Have you noticed the declining quality of post office mail delivery lately?

I realized the United States Postal Service is in serious decline when I received a plain white envelope from them in my post office box last summer.

Wondering why USPS would be writing to me, I opened the envelope to find exactly one half of a beautiful condolence card (from Papyrus!) that I sent to my aunt after her husband died. It had been ripped straight down the middle so that when I opened it I was reading partial sentences like "I'm so sorr...if there is any...in my thoughts..."

At least I found out what happened to that card. Plenty of other times I've been left wondering what in the world is going on. Over the last few years I've: had clients mail me checks that never arrived; family members send me birthday presents that disappear into thin air on their way to my mailbox; ordered priority mail for a set of coffee mugs that got stuck for two weeks in a post office processing center in downtown Manhattan (I spent an entire week calling the post office looking for them); gone to my post office searching for a piece of missing mail only to find a box FULL of mail that had not been delivered to me for 6 months (apparently, the regular mail carrier couldn't reach my mailbox; so the mail was only delivered when the regular carrier was on her day off and a taller carrier walked the route).

Apart from the irritation caused by having to hunt down mail that should be delivered to a personal mailbox, why does this matter?

Well, in the world of legal reasoning it matters a lot.

Many cases hinge on whether or not a party can prove that it mailed a particular document (a pre-foreclosure 90-day notice, for example). If a party can show it delivered the document to USPS, then it meets the burden to prove the document was mailed; and the court automatically presumes that the intended recipient received the document.

It's called the presumption of mailing and it's been a part of New York jurisprudence for a long time–at least since the Court of Appeals decided News Syndicate Co. v. Gatti Paper Stock Corp. (256 N.Y. 211) in 1931.

In News Syndicate, the court ruled in favor of a plaintiff who was suing for payment of a bill that he claimed he mailed to the defendant. The plaintiff submitted "due proof" of mailing the bill to defendant (i.e., he delivered it to USPS) and "the mailing of the bill created a presumption that it reached its destination." Why is this presumption legally sound? Because it is "founded on the probability that the officers of the government will do their duty; and the usual course of business."

Apparently the News Syndicate court never experienced these "officers of the government" returning a torn-in-half condolence card or failing to deliver mail to their mailbox for months at a time.

In all seriousness, the USPS is not what it used to be and these days there is a real possibility that a piece of mail delivered to the post office will never make it to its intended recipient. Thus, we can no longer "presume" that one party has received a document just because another party can show he delivered it to USPS. At the very least, the presumption of mailing should be rebuttable to allow a party to prove that he in fact did not receive a piece of mail. But perhaps we need to change the law on mailing altogether, and require delivery of documents by private carriers (such as FedEx) or–joining the 21st century–by email.

I come across this issue all the time in my legal writing (especially in foreclosure defense, immigration, and bankruptcy cases). And because of my own experiences with USPS, I have no hesitation believing a client when they say they simply did not receive a document that was supposedly mailed to them. So I am making this my pet peeve issue this year: let's work together to change the presumption of mailing to meet our current reality of a less than reliable postal service.

Want to work with me on this issue? Get in touch!

Or, want me to apply my analytical mind to your pet peeve issue? Let me know that too. I love nothing more than helping you create new arguments.

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