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The death of fax

Lawyers have been one of the last holdouts using fax machines. Part of that was simply the Rules of Civil Procedure, which made very specific provision for service by fax, and a fax confirmation sheet was good enough for the court that something had indeed been sent. Service by email, however, used to require a court order, or require the consent or the active confirmation of the recipient, something that many lawyers or their staffs declined to — or did not bother to — provide. As one might imagine, when given the choice between “binding proof that they got it” and “they got it, but don’t have to admit that they got it” lawyers naturally chose the better option.

Well, faxes are dead on the stroke of midnight on New Year, 2021.

As of January 1, 2021 all of the provisions in the Rules of Civil Procedure regarding faxes are gone and service by fax will no longer be provided for. All of the provisions regarding service by fax will now be service by email, and the old requirement for consent or confirmation will be disposed of. Email will be the electronic default setting, rather than the grudging and problematic option.

There is one exception to the removal of fax provisions: confirmation forms. For motions and applications lawyers have have to send a confirmation form no later than 1400h three days before the hearing date (four days if there is a holiday within those three days). If they don’t, the matter doesn’t get listed, they lose that date and have to go through the time and delay and expense of setting a new return date. That hasn’t changed, lawyers still have to confirm, and confirmation to the court [but not to the other lawyer] can still be by fax. (Lawyers can also confirm to the court by email.) That fax vestigial option will probably stay that way until fax machines become rare oddities in law offices and there is no point to retaining the technology in courthouses. (Sort of like typewriters did, staying — unused — in offices for years after everything had gone to word processing.) When that happens the Rules will no doubt be amended to remove that last mention of fax machines.

What does this mean for lawyers? Well, for a start lawyers can, if they want, get rid of their fax lines and fax machines at 0001h on January 1, 2021. That will save them whatever they pay for telephone lines and/or efax services, which for even a small office can be hundreds of dollars a year.

Note that I said “if they want”. They won’t. Lawyers are an inherently cautious bunch for the most part, Most will probably do what I plan to do: hang on to the service(s) for about a year or so, just to be sure that they don’t need it any more, and permit time for the word to get around. (Our website has not had a fax contact number for many years now, so that need not be changed.)

When and only when we’re sure — to a lawyer’s definition of “certain” — that we can safely do without faxes will we lawyers will send our fax machines to wherever we sent the typewriters, and yet another once-new-and-cool technology will move into the “Remember When?” category.

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