One of the least-appreciated characteristics of legal work is that it is constantly changing. The rock-solid precedent that forms the foundation of an attorney’s finest argument can melt into air with the stroke of an appellate court’s pen. Less dramatically, courts constantly refine their precedent by issuing new opinions that take a new look at well-settled issues. And sometimes, the law simply outgrows the judicial box in which it is placed.
This seems to be the case with the "three-day" rule in civil litigation practice. Generally speaking, this rule states that a party gets an extra three days to respond to motions that are served by mail. The original intent of this rule was to prevent mail delays from shortening a receiving party’s response period.
When the federal rules began to provide for electronic service among parties as an alternative to service by mail, the three-day rule went along for the ride. The thinking was that practitioners would be more willing to agree to electronic service if they didn’t lose the benefit of the extended three-day response period.
However, now that the federal courts have moved to electronic filing, the reasoning for the three-day rule is beginning to look much shakier. The rule made sense when service by mail was the norm. It even made sense as an incentive for parties to move to electronic service of motion papers. But with the coming universality of electronic filing, the rationale for the three-day rule no longer applies. Electronic service of motions and response papers is instantaneous, so mail delays are no longer a problem. And if all litigants are required to subscribe to electronic filing, there is no need to incentivize practitioners to accept electronic service of motion papers from other parties. And yet the three-day rule persists in the Federal Rules of Civil Procedure, extending fourteen-day deadlines to seventeen days out of a concern for mail delays that don’t exist in the federal courts’ electronic filing system.
The three-day rule still makes sense for the Virgin Islands Superior Court, which uses much of the Federal Rules of Civil Procedure as its local procedural rules. The physical filing of court papers remains the only way to do business in the Superior Court. However, there has been a move afoot for several years to institute electronic filing in the local courts. When that day arrives, the three-day rule should join typewriters and carbon paper as relics of legal practices past.