The Risk Manager, Fall 2006

  • Do you take it for granted that your mail gets to the proper destination and on time if you mailed it with a reasonable amount of time to get there?
  • Do you assume that the court clerk received and deposited your mailed filing fee and promptly filed the legal document accompanying the fee?
  • Do you avoid using overnight, express delivery companies with Internet tracking service to cut down on costs?
  • Are you familiar with the postage rates, weight limitations on mail, and restrictions on where mail can be dropped?
  • Do you docket time sensitive mailings for follow-up to confirm arrival at the correct destination?
  • Do you have an office procedure to confirm that mailed filing fees have been deposited in a timely manner?
  • Do you use “Address Service Requested” on first class mail?
  • Do you get the temporary address of clients who go south for the winter as part of your routine client intake procedures?

We have had claims based on court clerks allegedly failing to file mailed complaints, mortgages, and other legal documents either in a timely manner or not at all. In one case the clerk’s office was in the process of moving when the mailed document should have been received. In other cases the clerk’s position was that the mail was never received. The result is that deadlines and statutes of limitations are missed and unrecorded mortgages go unnoticed until it is too late to avoid a claim. Without irrefutable evidence that the document and filing fee were timely received by the clerk, a lawyer has little defense against a malpractice claim. Ultimately, it is always the lawyer’s responsibility to determine that mailed documents are received and filed in time.

Every practice should have tight mail control procedures for both incoming and outgoing mail. For all outgoing mail double check addressing to make sure that a complete address is used including any suite number and nine digit zip code. Use the Post Office’s ancillary service “Address Service Requested” for all outgoing first class mail. With this service for a small charge the Post Office will forward mail to changed addresses and notify you what the changed address is. Check with the Mailing Requirements Department of your Post Office for guidance on how Address Service Requested is used for outgoing mail. If you are representing clients who go south for the winter, make sure you get their temporary address as part of your client intake procedures.

All outgoing mail that contains time sensitive documents must be sent in a way to track the date of its arrival at the correct destination. This can be done any number of ways, the most obvious being via registered U.S. mail return receipt requested with signature of the receiving person. Overnight mail and express delivery services provide both Internet tracking and recipient signature service. These services are used by many, if not most, firms for time sensitive documents.

When filing appeals to the Court of Appeals or the Supreme Court be sure to consider the requirements of CR 76.40 (2) Timely filing:

To be timely filed, a document must be received by the Clerk of the
Supreme Court or the Clerk of the Court of Appeals within the time
specified for filing, except that any document shall be deemed timely
filed if it has been transmitted by United States registered (not
certified) or express mail, or by other recognized mail carriers, with
the date the transmitting agency received said document from the sender
noted by the transmitting agency on the outside of the container used
for transmitting, within the time allowed for filing.

None of this is rocket science. It is much harder than that. It requires constant attention to detail by docketing time sensitive outgoing mail for follow-up to assure that it was received in a timely manner by the right addressee and, when a filing fee is involved, that the fee was deposited. If the fee is not deposited in the regular course of business, you are on notice that something is amiss requiring prompt action. Never, never send by regular mail any time sensitive document when there is not enough time to get the irrefutable confirmation that it was received on time. Following this rule could save you from a malpractice claim and a major out-of-pocket expense.