Monday, 1 February 2016

Proper Service of Court Papers – It is More Important Than You Think

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.

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