You’ve probably seen a movie where a character is dramatically caught off-guard by someone handing them papers and saying, “You’ve been served!”
While Hollywood loves to dramatize the legal process, the reality is that service of process is an incredibly important step in the process of filing a personal injury lawsuit. Without proper service of process, your lawsuit will be dismissed and you won’t recover any damages.
What is service of process?
Service of process is the formal procedure used to notify a party that legal action has been initiated against them. In a personal injury case, this process involves delivering specific documents to the defendant:
- Summons: This is typically a one-page document that informs the defendant they are being sued. It also directs them to the attached complaint for further details.
- Complaint: This document outlines the legal basis for the court's jurisdiction over the case, the legal claims being made, the facts supporting these claims, and what the plaintiff seeks from the court (e.g., monetary compensation).
Service of process ensures that the defendant is informed of the lawsuit and has the opportunity to respond accordingly.
Each defendant named in the plaintiff's complaint must be individually served. Serving only one defendant and expecting them to inform the others is insufficient. This requirement applies regardless of whether the parties are married, live together, or conduct business together.
What are the legal requirements of service of process?
The legal requirements for service of process vary by jurisdiction, but there are some common principles:
- Who can serve: Service must be carried out by an individual who is not a party to the case (such as a professional process server or sheriff).
- How to serve: Documents must be delivered to the defendant in a manner prescribed by law. This typically includes personal delivery, leaving the documents at the defendant’s home or workplace, or, in some cases, mailing them the documents.
- Proof of service: In some jurisdictions, you may need to provide proof of service. This is a document signed by the process server detailing how and when the documents were delivered. This proof is then filed with the court to confirm that the defendant has been properly notified.
To find information about the proper methods of service in your jurisdiction, check your state's rules of civil procedure or consult with a local attorney. Many states have this information available on their official court websites.
Common challenges and issues when serving process
Serving process is often straightforward, but sometimes, it presents challenges. Defendants might avoid service, making it difficult to deliver the necessary documents. They might refuse to answer the door, hide their whereabouts, or even attempt to flee the state.
Consider the following hypothetical:
Sarah is suing a company for a defective product that caused her injury. She easily locates the company’s registered agent for service of process on the state’s Secretary of State website. However, the company tries to evade the lawsuit, and the registered agent avoids the address listed on the website or refuses to accept the documents.
As a result, Sarah’s legal team may need to use alternative methods, such as service by publication, which involves publishing the notice of the lawsuit in a newspaper as a last resort.
Another challenge can be serving defendants who reside out of state or even outside the country. This involves navigating complex international laws and treaties, such as the Hague Service Convention, which dictates how legal documents must be served across borders.
What is "nail and mail" service of process?
Nail and mail is an alternative method of service of process used when traditional methods, such as personal delivery, have been unsuccessful. This method involves two steps:
- Nail: The process server physically affixes (or "nails") a copy of the summons and complaint to the defendant's door or another conspicuous place at the defendant’s residence or place of business.
- Mail: The process server then mails a second copy of the summons and complaint to the defendant’s last known address. This is typically done via first-class mail and sometimes requires certified or registered mail, depending on the jurisdiction's requirements.
The requirements for "nail and mail" service vary by jurisdiction, but generally, this method can only be used after diligent attempts at personal service have failed. Additionally, court approval may be required in some jurisdictions before proceeding with "nail and mail" service.
What happens if service of process is improper?
Improper service of process can have severe consequences. If the defendant can prove they were not properly served, the court will likely dismiss the case.
While the plaintiff can typically refile the case and properly serve the defendant, this leads to additional expenses and delays the proceedings. Moreover, the plaintiff may miss the statute of limitations, which could bar them from refiling the case entirely.
Improper service can also undermine the plaintiff’s credibility with the court and give the defendant extra time to prepare their defense, having already gained insight into the plaintiff’s legal strategy.
Consider the following hypothetical:
John is suing a construction company for negligence that led to his injury. John’s legal team initially attempts to serve the company’s registered agent by leaving the documents with a receptionist at the company’s office. However, in this jurisdiction, the law requires personal delivery to the registered agent or a designated representative authorized to receive legal documents.
The construction company argues that the receptionist was not authorized to accept service, and the court dismisses John's case due to improper service.
John re-files the lawsuit, but this time the process takes several weeks, causing significant delays. In the meantime, the statute of limitations is nearing expiration, adding pressure to the situation. The construction company, now aware of John's legal strategy, has ample time to build a robust defense, potentially weakening John's position in court. This not only increases John's legal expenses but also jeopardizes his chances of a favorable outcome.
Ensuring proper service: tips for personal injury plaintiffs
At Enjuris, we want to help you avoid delays, increased litigation costs, or, even worse, having your case dismissed and missing out on receiving compensation. Here are some tips to help ensure proper service of process:
- Hire a professional process server: A licensed and experienced process server understands the legal requirements and can ensure that the documents are delivered correctly and promptly.
- Provide accurate information: Ensure the process server has all the necessary details about the defendant’s location and any specific instructions for service. The more information they have, the easier it will be to locate and serve the defendant.
- Consider alternative methods: If personal delivery is proving difficult, consider alternative methods of service. This might include service by mail, leaving the documents with someone at the defendant’s residence, or even service by publication.
- Document everything: Keep detailed records of all attempts at service, including dates, times, and any challenges encountered. This documentation can be crucial if the defendant later claims they were not properly served.
- Consult with an attorney: Statutes and case law regarding service of process can be confusing. Your attorney can provide guidance on the best strategies and ensure that all legal requirements are met. They can also help address any challenges that arise during the process.
Service of process is a fundamental aspect of the legal system that ensures fairness and due process. While it may not always be as dramatic as depicted in movies, it is an essential step that can determine whether or not you receive compensation.