Service of Process is very often a difficult task to accomplish and clear directions will make it much more efficient, and possible, to accomplish the requested task. So no matter who you contract with for these services, I trust you’ll find these suggestions helpful. Benefits include:
- Having the task accomplished successfully and in keeping with the laws and court rules that must be followed.
- Having the task accomplished as quickly and efficiently as possible.
- Having the task accomplished at the least necessary cost as possible.
- All of which makes your life much easier.
Service of Process is a legal concept.
“Service of process is the procedure by which a party to a lawsuit gives an appropriate notice of initial legal action to another party, court, or administrative body in an effort to exercise jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body, or other tribunal.”(Wikipedia).
So please STOP using the word “serve.” The strategic goal of the excercise is to serve process. That’s fine. But the tactics used to accomplish this are those statutes and rules, and court decisions, that direct how DELIVERY is to be made.
“Personal Service” is the most overused and most confusing term because of New York’s CPLR section 308 which uses the term “personal service.” But as you read the language in that section, it discusses various methods of delivery. Unfortunately, too many people use the term “personal service” or any derivation to mean “in-hand delivery,” a method of delivery under CPLR 308(1). Clearly that is the method of delivery, and thus “service” that everyone prefers to have happen all the time.
You’ll also note that Federal Rule 45 as recently amended, clearly directs service must be made by in-hand “delivery” of the subpoena to the witness.
Best Practices for Clear Communication to Your Process Server.
- Email, email, email. Even to follow up with a telephone conversation. Make sure your directions are clear and in writing.
- Make sure your directions are clear as to what defendants or witnesses are the subject of the directions.
- Make sure the addresses are clear as to where you want the attempts made for these defendants or witnesses.
- And make sure the times of the day that these attempts are to be made are clear, if applicable.
- If possible, decide beforehand and communicate to your process server, in writing, what steps he or she should take on site in different likely scenarios, such as:
- The target talks to the process server through a closed door. Or a person of suitable age does talk to the server but won’t open the door. Leave on the outside of the door and frame this as an in-hand delivery? Can the process server see the target or person he’s talking to?
- A delivery is possible to a person of suitable age and discretion but that person won’t provide his or her name, or full name. Make the delivery or not?
- Process server is told that legal documents must be delivered to another address. This often happens with major business entities which direct service either to another office (possibly located in another city or another state) or to a registered agent. Go immediately or just inform you?
- Process server finds that the name you have, either for a person or a business entity, is different than what he or she finds on site. Leave the papers or not? If the name is close?
- Process server learns on site that the person to whom delivery must be made is not there but reportedly will arrive presently. Should the process server wait on site? For how long?
In addition, if you want to be informed about developments in real time, or near real time, do you want to be called? Emailed?
As a matter of standard practice, a clear and timely report on each attempt should be communicated to you, by telephone but also email, if that is what you want. But that may not always be warranted on every assignment.
But let’s be clear. A report should be made by the process server, available to you, of exactly what happened on site for each attempt to serve process. Including information about the location; what kind of building, confirmation or not that the subject sought is or is not actually there. The date and time of the attempt and any conversations the process server had there.
Expect Clear Communication from Your Process Server
Any Affidavit of Service should include all legally required information to prove the service based upon the manner of delivery. You may want to have specific language used in the body of the affidavit and you may want to include additional information (ie: include a full description of the events of each attempt to serve even if not required to prove legally sufficient service based upon the manner of delivery).
For New York court, affidavits of service for assignments outside of New York need to include a DESCRIPTION of any recipient. This is often not required in other states or foreign jurisdictions so make sure the process server knows when the assignment is first assigned to him or her.
No matter what happens, the process server must report back to you the FACTS (the good, the bad and the ugly) of what occurred for each attempt to serve and for any successful service to the best of his or her ability. An opinion as to the legality or legal sufficiency of anything the process server does is ultimately up to the attorney directing the process service assignment. The process server can, and should, provide his or her opinion and understanding, but remember that the process server is not a lawyer and may be attempting to cover his or her ass in the event something may have gone wrong.
Above all, the Process Server Owes You a Duty to State the TRUTH, and nothing but.