Process Serving
Process serving is the legal procedure where one party involved in a legal action notifies the other party about the initial court action and ongoing actions. Process serving allows a plaintiff, for instance, to officially inform the defendant of the imminent court action against him/her before that plaintiff goes ahead with the case. The plaintiff can employ a professional process server to notify the defendant and thus ensure that the defendant gets the notice directly or indirectly.
The notice which the other party is served known as the process is a set of court documents including summons, writs, formal complaints, and orders. Process serving may also be employed with respect to Tenancy or Leasing matters- whether quitting or amendments.
Why does one party need to serve legal paperwork to the other party?
In a bid to ensure that the rights of every citizen are protected, the law stipulates that all parties involved must be served before they appear in court. Going by the Hague Service Convention, everyone has the right to be formally informed about a lawsuit before he/she can appear in court. The other party must be served appropriate notice of legal action.
Through proper service of process, the court establishes personal jurisdiction over the person served. Hence, if the served person fails to participate in that court proceeding, then the court or administrative body may subsequently find him/her liable or guilty -in default.
Methods of service
The method of service depends, to a large extent, on the type of defendant identified in the lawsuit. Location and situations can also affect the method of service. Apart from the formal service method through the Central Authority of the State, there are about five methods of service one can use in process serving and each is acceptable and legal. They include –
- Personal service
- Substituted service
- Service by publication
- Service by posting
- Service on a corporation
Personal service
This is the traditional method of service that involves in-hand delivery of the process to the defendant. It is considered better because it is most effective in notifying the defendant and does not give him/her much room to fight the legality of the service.
Substituted service
Most methods of process serving that are used in place of personal service can fall under substituted service. This method is used when personal service is not attainable. For instance, if the process server goes to serve the defendant at his/her house and meets only the parents or spouse, the process server can leave the documents with those family members.
The rules differ depending on the jurisdiction but the aim remains to effectively inform the defendant about the impending lawsuit. Also, substituted service may suffice when other methods of service have been tried without success. This however depends on the laws of the state involved.
Service by publication
Notice can be served through newspaper publication and this is known as constructive service. Even though the defendant may not be opportune to read the publication, the court still considers it an effective method of service. However, it is often considered a last resort when other methods fail.
As a rule and to increase the chances of the defendant reading the legal notice, it must be published in at least one newspaper that has a general reach in the defendant/court’s location, or both. Also, the notice should appear more than once in the paper.
This method of process service is expensive which deters many plaintiffs from using it. Besides, it may become an issue if the court later discovers that the defendant could have been served successfully through personal service.
Service by posting
Some states will accept for the process to be posted at the entrance of the defendant’s business place or residence as a method of service, especially when a property is involved. A copy of the process still needs to be mailed to the defendant’s last known address; hence the method is also called ‘nail and mail’. This method is however only acceptable when the personal or substituted service is unsuccessful.
On the other hand, some states will accept the service of simply mailing the process to the real address of the defendant though it requires a registered mail
Service on a corporation
Certain rules apply to corporations as against individuals because of the need to effectively serve the right party. This warrants the use of a different method of service for corporations and states have different rules for this type of service.
In some states, the corporation involved may be allowed to officially appoint someone to accept the service for the organization.
The five methods of service are suitable based on the circumstances surrounding the process serving. Your lawyer will help you make the right decisions.
The importance of process serving in litigation
The service process is vital in a lawsuit that without a proper service process, a lawsuit will not begin.
- It is a means to establish that the court that is hearing the lawsuit does indeed have jurisdiction over the defendant. This means that the court has the legal power to preside over the matter between the two parties and make a ruling. If a court is said to have jurisdiction, the interpretation is that the parties involved are somehow connected to the court. The connection can be because the location of the court is the same as where the injury occurred to the plaintiff or because the parties involved are citizens of the state where the court sits.
Therefore, without proper service, the court automatically loses jurisdiction in the lawsuit.
- Another importance of process serving is that is a means through which the plaintiff notifies the defendant about the impending lawsuit and that the lawsuit will be heard by the court. If the plaintiff fails to properly conduct the process serving, then the defendant has no business appearing before the court because he/she was not informed about the lawsuit. The defendant owes no obligation to the defendant or to the court to participate in the lawsuit.
- The process serving also allows the defendant to know why he/she is being summoned. The process will give him/her basic information of what the lawsuit is all about.
- With a proper service of process, the defendant is given the chance to prepare for the case. It allows him/her time to plan and prepare for the defense.
- Without proper process service, the court will not have jurisdiction to judge over the rights of the parties involved in the lawsuit. Therefore, to ensure that the rights of the defendant to a fair trial are protected under the law, due process must be followed.
- Process serving is also essential in the legal proceedings because it tolls the statute of limitation. This means that it freezes the statute of limitation, hence ensuring that time will not run out while the plaintiff is bringing his/her lawsuit. However, this can only be enforced if there is proper process service otherwise, the statute of limitation will continue to run.
- It also ensures that due process is upheld.
The bottom line is that more often than not, lack of process serving or improper service can cause the court to throw out your case, even before any evidence is reviewed. The plaintiff must be able to provide proof of service before the court should the defendant deny being served. A case cannot proceed without the service of process. You need to hire a competent process server to ensure that due process is followed and that your case does not die on arrival.
Who can serve a process?
There are formal and informal service methods. For the formal service method, the Central Authority of the State addressed shall serve the document or arrange to have it served by an appropriate agency. However, every document to be served in following this method must be translated into the official language of the country where the documents is to be served.
If you opt for the informal method, the plaintiff also has the option of applying for a professional process server to serve the process. These professional process servers are conversant with the rules and requirements for service. Often, it is better to use process servers for faster and more efficient service.
Note however that the plaintiff is not allowed to serve the process on the defendant. He/she must appoint a third party to conduct the service process.
You can hire efficient and professional process servers from Solve and Co. to make things easier and faster for you. We already have smooth and pragmatic approaches and networks that even the most slippery defendant cannot escape our net.
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