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Monday, September 10, 2001

Deficient Practice of Advisory Notices of Deficiency

New Castle County, Delaware, Family Court-

For years now, the Clerk of the Court, or more precisely one of the many Clerks or Deputy Clerks of Court have been utilizing a practice of returning documents that they feels are inadequate for one reason or the other. The practice first began in 1989, when I was the Clerk of Family Court. Each returned document was accompanied by a citation to a statute or Court Rule of which the Clerk felt the document was in violation.

Now, it seems that the criteria for refusing lawfully filed documents have become blurred, arbitrary, and untimely.

Currently there is a form utilized by non-judicial court personnel, as a cover, for their return of these documents to the filing attorney or pro-se individual. Frequently there is no specified Court Rule or statute cited, that the filing party is accused of violating. Frequently no reason is given except that the Clerk deems it so. In these cases the filing party usually already has clocked in his filing and relied upon that filing date with respect to the fulfillment of his or her legal responsibilities for the case. It may not be for a week or more later that the original filing is removed by the clerk, and sent back to the filer.

This removal of a filing from the Court?s file, and thereby possibly changing the sequence of the filing of documents, can have dramatic legal consequences to the status of a case. And these actions are being taken by persons without any legal training? It is true that advising a party of a potential deficiency is a valuable tool in identifying and correcting errors before those errors travel through the lengthy path of litigation. But are we not substituting one set of errors for another, rather than resolving them when we have untrained individuals passing sentence upon legal filings that have been prepared, reviewed and signed by a member of the bar, and when these same untrained individuals unilaterally and without oversight take such action as to remove a filing from the Court?

I think we would be better off with the first set of potential errors, rather than a compounded error of which there is no record or audit trail in the file.

I respect court clerks. They have very difficult jobs. I also respect their input with respect to my filings, and I take seriously any concerns that the clerk may have regarding whether or not a particular filing is proper. But just as I may err from time to time, so do court clerks. In recognition of the possibility of error on both sides of this transaction, should we not default to the maintenance of a good record, even if we are not to default to the reliance upon a law trained filing over an untrained objection. Could this same result not be achieved by sending a notice to the filer, and leaving the original filing in the Court file?

Would this not protect all interests and maintain a good reliable record of the case?

Recent Family Court rules require that the filing party in many cases provide the opposing party?s social security number, or state that such was not found despite reasonable efforts to find it. These rules will most certainly result in many filings being ?returned to sender?. Some of these returns will be correct; will all of them? Be wary. Be prepared. Fill in every block on the forms! Don?t rely on the appearance that your document has been filed.

It's not filed until the last clerk sings.

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