The Transition to E-Filing of Pleadings

It was announced that the slow march to changing the filing of court pleadings to being all electronics is inevitable. The court has not set a deadline for when pleadings will have to be filed by computer but it is anticipated it will be within the next 18 months. This is a major change in the way that cases are brought to court in that handwritten or typed pleadings have been used from the beginning of our system of jurisprudence up until now. Since the process is inevitable there is no sense in arguing whether it is a good development or a bad one. Instead, it is useful to look at the ways that filing by hand helped us and the transition that lawyers will have to be making in order to see the new system be successful.

Formerly, pleadings were drafted by hand, reviewed, and then physically filed with the court. There would then be a period of lag time before orders of notice would issue and those would have to be served. In some circumstances, the complaint or writ as it was called back then would be first filed with the court and then served on the defendant. In any event, there was more time to consider how the pleadings would be drafted and whether the case might be resolved somehow before the actual machinations of the court system began to move forward. It was common to send a writ to an insurance company for an accident case before it was actually filed with the court. These delays allowed arguments and facts to ripen about the case before the switch of litigation was turned on and the matter proceeded forward in court.

Technology has made our lives faster if nothing else. So too with the litigation process, electronic filing cuts out many of the costly delay steps between when the decision is made to go forward and when the case is actually on track in court. Faster is better and less expensive. This is only true, however, if the case has all of the elements of ripeness that are necessary and proper to call into play its resolution.

It is assumed that the court will have the technological structure in place to deal with the deluge of filings that are sure to follow. It does not make sense to make the filing function so much easier if all of those pleadings will simply be bottled up with the next step in the process that still requires manual processing of the file as they do now. In other words, it does not make sense to speed up step one if steps two, three and four will still take the same amount of time to process the pleadings.

So much of our lives are spent performing functions that were until recently performed in person. A large percentage of shopping that was once done inside stores is now done through the computer. Justice is not like products that can be viewed and purchased online as easily as they can at a store. The personal touch is an element of fairness that cannot be left missing from justice. Like all other changes in the legal system over the past 50 years, we will adjust. It is hoped that integrating technology into our system of jurisprudence will improve the administration of justice and individual’s experience of that system.

By: Kent Barker

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Postnuptial Agreements

As of an August 21, 2013 decision, a postnuptial agreement between spouses on the disposition of their property in the event of divorce or death may be enforceable.  The N.H. Supreme Court reasoned that, while our divorce statutes are designed to ensure a fair outcome regarding property distribution, there is no reason why those statutes “should, in every case, override the mutual agreed-upon will of consenting adults.”

Our Court held that a party seeking to invalidate a postnuptial agreement must prove that:  “1) the agreement was obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of a material fact; 2) the agreement is unconscionable; or 3) the facts and circumstances have so changed since the agreement was executed as to make the agreement unenforceable.”  Further, the Court held that “the parties must exercise the highest degree of good faith, candor and sincerity in all matters bearing on the terms and execution of the proposed agreement, with fairness being the ultimate measure.”

This is a novel development in New Hampshire divorce law, but the principle is really nothing new:  if a Court thinks that a contract is fair, the Court will enforce it. If it doesn’t, it won’t. That’s the same way the Court handles prenuptial agreements.

By:  Peter G. Webb

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