Posted: November 26, 2013
Rules of Civil Procedure
URCP 006. Time. Repeal and reenact. Conforms the computation of time to the approach of the Federal Rules of Civil Procedure. Deadlines of 30 days or less in several rules will be modified to a uniform 7/14/21/28 days. The list of deadlines proposed to be amended is linked. If approved, those rules will be amended to change the deadlines as indicated, but the rules will not be published for comment. Deadlines not listed are not proposed to be amended.
URCP 010. Form of pleadings and other papers. Amend. Prohibits a graphic or “wet” signature on an electronically filed document.
URCP 058B. Satisfaction of judgment. Amend. Requires the creditor to file a satisfaction of judgment within 28 days after the judgment has been paid.
URCP 074.
Withdrawal of counsel. Amend. Permits an attorney making a limited appearance to withdraw by announcing the withdrawal in court, if permitted by the judge.
URCP 075. Limited Appearance. Amend. Permits an attorney making a limited appearance to announce the appearance in court, if permitted by the judge.
I like that the word “shall” was replaced by “must” in rule 10. This is why I don’t understand why the new language in rule 58B uses “shall” instead of “must.” I would change that to be consistent with what appears to be an attempt to modernize the language in the rules.
There is a rule governing the withdrawal of counsel and the limited appearance of counsel, but no rule explains how an attorney appears as counsel in a general sense. At least not to my knowledge. I think the language in Rule 9 of the Rules of the Supreme Court of the United States should be adopted.
The rule, entitled “Appearance of Counsel,” explains that “[t]he attorney whose name, address, and telephone number appear on the cover of a document presented for filing is considered counsel of record, and a separate notice of appearance need not be filed. If the name of more than one attorney is shown on the cover of the document, the attorney who is counsel of record shall be clearly identified.” See http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf
This would clarify the process for new lawyers.
The proposed changes to Rules 74 and 75, permitting oral limited appearances and withdrawals from such appearances, are extremely helpful. In conjunction with Utah Rule of Professional Conduct 6.5, these Rule changes will help facilitate pro bono services that include limited court appearances. Simplifying pro bono representation is a wonderful goal, and the proposed changes do a great deal in furtherance of that goal.
While making changes to URCP Rule 10, please consider the situation where litigious pro se Plaintiff litigants may file frivilous pleadings while providing no information about a physical address where they can be personally served. A defendant is personally served to be brought into the action, a Plaintiff should be required to provide a physical address where they can be located as well. Some pro se Plaintiffs provide an address for a UPS store (or other similar business) with commercially available mail boxes as their address, which gives the appearance of a physical address when it is nothing more than a mailbox. While this works for mail, it is not an address where they can be found and served a court order or subpoena or any other process that may come up.
Please consider adding to the rule that an actual physical address of where the party can be found, or their current residential address, must be provided and clarify that “address” must include a physical location, not just a mailing address.
Re revised URCP Rule 6(a)(4): It would be helpful to amend or clarify the deadlines in URCP Rule 101(c) and (g) which are based on “business days” rather than calendar days like the rest of the rules. Generally, a “business day” is understood to begin at 8 a.m, end at 5 p.m., and excludes weekends and legal holidays. However, revised Rule 6(a)(4) implies a document electronically filed past the close of business but before midnight would be considered timely filed. There is some disagreement amongst the commissioners whether a response filed at 11:59pm 7 calendar days before a hearing would be considered filed 5 business days in advance and therefore timely or untimely because it was filed after 5 p.m. and therefore only 4 business days before a hearing. Given that URCP 101(c) imposes a short turnaround time for a reply (and even shorter if you’re replying to a counter-motion under URCP 101(g)), I’d urge the committee to clarify that documents filed under URCP 101 must be electronically filed by 5 p.m., otherwise they are not considered as having been filed and served until the next business day.
On Rule 10, please consider adding an exception that a notarized document may have wet signatures by both the signer and the notary. Anything less would be very difficult to notarize. Otherwise, perhaps the new rule could limit the “no wet ink” requirement to motions and pleadings.
Thank you!
Rule 10(a)(1):
Although not a proposed change, in Line 4, the phrase “, if known,” should be added after “the file number” similar to Line 5 when commencing an action since neither the file number nor the judge’s name is known at the time of filing.
Rule 10(a)(4):
Although not a proposed change, the term “cover sheet” is not applicable to new cases filed electronically.
Rule 10(d):
The Advisory Committee Note re the right and bottom margins is inconsistent with Lines 38-39 in Rule 10(d). The proposed language is 1 inch but the Advisory Note indicates a change to 1/2 inch for the right and bottom margins.
