Service of process rarely gets the attention it deserves. This is a major oversight for law firms. Not all process servers are the same, and how well they carry out their duties can dramatically affect the speed and success of legal proceedings.
If you are a legal professional who is new to using process servers or who may be experienced but just a little uncertain of how to select an efficient and successful process server, then this guide is for you.
Read on to learn more about the role that a process server plays in legal proceedings, ways to recognize when a process server may be needed, top considerations regarding the regulatory environment that surrounds service of process, and qualities to look for when vetting and hiring process servers to ensure reliable and accurate proof of service.
To appreciate the nuances of service of process, it’s important to first examine what a process server does and how these actions influence the ability of a case to proceed. By recognizing what successful service of process entails and the types of qualifications a process server should possess, you will become more discerning and increase your chances of finding the best process server for your cases.
At the most basic level, service of process is the act of notifying parties when they are involved in a legal proceeding in a civil court of law or administrative court. Service of process involves properly delivering documents with this notification.
“Process” refers to the legal documents that are part of a lawsuit. Typically, these documents will include a summons or petition, the notice to a defendant that there is a lawsuit or legal action against them, often calling them to court, and a complaint or citation, which provides a more detailed look at the allegations the plaintiff has set forth. Although documents may be exchanged between the parties over the course of a legal proceeding, these are usually less formal than the initial service of process.
Service of process is subject to various rules and regulations that differ from state to state and sometimes from court to court. Compliance is important because failures to properly carry out service of process can delay a case or even trigger a motion for dismissal if service is deemed insufficient.
Process servers must find the right parties and appropriately deliver the documents that make them aware they are part of a legal action that has been filed. Process servers are entrusted with delivering several types of legal documents, including:
A writ can vary depending on the type of legal proceeding. At its core, a writ is a document that tells a party that they are to appear in court for the reason stated in the writ.
A complaint is the written statement that outlines the cause of action against a defendant. A complaint is what typically kicks off nearly any type of legal proceeding, from civil lawsuits to family law matters to criminal cases.
A subpoena tells a person that they are being called into court to provide information related to a legal matter. A person may receive a subpoena to attend a deposition, to provide documents to the court or to hand over any relevant evidence.
Summons This is an official notice that a lawsuit has been filed. It informs a defendant that they are being sued.
Process servers can also be used to deliver a wide range of other types of legal documents. Process servers can be used to deliver documents for the dissolution of a marriage, eviction notices, or documents related to bankruptcy proceedings, among other legal cases. Regardless of the type of case, it is essential that a process server understands the rules specific to their jurisdiction.
There is no single method for delivering legal documents. The methods used may vary depending on the type of lawsuit or the court where a legal proceeding has been filed. Some of the more common methods of delivering service of process include:
This type of service involves delivery by hand. The process server will identify the appropriate party, hand over the documents and inform the individual that they are being served. Personal service ensures documents were delivered to the party.
It is important to note that lawsuits are not filed solely against individuals. Corporations, counties, cities, and other entities may also be sued. A process server is responsible for delivering documents in these situations as well. In these cases, the process server’s job may involve handing over documents to an agent who is authorized to act on behalf of the entity named in the lawsuit.
If previous attempts at personal service have been unsuccessful, then substituted service may be an option. The rules are different in every state, but substituted service involves leaving documents with someone other than the named party who resides in the same location and is of a suitable age and has a particular relationship with the intended recipient. In many states, this is someone related to the recipient, co-residing with them. While delivery to the qualified substitute is sufficient in some states, others require a mailed copy of the documents to be sent to the residence as well.
If personal service or substituted service proves to be impossible, some jurisdictions allow for alternative service. Alternative service options may include publishing a notice in a local paper, sending the documents through the mail, or posting and mailing the notice. It is important to bear in mind that most forms of alternative service must be approved by a judge in advance and require that due diligence according to local laws is met by prior attempts at delivering the documents. A process server cannot just use an alternative form of service and expect it to hold up in court.
Qualifications to be a process server vary by state. Generally, the individual must be an adult who is a lawful resident and a disinterested party, meaning they are without connection to the legal matter. Several states do not require a formal licensing process for an individual to work as a process server. Other states adopt a more restrictive, regulatory approach. For example, in Florida any permanent resident who is over 18 years of age can deliver service of process. However, most counties in Florida require that process servers be appointed by the county sheriff. In California, process servers must apply and be registered in the county where they operate if they serve a particular number of documents. Process servers must have resided in California for at least one year and are required to post a $2,000 cash deposit or bond to work as a process server.
