||The examples and perspective in this article may not represent a worldwide view of the subject. (December 2010)|
In law, filing is the act of submitting a document to the clerk of a court for the court's immediate consideration and for storage in the court's files. 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.
In civil procedure systems, filing rules can be mandatory or permissive. In a mandatory filing system, all documents of legal importance exchanged between the parties are also 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 operate on a mandatory filing system (with minor exceptions for the most routine discovery exchanges). In contrast, the U.S. state of New York is known for its permissive filing system, which was modified in 1992 but still largely operates in its traditional form in certain lower courts.
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 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), 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 electronic documents to a secure Web site maintained either by the court (for example, the U.S. has CM/ECF) or by a private commercial service like LexisNexis. 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.
A few progressive courts, such as the U.S. District Court for the District of Nevada, now work primarily with electronic files and have abolished the courtesy copy requirement for small filings below a certain number of pages.
Generally, filing fees are controversial because some individuals believe that they impede access to justice. Although American litigants complain about fees all the time (for example, it costs $400 to file a complaint in Los Angeles), the American system is considered to be quite plaintiff-friendly by lawyers.
Many legal systems have filing fees for complaints that are proportional to the amount sought. Thus, the greater the damages 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'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. What some consider to be the inherent unfairness of this system as actually implemented in Austria resulted in a U.S. Supreme Court decision, Republic of Austria v. Altmann (2004).
- See Rule 5(d)(1) of the Federal Rules of Civil Procedure.
- David D. Siegel, New York Practice, 3rd ed. (St. Paul: West Group, 1999), 118-120. 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."