir. May 22, 2015) has been incorporated into the rule. Finally, Addendum I of the rules, which is a copy of the CJA Plan, has been updated.

Addendum IV (removal of the Rules for Judicial Misconduct and Judicial Disability Proceedings) Because they are now available on the court’s website, the Rules on Judicial Misconduct have been deleted as an attachment to the Rules.

The Federal Rules of Appellate Procedure will not be updated January 1, 2016. A redline of the Tenth Circuit Local Rules including the proposed changes is available here.

Tenth Circuit to Implement eVoucher Effective July 20, 2015

The Tenth Circuit announced that effective July 20, 2015, all Tenth Circuit Appellate Criminal Justice Act vouchers must be submitted electronically. The eVoucher program is a nationally supported web-based program for the preparation, submission, monitoring, and approval of Criminal Justice Act vouchers. Practitioners can access the Tenth Circuit’s eVoucher database here. Only Internet Explorer may be used to access the eVoucher database; Chrome and Firefox are not allowed.

For information and training videos about the eVoucher database, click here. For the Tenth Circuit’s Criminal Justice Act policies and procedures, click here.

F.R.A.P. 6 and Tenth Circuit Local Rules Amended

Rule 6 of the Federal Rules of Appellate Procedure, “Bankruptcy Appeals,” was amended, effective December 1, 2014. The changes to the rule incorporates the most recent numeric amendments to the bankruptcy rules, language was incorporated to include reference to electronic records, and the rule has been updated to include references to discretionary bankruptcy appeals in the Tenth Circuit per 28 U.S.C. § 158(d)(2).

The Tenth Circuit Local Rules were also amended, effective January 1, 2015. The changes to the Tenth Circuit Local Rules include changing references to accommodate electronic filing, moving all specific requirement for appendices to a single rule (Rule 30), adding a requirement that agency petitions include a list of parties to be served by the circuit clerk, outlining procedures for obtaining exemptions from electronic filing requirements, clarifications regarding citations to the record on appeal, and, most significantly, adding a rule that delineates requirements for appendices. The goal in adding Rule 30 was to move all requirements for appendices into one unified rule. Rule 30 requires electronic appendices for all retained counsel cases after January 1, 2015, except that one hard copy must be filed in the clerk’s office. Requirements for content and time of filing are delineated in the new rule, as well as options for seeking exemptions from the electronic filing requirement.

A memorandum issued by the Tenth Circuit explaining the changes to F.R.A.P. 6 and the Local Rules is available here. For a redline of the changes, click here.

Online Submission and Payment Options Now Available for Tenth Circuit Court of Appeals

On Thursday, October 11, 2012, the Tenth Circuit Court of Appeals announced that original proceedings may now be submitted and filing fees may be paid with a credit card using their ECF filing system.

Anyone wishing to use the new ECF system must be a registered user with the court. All documents must be in searchable PDF format and may not exceed 5 MB in size.

Directions for submitting petitions with payment using the ECF system can be found here. Directions for submitting payments are found here, and directions for submitting F.R.A.P. 5 petitions can be found here.

New Colorado Courts E-Filing System to Launch January 1, 2013

New E-Filing System: On January 1, 2013, the Colorado Judicial Branch’s new Integrated Colorado Courts E-Filing System (ICCES) will replace LexisNexis File & Serve. As of that date, all electronic filings for civil cases in the district, county, and appellate courts of Colorado will be made through the new ICCES program.

The State Judicial website has videos giving an overview of ICCES and a basic demonstration of filing a new case. Additionally, a new Pricing Model Sheet is available to review.

Pilot: On October 1, 2012, the Colorado Courts will begin the live transition from LexisNexis File & Serve to ICCES. Select judicial districts will pilot ICCES from October 1 through December 31. Pilot courts will require all e-filings be made through the ICCES system during this three-month period. Non-pilot courts will still require that all filings be made through LexisNexis. On January 1, 2013, the pilot will end and all judicial districts will fully transition to ICCES. To learn more about the pilot schedule, click here.