It is important that the process server you work with meets the jurisdiction’s requirements and understands all the governing laws and regulations where process is to be served. It takes deep knowledge of local requirements to deliver legal documents quickly––and effectively. Failure to comply with rules in any way could delay or even derail the legal proceeding by calling proof of service into question.
Proof of service is the record confirming that the documents have been appropriately delivered. The proof acts much like a receipt, providing a written version of a process server’s sworn statement attesting to the completion of service of process in accordance with the rules and regulations of the jurisdiction where process was served. Proof of service is designed to ensure proper steps of service have been followed to provide proper notice to parties involved in a lawsuit and to prevent parties from falsely claiming that they never received legal notice that they were being sued.
Proof of service is also known as a return of service or, when notarized, as an affidavit of service. When a process server files a return of service form with the court, it may include either 1) an acknowledgment from the person who received the legal documents, or 2) a declaration of service prepared by the process server.
Process servers should make every reasonable effort to deliver documents. Despite these efforts, sometimes serving a defendant proves to be too difficult. Should all efforts to deliver service ultimately lead to a dead end, a process server should file a declaration of non-service. This declaration will state that the process server made every good faith effort to ensure delivery of the legal documents to the intended recipient and should contain details of every attempt that was made to complete service.
Every legal proceeding is governed by strict deadlines and the filing of a proof of service document is no exception. In certain states, if proof of service is not filed on time, then it can have serious implications for a plaintiff’s case. In some jurisdictions, the clock doesn’t start running for a defendant to respond to the allegations set forth in a lawsuit until proof of service has been filed with the court. As such, the potential for slow or unsuccessful service of process to delay a case is very much a real threat.
Thus far we have taken a broad view of what service of process entails. Now let’s consider some situations where special attention may be needed.
Given the varying complexity of rules over service of process, training differences among process servers, and widely disparate experience levels, it only stands to reason that not all process servers are equal. It’s essential to understand when to consider the benefits of a qualified process server when looking to get your case served.
A skilled and experienced process server will not only be familiar with the jurisdiction’s rules regarding service of process, but they also will have the best knowledge of how to use several tools to help them accomplish their job. The use of skip tracing and other investigative tools often require a license or certification. A professional process server may also have access to databases and ways to search the databases that the public may not. Most importantly, a professional process server will understand how to best accomplish their job while ensuring the letter of the law is followed every step of the way. It can be useful therefore to think of some scenarios where a professional process server can benefit your case.
The court system where the case is filed sets the rules and deadlines around service of process, and those deadlines can vary greatly by jurisdiction. For example, when a lawsuit is filed in federal court, the defendant must be served within 90 days of the initial court filing. That timing may sound more than adequate at first glance, but dealing with things like outdated addresses or changes of name takes time. Therefore, prompt service should always be the goal. Individual states can have tighter deadlines than those set forth for federal cases. A missed deadline means applying for an extension or even having to start the lawsuit over from step one.
When timelines are tight, a professional civil process server needs to be able to find people quickly. A skilled process server will be knowledgeable and have the best tools when it comes to skip tracing. In addition, when you are on a tight deadline and work with a professional process server, you can rest easily knowing that service of process is their priority. If you are relying on the services of a county sheriff, your legal matter may be a low concern. A professional process server will focus on getting the job done.
Because rules differ by state, expertise of process servers can vary. Some states require servers to be licensed or certified, while others may require little more than residency. Another wrinkle is that different laws may apply depending on the nature of the case. An eviction matter, for example, may have unique requirements compared to other civil suits.
A good process server will understand those requirements and perform service accordingly. Working with a properly trained process server can help ensure that the service of process will not only be completed but will stand up in court regardless of complexity.
Personal service is preferred. In cases when it’s not possible, however, process server quality has an impact. A professional process server will understand local laws and how to effectively carry out different forms of service. Available options will depend on the jurisdiction’s rules and how well the process server has been documenting their good faith efforts. Process servers will be familiar with other forms of service, substitute, mailing, and posting, for example, and will be able to properly carry these out.
