The Bar News

Service by email coming January 1

[A version of the following article by Chicago writer Maria Kantzavelos will appear in the January Illinois Bar Journal as part of a longer piece about the Illinois Supreme Court's e-filing initiative.]

Effective Jan. 1, attorneys and parties involved in civil cases in circuit courts statewide must include an email address for service of documents on appearances and on all pleadings filed in court. The amendments to Supreme Court Rule 11, announced in October, make the following changes:

Rule 11. Manner of Serving Papers Documents Other Than Process and Complaint on Parties Not in Default in the Trial and Reviewing Courts

(a) On Whom Made. If a party is represented by an attorney of record, service shall be made upon the attorney. Otherwise service shall be made upon the party.

(b) Method. Papers Documents shall be served as follows:

(6) by transmitting them via e-mail to the designated e-mail address of record for the attorney or party; or

(7) by transmission through a service provider that provides an electronic in-box for those parties registered to use the service.

(d) E-Mail Address. A party or an attorney must include on the appearance and on all pleadings filed in court an e-mail address for service of documents.

In addition to striking the word “papers” and replacing it with “documents,” the amended rule permits litigants to serve those documents using the designated email address of record for the attorney or party. And – importantly – it requires lawyers to receive documents served by email as valid service.

The rule amendment expressly allows transmission through a service that "provides an electronic in-box" for those registered to use it, a change that should help avoid the file-size limits and other problems inherent in sending email with large attachments.

But electronic documents come in countless formats – does the new rule mean lawyers must acquire software for every conceivable format so they can convert each document to a readable form? “I think good manners solves this problem,” said Chicago lawyer Bruce R. Pfaff, chair of the Supreme Court’s Special E-Business Committee. “If someone sends a lawyer material in a format that cannot be downloaded, a simple request to provide it in another format should solve the problem.

“If it truly cannot be converted to a basic format like PDF, you then have a special problem,” he said. “When lawyers have special problems that cannot be resolved, they need to go to court. I suspect the instances will be rare and no more so than in present litigation.”

For lawyers who wonder how they will verify receipt of service, Pfaff said, “You don’t. When you serve by regular mail, you don’t ‘verify receipt of service’ and you don’t need to do it when serving by email. If service is challenged at a hearing, the sender may wish to print the sent email showing the correct e-address or verify that she hasn’t received a bounce back.”

E-business committee member Trent Bush of Sterling said the email service will be “convenient for both sides” in a lawsuit. “Traditionally, I would have to mail a copy of everything I file with the court to opposing counsel and parties,” Bush said. “Now you can do that electronically, rather than sticking it in the mail.

“People have accepted communicating by email as…appropriate, economical, and convenient….I think that the ability to serve parties by email will be welcomed by Illinois attorneys,” he said.

Before the rule change, Bush said, a lawyer walking into the office on a Monday morning might discover that the pleading sent by an opposing counsel on the previous Friday had been sitting at the fax machine all weekend, or is in the day’s bundle of snail mail.

With the popularity of smart phones and the amended rule allowing documents to be served via email, Bush said, “You’re going to know that that pleading is out there, rather than maybe catching up with it a few days later.…It will allow attorneys to be a little more on top of their cases.”

Posted on December 12, 2012 by Mark S. Mathewson

Member Comments (6)

Unlike fax, the rule does not permit opting out. What about lawyers who do not have email addresses? When is service effective? Is it like postal service or is it personal service? Shouldn't it be effective the next business day? It was just adopted without any input from the bar. Is has too many issues to become effective on 01012013. Will the Clerks have revised forms? Why should I bear the cost of printing out the other side's papers? Shouldn't it require that tghe amil be in doc, wpf or pdf?

I think these are all good points, and valid concerns. And yes, I think this new rule is just coming way too soon... In the past, Lawyers have NEVER had any "obligation" to even maintain any e-mail address, and I don't see why they should? With so many of the perils of e-mail spelled out in these comments, inherently to e-mail, and the fact some lawyers don't even have an e-mail address, certainly as it applies to Pro Se litigants, some of them don't even have computer access, this should be addressed...

Also, I didn't see a comment yet on here, which is that we've had this option ALL along- because the parties can agree on their own, or even in a court order, to provide COURTESY COPIES to each other, via fax, e-mail, or what not. That option has always been present, without this rule, effectively "waiving" service- and apparently nobody thought out all the additional problems so well outlined in your comments, this will cause. And more, which haven't yet even been thought of likely. I think, if anything, since this option in some form already has existed, a rule could come out to encourage more use of e-mail or more parties waiving service and accepting e-mail, WHEN that is a good option and opposing parties/counsel can be trusted not to abuse it, including in the emergency motion filing systems which sometimes are abused w/ notice and process, etc. And yes, its true now the receiver has to print everything out, for what that's worth, sure its a good idea for higher tech. firms to manage all documents first as scanned files on their computers, but some firms have other systems which work better for them, even if the old-fashioned way. But to impose it as this rule, including even upon non-lawyers who aren't in any business related to courts, seems to read, just does not seem fair or possible, and if some think its such a great idea, then encourage it, see how it works, but I don't think it should just be imposed on everyone, as this seems to read, and some people or lawyers don't even have e-mail accounts, or work e-mail accounts, some intentionally, so they can avoid the many problems which do become inherent with just having any e-mail account... This includes the absence of non-verbal communications and the confusion and fallen relationships all too common with e-mail communication...

@ Jonathan:

Immense time and resources (client money) are spent preparing and mailing documents to other parties. At my office, we go through hundreds of pages each day for that purpose alone.

Since every modern law office has a computer where files can be stored, organized and retrieved more quickly than paper, this rule could not have come sooner. The federal district courts have been e-filing for years, and it seems to work well for them.

This new rule will open a HUGE can of worms. It's very easy to manipulate information in a computer, I just think this is dangerous and is putting lawyers at greater risk of missing courtdates or simply completely missing the existence of a document. Do I now have to spend 15 minutes of my day checking my spam folder too for motions that I might receive by email? This is ridiculous. There should be an opt-out option.

Why are we just reading this in this news release on 12/13/12 when it takes effect on 1/1/13 and according to the article the amendment was announced in October? The IBJ article to be mailed in January will be equally timely.
I wonder how long it will be before every marketing person in the world will acquire a database of attorney emails from court filings and inundate us all with junk email masquerading as legitimate email similar to the enormous overnight growth of new junk mail from everyone and their dog providing continuing legal education courses?

Hallelujah! Service by e-mail is convenient and environmentally responsible.

But, there are some missing pieces.

-Rule 12 needs to be amended to indicate when service is effective.

-Rule 12 also should provide in general a protection against setting up a motion days in advance and then serving it by whatever means at the last minute.

-Some provision needs to be made for spam filters, etc. I had a problem for a while when an organization in New Zealand called SORBS blacklisted my IP number and I missed a number of e-mails.

-Documents should be sent by pdf. It is a universal standard.

I maintain a special address, Notices@[mydomain].com. This prints the document on my office copier and sends it to all lawyers in my firm. If I am on vacation someone in my firm will get it. A solo can forward the address to whomever is watching the practice while on vacation.

For some lawyers this will be a hardship; for most a boon.

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