Back to Basics – The Calendaring Rules
By: Daphne Drescher, CP
What is the one thing that keeps many a paralegal lying awake at night, gripped in a state of sheer paranoia and absolute panic, playing that fun, little game best titled as “memory reconnaissance?” The fear of miscalendaring an important deadline – that’s what. The fear of missing a statute of limitations – yes, indeed. The things that could possibly get one’s supervising attorney sued for legal malpractice tend to have a way of reserving one a seat among the sanity depleted, my friends. Today, Daphne is stopping by TPS to share some great calendaring tips with the rest of us. Take a big sip of that beverage sitting desk-side and keep reading!
Reprinted with permission from Proparalegal: http://www.proparalegal.com
Calendaring is an essential task in any law firm. No matter what practice area we work in, there are dates and deadlines we must keep track of. The consequences of missing a deadline can be dire! Missed deadlines make our law firm look unprofessional. But much worse, they can cost our firm money, cost our client money, or even result in a permanent loss of a remedy for our client.
What steps do we need to follow in order to keep track of dates accurately? What rules apply? Try these on for size.
Identify the triggering event. We speak about “triggering” events because an initial event “triggers” a subsequent event, with a deadline that must be calendared.
What are some examples of a triggering event?
- a personal injury
- service of a Summons and Complaint
- a trial date – although this triggers events counted backwards!
It can safely be assumed that anything filed with the Court or served on opposing counsel involves a triggering event of some kind.
Identify what is triggered. The next thing we need to know is what deadline has been triggered by the initial event.
For example, a personal injury triggers a Statute of Limitations date. The service of a Summons and Complaint triggers action on the part of the defendant served: filing an Answer, or filing a Motion, etc. And a trial date triggers a number of other events calculated backwards, including a discovery cutoff date.
Identify the rule that applies. 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 California. For example the statutes of limitations for various civil actions are found in Cal. Code Civ. P. §§312-366.
The next is Rules of Court. In federal court, the local rules of the District Court in which our action is filed are important sources of deadlines. Several states, including California, have Rules of Court which apply to all state superior courts. In addition, each court will have local rules that should be consulted.
The final source of deadlines is the rulings or orders of our 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.
Apply the statutes and rules correctly. It’s all well and good to locate the source of our deadline, but if we don’t apply it properly, we can still miss an important date.
Here are some examples:
When do we start counting? When do we stop? For example, we know our deadline for responding to the 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 Fed. R. Civ. P. 6(a)(1) and Cal. Code Civ. Proc. §12, we exclude the first day, i.e. the day of service, and we include the last (unless it falls on a weekend or holiday, in which case see below).
Do we count calendar days or court days?
- In Federal Court, we always count calendar days, and never court days, pursuant to Fed. R. Civ. P. 6(a)(1)(B).
- In California, statutes and court rules assume calendar days are meant, unless the statute or rule specifies court days. So for example, the due date for motions, motion responses and replies are calculated back from the hearing date by court days pursuant to Code Civ. P. §1005(b). Note that when we’re told to count court days, this means we must take court holidays into account!
What do we do if our deadline falls on a weekend or holiday? Do we calculate our deadline back to the previous Friday? Or do we calculate ahead to the next Monday?
- In California, we go ahead to the next court day, according to Cal. Code Civ. P. §12a.
- The same is true in federal court, pursuant to Fed. R. Civ. P. 6(a)(1)(C).
Effect of service method on deadline. 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.
Here are some examples of extensions of time brought about by a service method:
- By mail. Fed. R. Civ. P. 6(d) extends a receiving party’s response deadline by 3 days if service is by mail. In California, 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 don’t specifically allow for overnight service. In California, the extension is two calendar days for motions (Code Civ. P. §1005(b)), but two court days for any other kind of document (Code Civ. P. §1013(c)).
- Service by electronic means. Generally, Fed. R. Civ. P. 6(d) extends a receiving party’s response deadline by 3 days if service is electronic, including via the court’s ECF system. Some court’s local rules will supersede this however.
Calendaring the correct date is important because most deadlines are very unforgiving. We are either on time or we are not, and consequences for being late can be severe. Therefore, calendaring deadlines accurately deserves our undivided attention. It is one of the most basic, yet one of the most important ways to serve our clients well.
Daphne is a virtual litigation paralegal and owner of California-based Drescher ProParalegal. She is also an instructor in the Paralegal Degree Program at Empire College. For more information, visit Daphne’s website http://proparalegal.com where you can subscribe to the free Drescher ProParalegal Newsletter full of litigation practice tips and resources for legal support staff.
©2011 Drescher ProParalegal. All rights reserved.
Wishing you a fantastic day diffusing those deadlines, TPS readers! Keep calm and calendar on. Make it a great one.