Fax and email service should be mandatory

Attorneys should be required to accept service of papers in litigation matters by fax and email service (electronic service). One unnecessarily cost in providing legal services in litigation matters is staff time to copy and mail documents for service on opposing counsel. In multiple party cases, it can take staff hours of time to serve papers. That expense could be eliminated if fax and email service was mandatory. Presently, the attorneys in a case can agree, at their discretion, to accept service by fax or email. If they do not agree, papers have to be served by mail, overnight, or personal delivery.

Some Judges will try to use indirect influence to compel electronic service, but many do not. However, in the largest cases that are deemed to be “complex,” a judge can order electronic service. “The court may provide in a case management order that documents filed electronically in a central electronic depository available to all parties are deemed served on all parties.” California Rules of Court, Rule 3.751. It is my understanding that only a small percentage of cases are deemed to be “complex.” In this day and age, Rule 3.751 should be applicable to all cases in California.

It takes a lot more staff time to either mail, overnight or personally serve papers than it takes to serve papers by fax or email. Service by email is obviously the most cost effective method because it merely requires creating pdf files.
Ironically, many attorneys are now having incoming documents scanned. So having the documents sent to them by email, as pdf files, would actually be more convenient for opposing counsel. Nonetheless, in my experience, many attorneys refuse to accept electronic service.

In addition to the cost savings, there is the carbon footprint to consider. Obviously service by mail, overnight or personal delivery leaves a bigger carbon footprint than email service. Presumably, email service leaves no carbon footprint.

Furthermore, the Code of Civil Procedure requires the opposition and reply papers be served to ensure delivery by the next business day. That means that overnight (Federal Express) or personal delivery is required to serve papers.

So why do some attorneys refuse to accept fax or email service? The true answer is probably because they are jerks. Please contact me if you have any compelling reasons for or against mandatory electronic service.