ICCES Account Pre-Registration: Law firms and agencies will need to register their organizations and request user accounts for ICCES. Pre-registration can be completed by clicking here.

Training: The Judicial Branch will begin ICCES training this August. Trainings will also be announced on the Judicial Branch website. To learn more about training opportunities, click here.

Stay informed about the ICCES transition by visiting the Colorado Judicial Branch’s E-Filing website, where regular updates will be posted.

E-mail ICCES-Feedback@judicial.state.co.us for any questions about the transition to ICCES.

Service, Process, and Electronic Filing Rules Amended by Colorado Supreme Court

On July 2, 2012, the Colorado Supreme Court released numerous updates to the Colorado Rules of Civil Procedure and the Colorado Rules of County Court Civil Procedure dealing with process, service of process, and the filing of pleadings. Amendments were made to the following rules:

  • CRCP Rule 4 – “Process”
  • CRCP Rule 5 – “Service and Filing of Pleadings and Other Papers”
  • CRCP Rule 121, Section 1-26 – “Electronic Filing and Serving System”
  • CRCCCP Rule 304 – “Service of Process”
  • CRCCCP Rule 305.5 – “Electronic Filing and Serving”

These amendments were adopted on June 21 and are effective immediately.

Click here to review the red line changes to these civil procedure rules, outlined as Rule Change 2012(10).

Change of Address, Bounce-Back Email, and Non-Admitted Appearance Processes Revised by United States District Court for Colorado

The United States District Court for the District of Colorado has revised its rules regarding how the court will process attorney address changes, email bounce-backs, and appearances by non-admitted attorneys. It is important for attorneys to be aware of their obligations to the courts, especially regarding how to proceed when you change your physical address or email address or when you need to appear before the court when you are not admitted:

Change of Address:

Currently, clerk’s office staff compare the signature block of an attorney’s most recent filing with the attorney’s contact address information in CM/ECF and, when needed, will update the contact information to comport with the most recent provided address. The current process of checking for address changes for attorneys is very time consuming and impedes on the time needed to address the efficient docketing of case filings and court actions.

Compliance with local rules D.C.COLO.LCivR 10.1M and D.C.COLO.LCrR 49.3M regarding notice of change of address falls exclusively upon attorneys. Clerk’s office staff should not provide attorney support work regarding the checking for a need to update an address. Staff will, therefore, no longer automatically check for address update information and will rely on proper notice by the attorney as required by the Court’s local rules. This revised process will go into effect on April 9, 2012.

Bounce-back Emails:

In 2005, when the court went live on electronic filing, the clerk’s office began to monitor bounce-back emails related to electronic case entries posted by clerk’s office staff, chambers staff, or attorney counsel. Typically, bounce-back emails occur as a result of counsel’s failure to update their email addresses. The monitoring process was initially implemented as a check to the innovative use of electronic filing and service and notice of the same. Use of electronic filing is now the standard process for all attorneys to post and receive case information.

As directed by local rules D.C.COLO.LCivR 5.2D, D.C.COLO.LCivR 10.1M, D.C.COLO.LCrR 49.2D, and D.C.COLO.LCrR 49.3M, counsel are to inform the court of any change of email address within 5 days of the change. Whenever an attorney filer’s email address changes, the attorney is to electronically update her/his ECF electronic profile to activate the new email address. As long as an attorney is in good standing with the bar of the Court, it is the attorney’s responsibility to keep his/her email address(es) current regardless of place of employment, whether or not counsel of record in an open or closed case, or even if no longer practicing law.

