Lawyers are accustomed to jumping through all kinds of hoops to comply with court rules and judicial directives. Some of these requirements make sense, since courts need to ensure that parties receive notice of proceedings and have an opportunity to protect their rights. However, other requirements seem to serve little purpose other than making life more difficult for attorneys and their clients. One area in which judges sometimes impose unnecessary burdens is the service requirements included in orders to show cause and other judicial orders. Although special methods of service are appropriate in certain circumstances, judges should be more practical about how they require lawyers to notify parties and counsel about court proceedings.
Anyone who has practiced litigation for a meaningful amount of time has probably encountered an order to show cause that contains unusually burdensome service requirements. For instance, a judge might require that papers be personally served on an attorney who has already appeared in the case, even though that attorney participates in electronic filing and receives notifications whenever documents are filed. Other judges might require service by certified mail or overnight delivery, even though electronic service would be faster and more reliable. While such precautions might seem reasonable in the abstract, they can impose substantial burdens without providing much additional protection to litigants.
One particularly frustrating situation arises when judges require personal service on attorneys who are already participating in litigation. In many jurisdictions, lawyers routinely receive electronic notifications about documents filed in their cases. Requiring a process server to physically deliver papers to an attorney who has already received those same documents electronically can seem like a pointless exercise. Attorneys are not necessarily sitting in their offices waiting for process servers, and many lawyers work remotely or maintain irregular office schedules. A process server might need to make multiple attempts to locate an attorney, increasing costs and delaying proceedings.
Certified mail requirements can be similarly frustrating. Judges sometimes require attorneys to send papers by certified mail even when opposing counsel has consented to electronic service or already received the documents through an electronic filing system. Certified mail can take days to arrive, and delivery is not always successful, particularly when recipients are unavailable to sign for the mailing. Moreover, certified mail receipts do not necessarily establish that the intended recipient actually reviewed the documents. In many circumstances, an email acknowledgment from opposing counsel would provide stronger evidence of actual notice.
Service requirements can be even more troublesome when judges direct lawyers to personally serve parties rather than their attorneys. This is particularly true when the party is a corporation or other business entity that has ceased operations, moved from its former address, or otherwise become difficult to locate. A lawyer might know that a company’s former office is vacant and that its principals no longer work at the addresses listed in public records. Nevertheless, attorneys may be forced to hire process servers and make repeated attempts at physical service simply because a court order requires it. This can turn what should be a straightforward notification process into an expensive and time-consuming ordeal.
In such situations, attorneys may have much better ways to ensure that the relevant individuals actually receive notice. For example, counsel might have a working email address for a company’s principal, an established relationship with the company’s attorney, or another reliable means of communication. Sometimes, the lawyers involved in a case know exactly how to reach the people who need to receive the papers, even though traditional service methods would be difficult or ineffective. Requiring personal service in these circumstances can elevate form over substance, particularly when there is no legal requirement that service be accomplished in that manner.
Judges sometimes require personal service or other formal methods of notification for legitimate reasons. Due process requires adequate notice and an opportunity to be heard, and certain statutes and procedural rules mandate particular methods of service. Ex parte applications, contempt proceedings, and matters involving individuals who have not yet appeared in an action may present special concerns. Nothing about the convenience of electronic communication should override a legal requirement or compromise a litigant’s rights. However, judges should distinguish between situations in which formal service is legally necessary and those in which less burdensome methods would accomplish the same objective.
The legal profession has spent decades adopting electronic filing systems and other technologies intended to make litigation more efficient. It makes little sense to embrace these innovations while continuing to require unnecessary physical deliveries of documents that everyone already possesses. Judges understandably want to ensure that their orders are followed and that litigants receive proper notice, but additional procedural requirements do not always provide additional protection. Sometimes, they merely increase costs, create logistical headaches, and distract attorneys from the merits of a dispute. Courts should exercise their discretion to impose service requirements that are legally sufficient and practical rather than treating personal service and certified mail as necessary safeguards in every situation.
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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