Part Two of a Three-Part Series by Frank Long
The Process Server’s Bread and Butter
Service of Process
Process servers handle a variety of court documents ranging from subpoenas and complaints to eviction notices and summonses. Those documents all have important functions that operationalize once handed over by a process server, but the one document a process server carries that confers possibly the most gravitas of all is service of process.
Following is a brief examination of what service of process is, how it is carried out, and what distinguishes it from other terms that sound similar but are quite different.
Service of process methods
For the most part, service of process must be done in person. But is that the only way?
Not always.
Personal service and substituted service are two common types of service of process used in the United States, with personal service being the one most difficult for a defendant to attack for its legality.
Another method used to perform service of process is publication. For example, publication in a newspaper.
Publication as a process serving method may be useful if a defendant cannot be located. This method provides constructive notice as opposed to actual notice. It is also considered the lowest constitutionally acceptable form of service. In the state of California service via publication is authorized by Code of Civil Procedure 415.50.
Service of process may also be conducted via public posting. This method is sometimes used when a defendant cannot be located. As the name suggests, public posting is performed by posting a notice in a place the defendant is known to frequent.
While Public posting is used to perform service of process it sometimes may be problematic. For example, using the public posting method may imply that the plaintiff knows where the defendant frequents but was possibly lax in efforts to find the defendant. Public posting may also suggest the plaintiff only guessed at places the defendant may frequent.
Details governing the use of public posting in California
appear in Code of Civil Procedure 415.45.
In some cases, service of process may even be performed using social media such as Facebook. This service of process method is rare, however, and still in its infancy.
Service of Process vs. Giving Notice
There is a difference between documents that can—or must—be served personally (service of process) and documents that can be eServed, mailed, or handled by other means (eService). The difference between these two types of documents lies in the results they create, and here are the critical distinctions you should know.
eService: Giving notice
The role of eService in civil litigation is straightforward: eService is an electronic substitute for service on opposing counsel. This aspect of civil litigation traditionally has been executed with paper documents such as printed facsimiles or the U.S. Mail.
In the 21st century, however, things are different. Now, online technology and email make it possible for document exchange to occur electronically. But not without a catch.
For example, in the state of California, papers can be served electronically only if a party or other person has expressly consented to receive electronic service in that specific action.
Another notable restriction on eService in California is that some documents simply are not allowed to be exchanged electronically. For example, a document required to be served by certified or registered mail is not authorized for electronic service.
Service of process: Getting jurisdiction
Service of process is performed when a party other than the plaintiff gives a copy of the court papers to the party the plaintiff is suing. Service advises the other party of three critical things:
- What the plaintiff is asking for
- Date and place of the trial
- What the party can choose to do
Looking deeper at service of process we see that it gives the court the power to adjudicate a case or issue. We also see that it gives the court the “power” to command witnesses to appear: it confers jurisdiction.
Proof of service procedures
Personal service vs. substituted service
Once you’ve decided on a provider for your service of process, you’ll need to determine which method of service will be used.
There are three primary methods for service of process: 1.) actual or personal service; 2.) substituted service, 3.) service by publication. The two methods that are most common are personal service and substituted service.
Personal service may be as simple as approaching the person to be served and saying, “These are court papers.” Then, present the person copies of all papers checked on the form, or leave the documents within close proximity. An easy speaking distance is a good rule of thumb for judging this distance. It isn’t always that simple but rarely is it a dangerous game of cat-and-mouse carried out in dark alleys.
Substituted service is a method that can be used when the plaintiff doesn’t want to use personal service or may not be able to locate the party to be served. To perform substituted service the person performing service must be at least 18 years of age and not listed in the case. Substituted service also requires the additional step of mailing another copy of the papers by first-class mail to the party being sued at the same address where the papers were left.
For substituted service, state law may require that documents be mailed to the party being served in addition to standard substituted service requirements. This is currently the case in California, New York, and Illinois, so it is important to find out whether your state requires this additional task.
Frank Long, MS, is a professional writer, editor, and content creator. He is a graduate of the Brian Lamb School of Communication at Purdue University and content marketing manager for Rapid Legal. He may be contacted at flong@rapidlegal.com.
In case you missed it:
Click here to see the first post of this three-part series.
Categorized in: Legal Procedure
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