Process servers are professionals. The delivery of legal documents is part of their day-to-day. A professional process server has the experience necessary to provide a satisfactory experience for the party being served. If they encounter someone who handles the receipt of the documents poorly, they are more likely to be able to handle the situation professionally compared to your average Joe.
Proper service of process ensures that a legal proceeding will move forward. Because so many vendors exist and the knowledge and experience level among them varies considerably, it is important to vet companies closely. When you are about to work with someone new, it is always a good idea to get a feel for how equipped the process server will be to handle your case’s needs by asking three fundamental questions:
The amount of time it takes to deliver legal documents can vary based on a variety of factors. Nevertheless, an experienced process server should be able to provide you with an estimate of when they expect to have proof of service complete. This is a particularly important question to ask when time is of the essence in your legal matter.
Sometimes the last known address of a defendant may not be up to date. In other instances, parties may even try to elude service. It is therefore important to get a feel for the tools and investigative resources a process server will employ in their efforts to locate someone. It is also important to ensure that any methods used to find people are done ethically and within the confines of the law.
An ideal company will use state-of-the-art search tools for skip tracing and offer different levels of search capability, from instant traces to having a full-time staff of licensed private investigators for deep searches. Some companies will even allow you to send preliminary data to their teams for review to catch outdated addresses before starting paperwork for filing of service of process, thus saving significant time.
The right technology is not only imperative for effective skip tracing, but it also is key to effective service of process. Always ask about your ability to receive real-time updates on the progression of your case. You should always be able to know the current state of your case without having to pick up a phone. Electronic documentation of service attempts is also crucial for validating service of process. Elements like GPS coordinates and photo evidence of service of process will be essential to your case if a recipient attempts to contest service of process, potentially making the difference in whether the service stands. Building a fact-based case is imperative. If a process server seems proudly “old school,” you may wish to look elsewhere as lack of transparency and electronic documentation leaves your firm more vulnerable to “sewer service,” the unsavory practice where a process server deliberately fails to serve a lawsuit while submitting a fraudulent affidavit of service to the court claiming service was made.
We’ve alluded to rules at both the federal and state level in relation to service of process so far, but let’s dig into these matters a little more deeply.
Understanding how the rules affect service of process procedures and timelines can make or break your case. Let’s run through some federal rules and examples of rules in several states including California, New York, and Florida.
The Federal Rules of Civil Procedure (FRCP) were designed to bring uniformity to federal proceedings. The rules govern proper national service of process. However, service of process federal rules are not the only concern when it comes to federal lawsuits. Process servers must also follow state rules and regulations to effectively deliver service of process. It is a good idea to keep in mind some of the following FRCP regulations when it comes to service of process.
With federal court service of process, it is essential that a summons contains all of the information set forth in Rule 4 of the FRCP, including:
Delivering the summons. Generally speaking, anyone who is over 18 years of age and who is not a party to the case can deliver the summons to the defendant. Alternatively, a U.S. Marshal, a person who is appointed by the court, or a professional process server can also hand over the summons to the defendant.
Completing service in the United States. The FRCP states that, unless federal law provides otherwise, an individual who is served in the United States must be served according to the law of the state where they reside. It is important to pay close attention to each state’s individual rules. For example, the FRCP states that if personal service of process is not possible, documents may be left with someone of “appropriate age.” Many states are more specific and have laws that say documents may be left only with someone who is 18 years of age or older.
Completing service outside of the United States. In our global society, it is possible that a defendant may be living outside of the United States. If a defendant is residing in a country that is a signatory to the Hague Convention, this agreement outlines how service of process is to be performed. If the country is not a signatory to the Hague Convention, service of process can become much more complicated.
Proving service of process was performed. The FRCP states that service of process is not complete until proof of service is provided to the court, except in situations where the defendant has waived service of process. Proof is made via a sworn statement from the process server.
Service of process timing. A defendant must be served within 90 days after the complaint has been filed with the court. If a plaintiff can show good cause for why service was not performed within 90 days, then the court may agree to extend the deadline. Of course, there are no guarantees the court will do so.
With an understanding of federal regulatory environment, let’s now examine how some states regulate service of process. (See an overview of methods of service on individuals by state.)
