Attorneys Should Position Themselves to Receive Documents in Multiple Ways, Rather Than Risk Not Receiving an Important Document or, Worse, Losing Their Credibility
Litigants and attorneys are required to send notice of filings to all parties as a part of due process notice requirements and to permit timely responses and participation by all sides.
A recurring problem is a claim by an attorney that they did not receive an important document, such as a subpoena, discovery requests, a settlement offer, or an order. It is a tactic by the attorney to obstruct progress in the case and to conceal lack of preparation. As default rulings and judgments are disfavored, attorneys claim lack of receipt to exploit courts' general play-it-safe disposition. It is a very frustrating problem because it is generally a last-minute surprise, it unfairly and wrongfully suggests that the document was not sent, and, unfortunately, it too often results in an unwarranted continuance, causing unnecessary delay in the case.
The solution is to set up procedures and redundancies for sending out all documents in every case and to know the rules about notice requirements.
The rule is that when a letter was prepared for mailing, stamped, and placed in the mail, a presumption is raised that the party to whom it was directed received it. This rule endorses the establishment of written office procedures for sending documents: when sending a document, contemporaneously write a cover letter for the document and record the postage expense. If you write a protocol for sending mail and circulate it in your office, then practice the process every time as a matter of course, you bolster the presumption that you properly sent the document. When a motion you filed is set for hearing, enclose another copy of the motion with the order for hearing, and include a cover letter mentioning the hearing date and time that is set out in the order for hearing. This way, no one can credibly complain that they didn't know. Reference the nature of the hearing and the hearing date and time in your case management system each time you enter billing concerning the hearing, even noting it when you record the postage expense. This way, you can demonstrate that you sent actual notice to all parties.
There is a more specific rule for court orders. When the attorneys write the order from a matter taken under advisement, the attorneys are obligated and responsible for monitoring the case filings in the court clerk's office to determine the appeal time. As the attorney participated in preparation of the order, it is not an excuse later to claim "I didn't know" about appeal time beginning.
Presently, Oklahoma attorneys are permitted to "opt-in" to receiving service by email. This option actually contributes to the problem, as attorneys who receive documents by email sometimes claim they did not receive notice of things emailed to them because they do not agree to accept service by email, and not because they did not actually receive the email. The writing is on the wall for those attorneys as more jurisdictions move toward electronic filing and delivery processes. The American Bar Association's Model Rules of Professional Conduct requires lawyers to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. At any moment, any jurisdiction could adopt that rule.
Unfortunately, there are attorneys who make the "I didn't get that claim" in virtually every case they're in. Once you face this kind of attorney, you will have an extra burden to avoid the unnecessary delays that could result from their false claims. An attorney once told the judge that he did not receive a proposed draft of an order from my office. As he spoke, his case file was open and the draft and our cover letter were fastened in the file at the top of the other documents. I pointed this out and he still denied receiving it. Another attorney claimed that she was not receiving anything we mailed, emailed or faxed. Oddly, she would make this claim at hearings on the motions she claimed she did not receive, raising the question, "If you didn't get it, how did you know about the hearing?" We started sending everything to her by certified mail, return receipt requested. None of the certified mail was picked up. Due to the expense associated with certified mail, we sent all correspondence by regular mail, fax and email, then we filed a certificate of mailing in the case for every piece of correspondence. This did not stop her claims about not receiving the correspondence, but it finally stopped the continuances and delays. In yet another case, a court was reluctant to issue default judgment even when presented with green cards showing service on the opposing attorney. We were required to personally serve the opposing attorney and his client in order to obtain relief for our client. More recently, in an appeal the opposing attorney claimed he did not receive our brief for two weeks. When presented with our dated, signed cover letter and postage billing entry dated the same day, he reluctantly disclosed that he had relocated his office without telling anyone. He had attempted to deceive the court by blaming our office for the delay.
The "I didn't get that" comes with several terrible risks. One great risk is that you may not receive important information for your client. As attorneys, we are agents for our clients. Our clients rely on us to receive and share information material to their lives. If you are not properly set up to receive information for your case, you could do irreparable harm to your client. Another great risk is loss of credibility. Once it is demonstrated that you cannot be trusted on a simple matter like mail and email, your credibility is destroyed. How can the judge take your word on anything, the facts of the case, the applicable law, or any other thing, when you misled everyone about the mail? It is not worth the risk.