It has been the experience of clerk’s office staff that bounce-back emails resulting from wrong email addresses occur in a variety of situations. Attempts to determine correct email addresses are very time consuming and often unproductive due to non-responsive attorneys. A number of opinions from district and appellate courts exist citing the responsibility of counsel to monitor the docket of the court for the need to address such matters as maintaining up-to-date contact information, including current email addresses. Therefore, effective April 9, 2012, the clerk’s office will no longer monitor bounce-back emails. Should chambers have a question about a specific attorney’s email address, clerk’s office staff will certainly assist with any effort to address the question.

Non-Admitted Appearing Attorneys:

In the past, when an attorney made an appearance pursuant to D.C.COLO.LCivR 11.1A or D.C.COLO.LCrR 44.1A, and the attorney was not admitted to practice in this court, clerk’s office staff would contact the attorney by phone, email, or letter informing her/him of the duty to seek admission or withdraw his/her appearance. An attorney may be contacted multiple times over a protracted period. Unfortunately, this time consuming process does not usually result in the attorney taking the requested action. When no action is taken by the attorney, the clerk’s office notifies chambers that the attorney has been unresponsive.

To streamline this procedure and focus the responsibility on the attorney’s obligation to comply with the local rules, the clerk’s office will begin using the following docket entry in place of the an attempt to gain compliance via direct contact:

“The Court construes that (name of attorney) has entered an appearance as an attorney in (cite the case number.) Pursuant to (D.C.COLO.LCivR 11.1A or D.C.COLO.LCrR 44.1A), only members admitted to the bar of this court can enter an appearance as an attorney. The attorney records of the court do not reflect that (name of the attorney) is a member of the bar. Unless an application for admission to the bar is received within 20 days of the date this entry, further action may be taken by the court.”

Streamlining the procedure will eliminate letters, emails, and phone calls by clerk’s office staff and may further assist in reducing associated work performed by chambers staff. The docket entry will provide notice to appearing attorneys and chambers. This procedure will go into effect on April 9, 2012.

Legal Writing Pro: Five Secret Typography Tips for Lawyers

By Matthew Butterick

Writing a book about typography for lawyers is a little like running a karate dojo — as the master, I have to keep a few secrets for myself. But for Ross, I’ll bend the rules. Here are five of my favorite typography tips that I don’t usually share with people:

1) Extra characters on the iPhone & iPad

Press a key on the iPhone (or iPad) keyboard and hold it down. For many keys, a key palette will appear with alternate characters. Alphabetic characters reveal accented versions. Under punctuation, you’ll find the ellipsis, the em dash, the bullet, the section mark, curly quotes, and other little conveniences.

2) Footnote references in bold

By default, your word processor will set your footnote-reference marks in the same font as your text. But at their reduced point size, those marks can look a bit pale and fragile. Instead, set those marks using a bold font. That way, when the marks get shrunk, they’ll hold up better on the page.

3) ALL-CAPS on stationery and business cards

I advise lawyers not to use CAPS for more than one line at a time, to prevent anyone from setting whole paragraphs in caps. But multiple lines of caps on stationery or business cards can look quite sharp. In fact, at those small sizes, caps are often more legible than standard upper & lower case. My own stationery and business cards are entirely set in caps.

4) Basic Commercial — a great substitute for Arial or Helvetica

Basic Commercial is a sans serif font from the early 1900s that was a precursor to Helvetica (and later, Arial). It has a similar informational look but with more historical flavor. (It was also the original font used for New York City subway signage in the ’70s.) A terrific and underused font. (See http://typo.la/bc)

5) PDF exhibit letters

If you litigate in a district that requires electronic filing, you may have wondered how to put exhibit letters in your PDFs. I’ve gotten documents from lawyers that look like they jammed the plastic exhibit tab through a scanner — not such a great idea. In addition to endangering your scanner, the exhibit letter will be barely visible to someone flipping through the PDF. So I made a special set of extra-large exhibit letters that I can drag & drop into exhibit PDFs. You can download them at http://typo.la/exhib.