We’ll look at a few states across the U.S.: California, New York and Florida.
California’s rules for service of process have a few distinctions of note. Like every other state, a person who is acting as a California agent for service of process must be a neutral third-party with no interest in the lawsuit at hand. However, California’s judiciary points out that service of process can be provided by process servers, U.S. Marshals, county sheriffs, coworkers, or friends.
California’s rules are notable in the stringency of requirements that prior attempts must meet before substituted service is allowed. Process servers must verify attempts on different days at different times, with rules outlined by the state. After substituted service, the process server must mail the documents and complete a declaration of due diligence along with proof of service.
Whether serving process in the city or in small town upstate, service of process in New York has its own nuances. As an example, with substituted service, legal documents may be left with “a person of suitable age and discretion” at a defendant’s usual residence or actual place of business. A process server must also send the documents via first-class mail to the place where the documents were left.
If sent to a place of business, then the envelope must be marked as “personal and confidential,” and give no indication that the contents are coming from an attorney or a law office.
In some circumstances, New York also allows affixing the documents to a door. Casually referred to as “nail and mail,” this type of service is exactly as it sounds. If a process server has made every attempt to deliver the documents while practicing due diligence, then the legal documents may be affixed to the door of a residence or business. An additional step requires that the documents be mailed to the defendant’s last known address within 20 days of the “nailing.”
New York Law is particular about respecting specific observances and not serving documents on those days. There is no service of process on Sundays, nor on a “person’s religious observance days.” Also notable, the type of lawsuit and the party who is being served may be subject to additional regulations in New York. For example, there are specific rules governing landlord-tenant law and service of process.
Like New York, there is no Sunday service in Florida. Florida’s service of process rules require a nuanced understanding of local law.
The Sheriff Rule. Many states allow any disinterested third-party who is over 18 years of age to act as a process server. However, the Florida rules of civil procedure must be overseen by the sheriff of the county where the defendant resides. In some counties for many legal proceedings, a person who is appointed by the sheriff may deliver service of process. In some cases, the sheriff may maintain a list of people who are designated to carry out service of process in the county.
Those appointed by the sheriff must meet specific requirements. Florida statutes governing service of process state that a process server must be at least 18 years of age, be a permanent resident of the state, and possess no legal or mental disability.
In addition, a process server may be required to pass a criminal background check, obtain a certificate of good conduct, and/or pass an exam testing their knowledge of Florida’s service of process statutes.
Alternatives to primary service of process. When leaving documents with a person other than the intended recipient at their place of usual residence, the person accepting the service must be at least 15 years of age. If the documents are to be delivered to the defendant’s workplace, then the process server is required to give the employer advance notice. If the employer refuses to comply with a request to deliver service of process, they could face a fine.
If all reasonable attempts to deliver service of process fail, a process server must file an Affidavit of Diligent Search and Inquiry with the court. If the court accepts the affidavit, service of process may be carried out through constructive service or service by publication. Successful service by publication requires a notice to run in a local newspaper for 32 straight days.
On the surface, service of process might appear to be a relatively simple matter of handing over legal documents. The reality is that service of process is often a complex task. Several steps must be followed before service of process is considered complete. Missing a step could lead to insufficient service of process and delays in legal proceedings.
But how can you tell who will be competent and efficient in this task and best able to meet your needs?
A surprising number of options are available to get documents served, and it can be hard to figure out whom to trust with your important legal documents.
First, consider size. Service of process vendors range from groups of individual process servers to companies operating at a local, state, multi-state, or national level. While service is available through individuals or companies, the task of managing tasks, relationships, and working with multiple individuals requires a good amount of time and resources. Many law firms choose to work with a national process server vendor due to depth of resources available through a single point of contact, as well as the breadth of knowledge and expanded service area that only a vendor of this scale can provide.
Also important is selecting a service of process provider that is able to provide coverage anywhere you anticipate having cases – or with the capacity to handle even fringe work can save your firm time in the long run.
When selecting a vendor, it is important to evaluate them in much the same way you would an individual process server, while keeping in mind there are additional services the vendor should be able to provide. You need someone you can trust to get the job done right, consistently, and anywhere you need service.
The right process server vendor will:
In addition, the process server vendor will be able to deliver a wide range of documents, such a summons, subpoenas, eviction notices, and more. They also will vet their team, ensuring their process servers complete training, meet state requirements and stay current with state law.
