As a kid, I was impressed by how Detective Joe Friday (Jack Webb) in the television show Dragnet could calm even the most upset witness to a heinous criminal act with his deadpan, “Just the facts, ma’am.” I resolved that I too would use the same tone of voice to calm my mother when she stridently decided that summer mornings were better spent doing household chores (or confronting the piano) than watching the daily 9 AM “Early Show” on Channel 8 with such classic films as A Night at the Opera, Twelve O’Clock High, and Stagecoach.
Did this strategy work? Let’s just say that Joe Friday's detached tone of voice worked a lot better for Joe Friday than 9-year-old Chaddie Busk trying to convince his mother (a formidable lady who has since leveled up) that the Early Show was indeed worth watching and that the chores - and practicing the dreaded piano - could wait.
But I digress. As a contracts lawyer, we now ponder the weighty question in the AdamsDrafting Blog of whether, in a contractual notice provision, the drafter should use “telecopier,” “fax,” or “facsimile” to describe “legal” notices sent by this device. After some discussion, Ken Adams (a celebrated plain-language contract-drafting scholar), concludes that the term “fax” is now perfectly appropriate even in formal contexts.
Unfortunately, lawyers hardly ever agree on anything. That is why, with few exceptions (you know who you are), I try to avoid their company. (I occasionally get a brochure inviting me to take a cruise with my fellow lawyers. These colorful invitations immediately go into the trash. Can you imagine being on a cruise ship with all lawyers, hitting an iceberg, and then arguing the issue of who gets to leave in the lifeboats as opposed to treading water? Yikes!)
So I felt compelled to post the following comment on Ken’s Blog:
"I have an easy solution to this problem: leave out notice via fax, facsimile, or telecopier entirely. My client has only a few fax machines on each floor of its headquarters, and it is not unheard of that an important letter sent via fax has languished in a fax machine because no one bothered to check the machine or the wrong person mistakenly picked up the letter. In my opinion, the best way to assure effective contractual notices is either by overnight courier or U.S. certified mail, return receipt requested. Then there is the matter of email notices. I allow for email notices as valid if specifically acknowledged by the recipient. Finally, as other commentators point out, the era of the fax machine is coming to a close, so the tried and true notice provision allowing for faxed notices requires updating."
To which Ken kindly responded:
"Chad: I acknowledge in my post that fax is unlikely to be with us much longer. And your comment reminds me that I should tackle the question of email notices."
I'm not a big fan of receiving contractual notices by fax unless my client is a smaller operation with only one or two fax machines that are regularly monitored for what's in their "received" trays. Even so, it's better to set up a generic email address (e.g., legal-notices@yourcompany.com) that is proxied to the email addresses of the company's president/CEO, CFO, general counsel, and their administrative assistants.
Do your contracts allow for receipt of legal notices via fax? What about email?
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