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Litigators often need to file documents under tight timeframes. If an adversary waits until the last minute to file their papers, it can in turn make their counterpart’s job more difficult since they will also have less time to prepare and file papers. This can add to the stress litigators face, since lawyers may need to work nights and weekends to make up for lost time if adversary’s file papers at the last minute.
Earlier this year, I filed an application, and the court ordered a very tight briefing schedule. My adversary was ordered to file her papers right before a weekend, and I was ordered to file responsive papers the day after the weekend ended. Naturally, I was hoping that my adversary would file her documents as early as possible so that I could work on my responsive papers on the Friday before the weekend and avoid having to cut into my own personal time as much as possible.
At the close of business that Friday, my adversary had still not filed her papers, so I quit for the day and went out for the night. At about 9 p.m., my adversary finally filed her papers. I got an email informing me of this while I was at a bar. When I got home I made sure to read the materials immediately because I had such a short amount of time to submit responsive papers, and I wanted to begin processing the information. Since I knew that I would not be able to file halfway decent papers if I just worked on the materials when the workweek resumed on Monday, I needed to work several hours over the weekend to prepare the papers for filing. In the end, I was able to file solid papers on Monday as a result of my weekend work.
Of course, sometimes lawyers need to file papers at the last minute. Lawyers might have dozens or more matters to handle at any given time, and they cannot devote themselves entirely to just one task. One time in my own life, I suffered a loss in the family and needed to attend the funeral and make arrangements during the same time that I needed to prepare opposition papers. I did not file the papers at 9 p.m., but I took a little longer to file than I normally do.
The more interesting situation is when an adversary waits until the last minute to file papers in order to shorten the time an adversary has to prepare and file their papers. Some lawyers think that giving other attorneys more time to prepare and file their papers means that those documents will be better crafted and might have an improved chance of persuading a court. I can go either way on whether this is discourteous. On the one hand, this is how the game is played, and lawyers need to do everything they can to secure an advantage for their clients. On the other hand, this might not impact the quality of the papers produced and can put undue pressure on adversaries that can be avoided. I’d love to hear opinions from readers on this topic, I don’t have a position one way or the other.
My typical practice is to file papers a day or so before they are due whenever possible. This leaves no doubt that I am doing my best to be courteous, and this still typically leaves me plenty of time to prepare solid papers for filing. Also, I am paranoid about calculating litigation deadlines, and I want to make sure I meet deadlines by filing early whenever possible. Moreover, this has the advantage of making it less likely a court will adjourn a return date to permit a party more time to file papers. In the past I have pointed out that I already gave my adversary more time than was standard when objecting to an adjournment request, and in at least one situation, this argument was successful. Accordingly, this strategy can even help prevent an adversary from dramatically increasing the time they have to file papers, which could have a material impact on the papers produced for a given motion cycle.
In the end, litigation deadlines often require lawyers to work on nights and weekends so they can prepare papers on tight timeframes. However, whenever possible, it might be courteous and make strategic sense to file papers earlier than required whenever possible.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothman.law.
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