A national process server vendor will also have the benefit of being able to meet service needs across jurisdictions. A large vendor is best equipped to serve parties across multiple states or even internationally.
While looking at the human side of process serving profession can help guide you in your choice of process servers, it can also be useful to understand how technology is benefiting process servers to ensure that a process server is comfortable using the industry’s tools.
The right technology use will:
Most of us leave a digital footprint across the internet. The days of process servers having to rely on little more than a name and number in a phonebook are long gone. Tech-savvy process servers will be up to date on the latest skip tracing tools that can help validate residency or find you a better address for service of process.
It can be a challenge to keep track of what constitutes effective service of process from jurisdiction to jurisdiction. Plus, the rules change. Smart process servers will use technology to enforce rules and ensure they’re following regulations to ensure that process is delivered properly every time.
Process server software and process server apps have made it easier than ever to ensure that every step required by a court is followed correctly. When you move from saying that something has been done to having checkboxes you can validate with GPS coordinates and time-stamped photos, you gain a great deal of validity for your case.
Sometimes service of process takes time or requires an investigation. When you’re bouncing between tasks in a traditional environment, papers can get lost. A great vendor will have technology enabling documents to be tracked and sent exactly where they’re needed at every step.
Technology has helped improve communication between legal practitioners and process servers. All parties can monitor the progress of a case and quickly contact one another with additional information as needed. Your process server should have a way for you to access information about that status of your case at any time of day.
Some process server providers monitor process server performance and can even control the number of cases they may take on in a given month based on achieving performance goals.
Now that you understand how a process server can and should use technology to make service of process better, let’s consider some questions you may wish to ask a process server vendor to ensure that they are the right fit for your case.
When looking for the right service of process vendor, it can be difficult to know where to begin. Several important questions should be part of every process server vetting approach.
Legal proceedings are governed by deadlines, and you cannot afford to have your lawsuit delayed. Process server companies should not take weeks to get started with your order. Professional process server vendors make placing an order easy and should be able to confirm your order within minutes. This helps to ensure that little to no time is wasted.
Open lines of communication between legal practitioners and process servers are essential. You should never be in the dark about how service of process is progressing. Take a close look at the vendor’s communication practices. A reputable vendor will provide real-time status updates regarding your case.
A process server vendor should save you time. Ask a vendor to show you the steps they’ve taken to optimize speed and efficiency, such as streamlining the process of getting a document from you to the process server using easy-to-use interfaces to upload documents and automating their digital dispatch to process servers.
Proof of service is one of the most important aspects of ensuring reliable service of process. It is required to validate the proper delivery of legal documents. A good vendor should make use of mobile apps, secure websites, data transfers and other tools to help automate proof of service. In addition, a reputable vendor should have tools in place to ensure that the professional process servers they partner with are able to provide all the information you need.
A process server needs to know what is required for effective service of process by the court. Failing to do so can cause serious delays in a case. A reputable vendor will oversee and support all of the process servers they partner with to ensure the law is properly followed every time.
Sometimes, you may need to work with a vendor to provide service of process outside of the United States. In these instances, you should determine whether a vendor is set up to deliver international service of process in accordance with international conventions.
Prices for service of process can differ from company to company. Factors that sometimes influence pricing are rush service and number of parties. Always ask about cost structure to avoid hidden fees.
There is a lot to keep in mind when it comes to effective service of process. It is important to understand the role of a process server, what constitutes appropriate proof of service for the state where legal documents are being delivered, and the key differences among process servers, including access to search resources and technology.
It is crucial that the regulatory environment is well understood, both at the federal level as well as the state and local levels. Service of process that does not adhere to state and federal regulations can be deemed insufficient and leave plaintiffs back at square one in their legal proceeding.
Finally, when working with a service of process vendor, ensure that you are receiving only the most reputable service of the highest quality. Experience, reach, and investigatory capabilities should be part of any selection process.
At ABC Legal, our vendor platform and cutting-edge technology makes it easy to partner with process servers across the country and around the world. We ensure that legal practitioners like you get the efficient service they need to keep their cases on track. To learn more, we invite you to start a conversation. If you have an immediate need for service of process, place an order online with us today.