If you have to sue someone, one of the first things that
happens after the case is filed is serving the defendant with the court
papers. This is after consulting with a
lawyer, hiring an attorney, the case being researched and investigated and a
lawsuit being filed.
Properly serving the defendant with the court papers is a
very important step in the case. It
tells the defendant that they are being sued.
This is important so the defendant has notice of the case. And then they can decide if or how they want
to respond. This is a fundamental part
of our legal system. The concept is due process of law. At its most simple and fundamental it boils
down to notice and a right to be heard. Proper
service is the notice part of it.
And proper service does not mean that the defendant knows
about the case through gossip or the grapevine.
Or a demand letter warning the defendant that they are going to get sued
if they do not pay is not the same thing as proper service of the court papers.
Proper service brings the defendant under the jurisdiction
of the court. This means that the court
has the power to determine the defendant’s rights and claims. Think of it as a form of tag.
Proper service of the court papers involves some formality.
The correct papers need to be served. Typically this will
involve a summons which has certain notices on it. There will be the complaint which lays out
the claims against the defendant. There
may be other documents furnished by the court at the time of filing. Often these have to do with setting the case
for a case management conference a few months after filing and information
about alternative dispute resolution options, i.e. alternatives to a
trial. Mediation and arbitration are
common forms.
The papers need to be served by an appropriate person. At a minimum it will be an adult over the age
of eighteen. Better is using a
registered process server. They have
their tricks of the trade for serving papers and finding people. They should also know how to properly
complete the proof of service. And that
paperwork is important, as discussed more below. There is a legal presumption that a process
server’s proof of service is accurate.
This means the burden is on the other side to show that it is
wrong. That is not an insurmountable
barrier. I once had a client who was
allegedly served personally while he was overseas. Thank goodness for passports.
Service using a registered process server also presents
another advantage over the plaintiff using friends and family. The process server is more objective and
disinterested. To them this is just one
of a zillion serves they are trying to get accomplished. They don’t know anyone in the case and could
probably care less about the whole thing.
The papers need to be served in the proper way. Ideally this is personal delivery to the
defendant. That is not always
possible. There are other legitimate
forms of service. One is called
substituted service. This is where
papers are left with an adult at the defendant’s home, place of business or
usual place of mailing. A set of papers is then mailed to the defendant. This is available after making reasonable
efforts at personal service.
In more extreme cases you have to resort to service by
publication for individuals or service through the Secretary of State for
entities. Basically you have to exhaust
all other avenues for service. So on the
road to this you will try to serve the papers personally or by substituted
service. You will undertake
investigation and “skip tracing” to try to locate current, good addresses for
the defendant. But if all else fails –
the person has disappeared for a while or is just evading so successfully, then
there are still ways to have the person served.
But if you think about it, service through a legal notice
that very few people read in the back of a newspaper is not too likely to
actually inform anyone that the defendant has been sued. So the defendant has
more time to try to set aside a judgment because they did not have actual
notice of a case.
I had one instance in my career so far where a defendant who
was served by publication actually called me about it not long after notice was
published. I could not believe it. She
said her friend saw it in the paper and informed her of it. So, sometimes it will provide actual
notice. That is the great exception…
Once papers are served in one way or another you need a
proof of service that is properly completed.
This is an important legal document that can make a judgment stand or
fall. So it is a good idea to have
papers served by someone who knows what they are doing and have the proof of
service reviewed after it comes back to make sure it is accurate and
appropriate.
Word to the wise: if you have a small claims case, do not
have the clerks serve the papers by certified mail/return receipt
requested. It is cheap and sometimes the
little green card comes back with a legible signature or a signature plus a
printed name. But if the defendant does
not sign it or the signature is illegible, you are nowhere. Spend the money on the process server. Get it done right the first time.
And the same holds true for larger cases. It does not pay to cut corners on service of
court papers.