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Some lawyers are willing to say anything. Lest you think this an exaggeration, I submit to you a section from a brief I am filing today. The background is as follows: the parties are arguing over the application of a particular rule. At issue is the ordering of specific events: Is B supposed to happen after document A has been filed or at the same as A is filed? The verb is the rule is “filed”. We noted that the “filed” is the past-tense of “to file.” The opposing party argued in response, “the word ‘filed’ is present tense.” Below is our legal argument that “filed” is past tense:

On page 5, line 22 through page 6, line 11 of the Opposition, the Trustee advances the novel argument that “filed” is not a past tense of the verb “to file”. This argument is both bizarre and frankly illiterate. In fact, she actually writes this sentence, “the word ‘filed’ is present tense.” 

The Trustee is simply wrong. In English, the simple past is most often formed by the addition of the letters “-ed” to the end of the base form of the verb.[1] “The simple past. Generally, this tense refers to events, habitual activities, and states in the past.”  (“Tense,” in The Oxford Companion to the English Language, ed. Tom McArthur (Oxford: Oxford University Press, 1992), 1031.)

And just to make the point clear, the courts have weighed in and stated the obvious: the simple past of “to file” is “filed.” Petitioners cited two decisions in the moving papers[2]; but so that there is no doubt, here are a few additional cases from other jursidcitions: In re Lehman Bros. Securities & Erisa Litigation (S.D.N.Y. 2015) 131 F. Supp. 3d 241, 267 (“Note that “filed in” is a past-tense modifier”); Krys v. Sugrue (S.D.N.Y. 2012) 859 F. Supp. 2d 644, 653 (“Congress’ clear use of the present tense for “pending” cases and past tense for “filed” cases forecloses defendants’ argument.”); Pope v. Gordon (Ala. 2005) 922 So. 2d 893, 898 (“Additionally, the use of the past tense in the phrase “and filed in the circuit court” ”).

The Trustee’s “argument” is based upon the assertion that since the Rules of Court contain uses of the perfect tense (the addition of “have been” for English verbs), the past tense/preterite “filed” is not past tense: which makes absolutely no sense. The perfect and preterite involve different aktionsart of the verbs (the lexical aspect used to emphasize different aspects of the relationship of the present to the past): “The non-progressive perfect refers to an event in the past with current relevance: I’ve broken the window indicates that I broke [note: the preterite of to break] the window and that the window is probably still broken.” (“Tense,” in The Oxford Companion to the English Language, ed. Tom McArthur (Oxford: Oxford University Press, 1992), 1031.) 

[1] “[J]umped is the past tense of jump.” “Preterite,” in The New Fowler’s Modern English Usage, 3rd ed., ed. R.W. Burchfield (Oxford: Oxford University Press, 1996), 621. For the convenience all, here is a link to all of the various conjugations of the verb “to file”: https://conjugator.reverso.net/conjugation-english-verb-file.html

[2] In the moving papers, citation was made to a couple of cases which explained that “filed” is a past-tense use of the verb to file. In an inexplicable attempt to “distinguish” these cases, the Trustee notes that those cases did not involve a trust petition – which is irrelevant to the question of grammar.