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

e-Legislative Report: Week Eleven, March 26, 2012

In this week’s Legislative Video Update, Michael discusses discusses how the Colorado Bar Association’s Legislative Policy Committee played King Solomon with the juvenile direct file bill, improvements to the Secretary of State’s business filing system, and the state’s projected increased revenues for its budget.

From the CBA Legislative Policy Committee

After a well deserved break from the action on March 16, the Legislative Policy Committee met on Friday, March 23 and took up two bills:

HB 12-1271 – the Juvenile Direct File bill
The LPC played King Solomon and developed a measured position for the Bar Association on HB 1271 – the Juvenile Direct File bill. (See full description of the bill here.) The LPC voted to authorize the Juvenile Law Section to support the bill in the name of the Juvenile Law Section only. This is permitted within the guidelines for the Legislative Policy Committee. This position was developed to respect the natural divide within the Criminal Law section where prosecutors and defense attorneys are divided on the bill. The bill is scheduled to be heard by the Judiciary Committee on Monday at 1:30 p.m. in the big committee room at the Capitol – the Old Supreme Court Chamber.

SB 12-123 – Enhance Secretary of State On-Line Filing System
The LPC also voted to support SB 123 – Enhance Secretary of State On-Line Filing System. The bill contemplates improvements to the Business Filing System including enhancements to user accounts, registered agents, record management, certifications, and better search functionality. The Business Law Section sought the approval for support. The bill is caught up in the Appropriations Committee as the Joint Budget Committee moves closer to introducing a balanced budget.

Click here to read the full e-Legislative Report.

SB 12-123: Requiring Secretary of State to Develop and Implement Enhancements to Online Business Filing Systems

On January 31, 2012, Sen. Scott Renfroe and Rep. J. Paul Brown introduced SB 12-123 – Concerning the Secretary of State’s On-Line Business Filing System and, In Connection Therewith, Authorizing Enhancements to the System, the Designation of Commercial Registered Agents, and Changes to a Reporting Entity’s Annversary Month. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill directs the Secretary of State to implement enhancements to the on-line business filing system, including enhancements to user accounts and for registered agents and records management, certifications, the integration of business documents with charitable solicitation documents, and greater search functionality.

Summaries of other featured bills can be found here.

Attorneys Required to Open Cases via CM/ECF in United States District Court for Colorado

On February 23, 2012, attorneys will be required to open civil cases in the United States District Court for the District of Colorado via ECF and provide payment via pay.gov. Other changes that will occur (some before February 23) include:

  • The clerk’s office will no longer return your filed complaint via email. You will receive a Notice of Electronic Filing (NEF) when your case is opened.
  • Summons forms, if provided, will be issued through ECF. You will receive a NEF with the summons and the magistrate consent form. A new event has been created for filing the civil summons called “Summons Request.” Please note you should use the national summons form, not the local form.
  • The fee for filing an appeal may be paid online at the time of filing.
  • A new event has been created for filing the corporate disclosure statement and entering corporate parents in CM/ECF.

More Information

Cases That Must Be Filed via Email and Will Be Opened by the Clerk’s Office

  1. Sealed (qui tam, etc.).
  2. Discovery motions in civil cases pending in another court.
  3. Petition to Quash an IRS summons.
  4. Petition for Judicial Assistance for Discovery from Foreign Tribunal pursuant to 28 U.S.C. § 1782.
  5. Petition to Perpetuate Testimony pursuant to Federal Rule 27.
  6. Petition to enforce administrative subpoenas or summons.
  7. Applications for civil seizure warrant.
  8. Application for warrants for inspection, entry and investigation or to determine need for and to undertake response action.
  9. Motions for Extension of Time to File Forfeiture Action.
  10. Filings of complaints and orders for appointment of receiver pursuant to 28 U.S.C. § 7547.
  11. Request to issue subpoena pursuant to the Digital Millennium Copyright Act.
  12. Applications pursuant to 12 U.S.C. § 3409.
  13. Certifications of judgments from other districts.

Click here to read the full announcement from the United States District Court for the District of Colorado.