The proposed change to sub-paragraph (e) or URCP 10 to preclude “wet” signatures on all documents filed electronically is burdensome, confusing, and unnecessary. Mandatory electronic filing of all documents results in the electronic submission of numerous documents that were not originally prepared in an electronic format (such as original wills, certificates, notices, and recordable documents relating to real estate transactions). The most efficient way to convert such documents to an electronic format is to scan them as .pdf documents – including the original “wet” signatures. The proposed change to the rule suggests that some other much more cumbersome process will be required in order to recreate an electronic document that includes an electronic signature in place of the “wet’ signature. I understand that the argument favoring the proposed change is that it is desirable that all filed documents be electronically “readable,” and that scanned documents with “wet” signatures do not meet that criteria. However, in this circumstance, the end does not justify the means. “Wet” signatures have not only been legally sufficient, but have been legally required from time immemorial, and provide a much greater assurance that a document has actually been signed by the identified individual than does any currently-available form of electronic signature. Current scanning technology permits very accurate presentation of originally-signed documents, and is both efficient and inexpensive. The current language of the rule appropriately imposes specific requirements on the form of documents which filers choose to sign electronically. However, the proposed shift to require that all filed documents be so signed exalts electronic form over practical and legal reality, and does so in a way that will result in increased expense, reduced efficiency for attorneys and others using the system, and diminished integrity of the legal record. The presence in our legal record of documents that may not meet particular criteria of electronic readability is a very small price to
pay for the preservation of the legal sufficiency of “wet” signatures. “Wet” signatures should always be a valid option for any filed documents, and required forms of electronic signatures should apply only when the filer chooses to submit an electronic signature. Encouraging their use is appropriate, but precluding everything else is not.
In the “list of deadlines” to be changed along with the proposed change to URCP 006, you show URCP Rule 3(a) changing the 10 days to file the complaint after service to 14 days. However, in URCP Rule 4(c)(2) you do not make the correlating change from 10 days to 14 days of when the complaint needs to be filed. This will create great confusion as Rule 3 will allow 14 days and Rule 4 will allow only 10 days. The only deadline in Rule 4(c)(2) that you propose to change is the number of days the defendant has to call the court clerk to find out if the complaint was filed. You are changing that from 13 days to 14 days. Changing only that call in date, without changing the other date will create confusion and disagreement between the rules.
Re 6(c): the rule should state explicitly that it refers to U.S. mail. “Mail” can and does include email and transmittal by commercial services, all of which are mail. The Rule can avoid disputes and confusions by stating that it means US mail.
I echo the comments regarding the proposed amendment to Rule 10 regarding graphic or “wet” signatures, specifically those of Noel Hyde. This is counterproductive and unnecessary. The proposed rule is too broad and if anything should be drastically limited to address the specific issues you are seeking to address.
How does the proposed Rule 10 accommodate affidavits, verified petitions, and other documents that are signed by a non-attorney and/or may require notarization. I have seen documents submitted by other parties that purport to be “notarized” but have only a “/s/” with the notary’s name, and no notary stamp. This does not meet the legal requirements for notarization as I understand them. A blanket prohibition on all “wet” signatures seems problematic. Nor is it readily apparent what problem this proposed prohibition is intended to solve.
I agree with the comments of Stewart and Noel, and would vote to allow scanned signatures, not just the /s/ for the reasons stated.
Rule 6(c) needs to be clarified as to what constitutes mail – USPS, email, electronic filing with the Court whereby parties are sent copies by the efiling program at the court – are these all considered mail? In light of required efiling, is (c) ever applicable to filing deadlines?
Thank you for clarifying in Rule 6(a)(4)(A)!
There are too many abusive rules being filed at once, and I couldn’t possibly fight them all if I were being paid full time to do so. The people need a grant fund to allow them to fight proposed rules on the grounds of civil rights or misfeasance/malfeasance.
The proposed rule change to URCP 58B requiring the mandatory filing of a satisfaction of judgment is unduly burdensome and unnecessarily increases costs to those practitioners who handle a large volume of collection cases, which will only result in this increased cost/fee being passed to the judgment debtor. The cost and time required to prepare, file, and mail satisfaction of judgments on hundreds, if not thousands, of collection cases when paid in full will not be borne by the creditor or its attorneys. Ultimately, the costs/fees associated with the preparation, filing, and mailing of a mandatory satisfaction will be passed to the judgment debtor by including said anticipated cost/fee in the amount required to satisfy the judgment. Rather than automatically increase the cost associated with each case where the judgment is satisfied, URCP 58B should not be amended and instead the common practice of only filing a satisfaction upon the request of and at the cost to the judgment debtor on a case-by-case basis continued.
Once again, the rules seem to be proposed without any thought to pro se defendants. With many pro se defendants, we often have signed settlement documents. A breach of that settlement would be filed with the Court but it would be with a “wet” signature. There needs to be modifications to allow for certain types of documents to be “wet”. I agree that if allowed to be scanned in, that would be sufficient. Pro se defendants do not understand the electronic signature and it causes undo confusion.