service by telegraph

It hasn't been a very good evening for the Goddess. I have a brief due in three places in Everett--opposing counsel's office, the Clerk's Office, and the Motions Coordinator-- tomorrow by noon. Everett is 40 miles away from my office. I am due in court in Seattle tomorrow at nine on a different matter, so the brief in Everett had to be sent off tonight to all three locations. How did I do this? By the miracle of remarkably primitive technology.

At the beginning of this case in Everett, I negotiated with opposing counsel the right to serve him with papers by fax, in return for accepting service by fax. In Prisoner's Dilemma terms, we have chosen to cooperate rather than defect in this round.

This did have to be expressly negotiated. Oddly enough, although Washington state's Civil Rule 5(h) expressly provides for service of pleadings by telegraph, Civil Rule 5(j) reserves the issue of service by fax, which would actually be useful, for when the courts get around to editing their rules. In 1989, the Washington State Bar Association considered a proposal to recommend to the Supreme Court adoption of a rule allowing service by facsimile. The proposal was defeated by a tie vote. See O'Neill v. Jacobs, 77 Wash. App. 366, 890 P.2d 1092 (1995), fn 2.

And General Rule 17(a)(6) says that no attorney in this state can be required to have a fax machine. No attorney in this state can be required to have a brain in their head, either, apparently.

I am old enough to remember the days of Telex before faxing really caught on. Shockingly superficial research on my part suggests that the first fax system was established in Germany in 1982, but those Telex and cable addresses have been around since the 1920's. Telex, unfortunately, is the Betamax of telecommunications, and you rarely see those addresses anymore. And telegraphy has totally dropped off the map. But fax machines are ubiquitous. Nonetheless, Washington caselaw as recent as May of this year says that service by fax is insufficient to give notice to the other side. Wallace v. Kuehner, __ Wn. App. __, 46 P.3d 823 (2002). Bizarre.

At any rate, step one was to fax my brief to OC a full twelve hours before it is due, which I could do because of our agreement.

Step two was to file my brief by fax in the Snohomish County Clerk's Office in Everett. Fax filing in Washington state can be a little tricky (the rules are mysteriously silent on court filings by telegraph). The same rule, GR 17(a)(6), that says that attorneys can't be required to have fax machines also says that county clerk's offices can't be required to have fax machines, a rule that makes absolutely no sense to me given the role of the Clerk's Office and the cost of a fax machine nowadays. So every county in this state has different rules and forms for fax filing. I love the fact that these madly varying rules are posted on the subpage of the Court Improvement Committee of the WSBA. Why don't they change the rule to make fax machines mandatory in clerk's offices? That would improve the courts. But I digress.

Now, Snohomish County doesn't exactly encourage people to file by fax. The Superior Court website contains nary a mention of this service, although they do let you confirm motions by email (remarkably civilized!), and you have to register in advance to use fax filing. Also, you get charged $3 for the first page, and $1 for every page thereafter, for each separate document that you send. There are also page limitations during the day, but none for Midnight Faxers like me.

Step three was to fax the working papers, with instructions for delivery tomorrow, to the messenger service office in Everett, but that required no forethought. They're pros, they can handle it. No word on whether they know Morse Code.