Service of Process Lawyers
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What Is Service of Process?
The 5th and 6th Amendments of the U.S. Constitution require that each party of a lawsuit be fully notified of any actions taken against them in a court of law. This means that no court can rule against you unless you have properly informed of the case and given a chance to defend yourself. The procedure of informing someone of a pending case against them is known as service of process.
Why Is Service of Process Important?
As innocuous as it might sound, whether or not the process on a person was sufficient can, and often does, make or break a case. The court cannot rule on a case involving you if you were not legally made aware of that case. Thus, if the service is found to be insufficient on appeal, the entire case can be thrown out. This is why it is extremely important to know the laws of your state regarding how best to serve a defendant legally with a lawsuit (especially since some defendants can go out of their way NOT to accept service).
Each state and jurisdiction has its own rules regarding the means of service. Typically, a summons and related documents must be served upon the defendant personally, or in some cases upon another person of suitable age at the defendant's house or place of business. If a person receives a summons and does not show up for court, the court will rule against him automatically, but if a person does NOT receive a summons, then a judge will usually order the plaintiff to keep trying to reach him.
Who Is Supposed to Serve the Process?
Someone retained to serve process on someone is (very creatively) called a "process server." In the past, the process server was a member of the court or a law enforcement agent. Nowadays, it can be any adult U.S. citizen who resides in the state. The person must NOT be a party to the case, however, and if that person does have some tie to you, it may invalidate the whole process. So do not ask your husband or brother-in-law to deliver the summons unless you are sure the laws of your state allow it.
Most of the time, licensed private investigators also work as process servers, so an experienced lawyer will likely have contacts to use if you need to serve someone.
What If I Have Been Served Process Through Unusual Means?
Every state has different laws regarding just how far a process server can go to serve someone. In California, for example, you can serve anyone anytime of day or night at any place. Virginia, on the other hand, does not permit you to serve someone at their residence on Sundays or when they are their way to a court of law. In New York, some jurisdictions state that the complaint must actually touch the body of the person being served to be considered effective.
In most places it is often directly up to a particular judge's discretion on what constitutes valid service. But there are some universal rules:
- No Disguises: In many states, a process server may not actually disguise himself as someone else (such as wearing a pizza delivery uniform) in order to give you a summons. However, implied disguises are usually allowed (such as simply holding a pizza, but not wearing a uniform). Sometimes, process services can even order you an actual pizza, and then simply stand behind the real pizza delivery man. These would all be acceptable process.
- No Federal Impersonations: It is a crime to impersonate a police officer, federal agent, tax collector, or any other kind of state employee, even for the purpose of serving process. This also includes utility company employees.
- No Trespassing: A process server cannot trespass on property to serve process, not even something as simple as going through a back-gate. Serving process in this manner is not only ineffective in court, it is also illegal. However, most gated communities and apartment buildings have provisions that must allow process servers to enter.
Once again, every state has its own laws governing this, so contact a lawyer to find out if you have been unlawfully served. Sometimes it can be an event as simple as a process server giving the complaint to your wife, instead of you. While most states allow this type of service, many of them require it to be only a last, or at least secondary, resort. If the server didn't even ask if you are home, then this might be invalid service.
How Can an Attorney Help
If either you need to serve an elusive defendant with service, or you yourself have been served, it is important you contact an attorney right away. In the former case, all the difficult work of tracking down a defendant and serving him a complaint will be handled by the attorney, saving you considerable time and expense, and letting you focus on the case at hand. In the latter case, an experienced lawyer will be familiar with the process serving laws in your jurisdiction, and can argue forcefully for your side if the service was questionable.
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Last Modified: 05-16-2014 02:32 PM PDT
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