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Why Do Courts Still Deliver Many Legal Documents By Hand?


A woman in New York City recently served her husband with divorce papers using Facebook. A judge said this was fine after the woman spent years trying to file for divorce by having papers served to him by hand. And this got Steven Henn from our Planet Money team wondering why courts still insist on delivering so many legal documents the old-fashioned way.

STEVE HENN, BYLINE: This idea of serving a summons by hand - delivering a legal document in person that orders you to appear before a court - this is a pretty old idea. In fact, it dates back to the Middle Ages - think, like, Robin Hood and the Sheriff of Nottingham. For centuries, only sheriffs could serve a summons to appear before a court. And these documents had a special name.

AMALIA KESSLER: In the Court of Common Pleas it was the writ of capias ad respondendum.

HENN: The writ of capias...

KESSLER: Ad respondendum.

HENN: Capias ad respondendum. Amalia Kessler is a professor of law and history at Stanford. She says, translated, this writ means to capture for a reply. And in the Middle Ages when you received a writ like this, the sheriff would physically grab you, capture you and drag you bodily into court. Now, over the last 500 years, the system has evolved, albeit a bit slowly. We no longer arrest people for allegedly owing money. But in many places, sheriffs still deliver these kinds of summonses - these legal documents - by hand.

So where are we?

GARRETT BROWN: We're in Oakland on Church - we're about to be on Church Street.

HENN: In California, sheriffs still serve summons, but private businesspeople can as well. They're process servers - people like Garrett Brown. And today, Brown is delivering a notice of eviction.

BROWN: It's not the worst neighborhoods, but...

HENN: One boarded-up house.

Now, the idea is, in a civil suit, you have a plaintiff and you have a defendant. In this case, the plaintiff's the landlord and the defendant is the family facing eviction. And you want an unbiased third party to let the defendant know what's going on, that they're being sued. You want to make sure they know and that they have a chance to defend themselves in court. So making absolutely certain that these notices get into the hands of the people that need them is important.

BROWN: You ready?

HENN: Yep.

Brown has rolled up on a dilapidated house. He jumps out, introduces himself and hands off the papers.

BROWN: Have a good day.

HENN: That's it. The whole thing takes less than a couple dozen seconds.

It seems like your MO is to move quick.

BROWN: Yeah. I want to get in and out.

HENN: But no matter how fast Garrett Brown moves, serving legal documents this way - in person, by hand - is expensive and inefficient. It usually costs 40, 50, even $250 a document. And David Nill, who got into this business 30 years ago, says sometimes you run into people who just don't want to be served. Nill chased one guy for weeks. The guy was rich. He had a gate around his house, a secretary in front of his office. Nill couldn't get to him. And then he came up with a plan. Nill was young. He still looked like a kid. And one day he just bursts into this guy's office.

DAVID NILL: Huffing and puffing and, you know, I was very nervous and just told the receptionist that, you know, I just hit his car. And he came running out of the back. What do you mean you just hit my car? And I said, well, actually, I didn't, but I have some legal papers for you. Here you go.

HENN: Nill says it would have been so much easier if he could have just sent this guy a text message, sent him the document on Facebook. He imagines a system where this guy gets a notice on his phone, taps the link, his phone snaps a picture and shows him the document. A system like that, he'd be done in a snap.

Today, Nill delivers legal documents all over California. Most go directly to lawyers and courts, and most travel electronically. But he still hires process servers to deliver divorce papers and eviction notices in person. A usable electronic system for this simply doesn't exist. One reason, he says, is that each state has its own rules. Today in New York, Facebook can be used as a last resort. Federal courts have their own rules. Any app that tried to change this would have to challenge these rules state by state and court by court.

KESSLER: The law always is playing catch-up with changes in technology.

HENN: Stanford professor Amalia Kessler says federal courts in the U.S. didn't start sending legal process through the mail until 1983. And at that point, the Pony Express had been around for a while. Steve Henn, NPR News, Silicon Valley. [POST-BROADCAST CORRECTION: Nill suggests that an electronic system for serving legal papers could make delivery easier and faster in many cases. He believes that such a system should require a recipient to opt-in -- in other words, to agree to receive the document. If a person did not opt-in, delivery would not occur.] Transcript provided by NPR, Copyright NPR.

Corrected: April 24, 2015 at 12:00 AM EDT
David Nill's name was misspelled as Nils in an earlier version of this transcript. Also, a clarification: Nill suggests that an electronic system for serving legal papers could make delivery easier and faster in many cases. He believes that such a system should require a recipient to opt in — in other words, to agree to receive the document. If a person did not opt in, delivery would not occur.
Steve Henn is NPR's technology correspondent based in Menlo Park, California, who is currently on assignment with Planet Money. An award winning journalist, he now covers the intersection of technology and modern life - exploring how digital innovations are changing the way we interact with people we love, the institutions we depend on and the world around us. In 2012 he came frighteningly close to crashing one of the first Tesla sedans ever made. He has taken a ride in a self-driving car, and flown a drone around Stanford's campus with a legal expert on privacy and robotics.

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