Author: Brani Andreev, MBA, is an expert in nationwide management of process service, consultant, speaker, and developer of the breakthrough Management Model of the 4Ps™ that ensures the consistent quality of process service.
Can a perfectly executed service of legal documents, known as process, go wrong?
Mary, a paralegal from ABC Law firm in Texas, retained John, a process server in the state of New York, to serve a set of legal documents on a defendant (all names in this story are fictitious). When Mary first approached John about process service, she called him on the phone number listed and asked him how much he charged for a routine service in his local area. John provided the information, and Mary emailed him the legal documents with the name and address of the defendant to be served. John diligently recorded the information about the service and began making attempts. Before long, the process server was able to catch the son of the defendant at the given residential address and completed the service as a service on a suitable age person. John duly prepared the affidavit of service and sent it back to the paralegal. When Mary saw the end result, she was very unhappy. The legal documents were not correctly served.
So what really went wrong with this perfectly executed service of process?
The legal documents in this case were filed in the state of Texas. As such, the originating court rules apply and the method of service under Texas law requires a personal only service on the defendant. John closely followed the rules of the state of New York which allow service on a suitable age person in addition to personally serving the defendant. Both Mary and John neglected to communicate about the specifics of the documents and the allowed methods of service based on the originating court and the type of documents served. Mary had to ask John to make attempts toward personally serving the defendant again. The defendant avoided service, and John had to prepare an affidavit of attempted service showing all attempts made to personally serve the defendant. Mary obtained a court order to serve the documents by a substitute service and John had to attempt yet again in order to serve the same legal documents. A simple service of process became long and costly. Both Mary and John felt frustrated.
What happened with John and Mary is not an isolated incident. Just because process service is simple, it does not mean it is easy... A nationwide survey, conducted by the Process Server Center, shows that more than 87% of process servers struggle to retain their clients in the long-run, while 89% of legal professionals are ready to change their process server.
Among legal professionals, process service is often associated with headaches! What usually happens is that either you or your legal team spend valuable time chasing process servers to check on the status of legal documents being served or to obtain a completed affidavit on time for a court hearing. Even when filed with the court, a defendant may still appear and challenge the sufficiency of the service or the veracity of the return. Your headaches from improper service of process are mounting and your legal team spends valuable resources to ensure compliance and due diligence.
Among process servers, service of process is also associated with frustrations! Most of the time clients provide very scarce information when contacting a process server for a new job. The information a client usually seeks is how much a process server would charge for serving legal documents in his/her area. Hardly any further details are provided, such as originating court, type of legal documents, methods of service allowed by the court. It is rare that a client would offer any other information pertaining to the person to be served, such as when he/she is usually home; does he work?; how is the address verified? Lack of information provided by the client and lack of details oftentimes lead to incorrect service of process or unnecessary attempts without proper due diligence, similar to what happened with Mary and John.
How can paralegals, legal professionals and process service managers ensure proper service of process?
Every successful process service must start with thorough information gathering prior to making attempts to deliver the legal documents. In order to ensure correct and timely process service and avoid unnecessary delays, expenses and frustration, paralegals and process servers must communicate the information necessary for the successful completion of every process service.
In our example here, Mary should have provided John with clear instructions on how the legal documents should have been served. If Mary failed to do that, John should have asked her about the permissible methods of service prior to making any attempts to serve the legal documents on the son of the defendant.
Paralegals, legal professionals and any client sending legal documents to a process server must:
Next time Mary has a legal document she needs served, she will provide the following information to the process server:
* name and address of the person being served
* methods of service allowed by the originating court
* legal deadlines as prescribed by the court to deliver the legal documents
* additional information about the defendant, if known: does the person live alone? is he/she working? when is he/she usually home?
At the same time it is the process server's responsibility to gather as much information as possible about a service prior to beginning his/her attempts. When accepting legal documents from a client, a process server must:
To help paralegals and process servers, like Mary and John, the Process Server Center has developed the Process Server Questionnaire, offered as part of the process service Toolbox. It is a fillable form that can be used every time a paralegal sends out service of process. It contains all the necessary information a process server must have before making attempts. Using the fillable Process Server Questionnaire paralegals and legal professional can: