Unified Judicial Services’ Ultimate Guide to Process Serving
Introduction
In this guide, we will examine process serving; the topics that we will cover include how serving legal documents works, the laws and regulations, and the overall role of a professional server. Process serving plays a key role in ensuring individuals are informed of pending legal action against them by delivering legal documents, such as subpoenas or summons, to an individual under the law. This entire process is enshrined in the United States Constitution’s Due Process clauses. Legal experts have said that process serving is essential for ensuring a fair and just legal process and is crucial in allowing individuals to defend themselves against any legal claims made against them.
Definition of Process Serving & Service of Process
Process serving is the delivery of legal documents, including subpoenas, summons, complaints, and other court-related documents. Oftentimes this happens by hand. Service of process is typically carried out by a neutral third party who is unbiased. Depending on the locality’s specific laws and regulations, a process server can not be a plaintiff or defendant and have no connection with the plaintiff or the defendant in a case or related case.
Importance of Process Serving in the Legal System
Several of the United States Constitution’s amendments provide the protections required for process of service, including.
- The Fourth Amendment protects against unlawful search and seizure and sets the mechanism by which legal documents must be executed. It states that specific legal documents must be supported by probable cause and granted by a neutral magistrate.
- The Due Process clause referenced in the Fifth and Fourteenth Amendments guarantees that individuals have the right to be adequately informed when they are party to a legal proceeding.
- The Eighth Amendment is designed to protect citizens from excessive fines and bail. This relates to serving as it states that an individual cannot be required to pay an excessively high bail for failing to respond to a legal proceeding. If this protection were not in place, the service could be used as a tool of oppression. The Eighth Amendment protects and ensures service is just and that individuals have protections against excessive and arbitrary penalties.
What is Process Serving?
How Process Serving Works
Process serving is sometimes given little thought; however, it is an essential part of the legal system of the United States. It provides the way that legal documents and adequate notice are delivered to impacted parties.
Some documents can be “complaints” or, more often, “summons.” These documents contain all pertinent information regarding the legal matter (it could be civil or criminal). The contents may include allegations against the recipient, description of events that led to the lawsuit, names of all parties involved, the court and jurisdiction the case is filed in and the date and time of the court hearing, and any other procedural matters necessary.
In addition to complaints and summonses, a server may deliver documents such as subpoenas, motions, orders, judgments, and writs. These documents are typically referred to as court papers and involve legal matters informing individuals of steps necessary or permissions granted as part of a court order.
The role of a Process Server
A process server is a person responsible for delivering (or serving) legal documents, including summons, complaints, subpoenas, motions, and other court papers, to individuals involved in a legal matter. There are several requirements that a server must have. The server is to act with impartiality and must ensure that the individual properly receives the notice. They must ensure the documents are personally served to the specified individual, a cohabitor (e.g., a roommate) of the individual, or other proper methods depending on the jurisdiction and specific circumstances.
As each area can be different, the server needs to ensure that they are taking into account and following all the specific rules of the locality, state, and federal laws while performing service. Once an individual has been adequately served, the server must provide proof of process which may include a signed affidavit to the entity that requested service.
Types of Process Serving
The most common types of service include:
- Personal Service refers to the delivery of legal documents to an individual at their home or place of business.
- Substituted Service is when a server cannot locate the individual they are to serve and instead deliver documents to a third party. The third party could include a family member or a coworker at their place of business.
- Service by Posting is the posting of legal documents prominently in the defendant’s last known residential or business address. This is typically combined with the mailing of the documents and is sometimes called “nail and mail.”
- Commercial Process Serving is delivering documents to a corporation or other business entity, typically about legal proceedings against that business.
There are less common types of serving which include:
- Publication Service is the publication of legal documents in a local newspaper if the defendant cannot be located for personal or substituted service.
- Service by Mail is the delivery of legal documents to a defendant via mail, sometimes with additional requirements (such as certified mail or proof of receipt) depending on the jurisdiction.
Residential Service
Serving an individual at their home or residence is called residential process serving. This is how documents relating to a lawsuit are provided notification about an upcoming legal matter with which they need to comply.
Proper residential service requires that the document be provided by the individual named in the document or a co-resident of their domicile. A server must provide proof of service, typically in the form of a signed affidavit.
Corporation Service
When a business entity is the subject of a legal document that requires service, this is called corporation process serving. This differs from residential process serving because it is an entity, a business, or a corporation that is the subject of the service.
When serving a commercial entity, the documents must be provided to the appropriate organization representative in a legally acceptable manner that is enforceable. The corporation’s registered agent is typically the individual who can receive the process serving; however, depending on the jurisdiction, service may be provided to a representative of the business or other methods that are recognizable by the law.
As with residential serving, a server must provide proof of process which usually comes in the form of a signed affidavit.
Rush Service
If there is a heightened urgency in the need to serve an individual or entity, a lawyer or legal entity may use rush process serving. This is typically done when the deadline is fast approaching and time is of the essence.
Depending on the specific circumstances, various techniques are used for rush service. These include using multiple servers to cover multiple or larger geographical areas or hiring specialized couriers to ensure fast delivery.
Even if the service is rushed, the server is required to serve the individual properly and must provide proof of process in the form of a signed affidavit.
Personal Service
When an individual is the target of service, typically because they have to be delivered summons or other legal documents, personal service is the name of the method of serving an individual personally with specific documents. This is typically the preferred method of serving an individual or an organization.
When a server makes a reasonable effort to provide personal service, the next options include substituted service, which provides alternative methods for fulfilling the requirements to deliver the documents.
Substituted Service
There are situations where serving a company or an individual is impractical or impossible. These situations may be that the individual is evasive, missing, or unable to be contacted. Multiple ways substituted service can be accomplished, and each should be chosen carefully depending on the very specific circumstances. One way to utilize substituted service is by serving a cohabitor such as a spouse or a roommate. Other methods include posting them prominently in the defendant’s last known address or delivering the papers to their place of employment.
Additional ways to perform substituted service include registered mail or posting via publication in a local newspaper. As with all service methods, the server must provide proof of serving, including a signed affidavit, a registered mail receipt, a return of service, or proof of publication. The proof used will depend on the method of service.
Laws and Regulations
Jurisdiction plays an important role when it comes to laws and regulations surrounding process serving. Always make sure that you research the federal, state, local, and other laws and regulations for your specific case.
Federal Laws
Some federal laws pertain to process serving in general, which include:
- The Federal Rules of Civil Procedure (FRCP). The FCRP is a set of rules that govern serving legal documents in federal cases.
- The Servicemembers Civil Relief Act (SCRA). The SCRA protects active-duty members of the military. It provides protections against default judgments and provides stays of civil proceedings during military service.
- The Electronic Signatures in Global and National Commerce Act (ESIGN). The ESIGN act allows electronic signatures as legally binding in transactions that occur across state lines, jurisdictions, and even international boundaries.
- The Fair Debt Collection Practices Act (FDCPA). The FDCPA does more than cover process serving there is a portion that delineates how papers are served in cases involving debt collection.
Process serving is generally legislated from a state and local level, so you must familiarize yourself with the different legal jurisdictions. Each state has its own specific procedures and protocols governing how process serving is to be conducted, understanding which regulations apply to your specific case will vary greatly depending on its location and other factors relating to the specific case.
State Laws
There are some commonalities when it comes to generally serving in each state, which include:
- Methods. Each state allows for personal service where a person individually delivers the documents to the person served. Depending on the state and locality, states have different rules involving alternative service methods, including via publication or mail.
- Due Process. No matter the jurisdiction, the US Constitution provides for due process of law, which states that proper notice and an opportunity to be heard in a court are granted to all individuals.
- Neutrality. In most states, the process server must be a neutral third party who does not have any part in the legal matter. The reason for this is to ensure proper notice is provided and ensure due process under the Constitution. There are exceptions to this, including small claims courts may have modified and sometimes relaxed rules in different states.
- Proof of Service. Most states require to provide proof of service which typically includes a signed affidavit from the server.
- Timeframe.
As previously stated, each individual state has its own set of rules governing process serving. Always consult the laws of the particular jurisdictions and states you work in. The major facets of these laws generally fall under the following categories:
- Process Procedures. Every state has its own procedures on how process serving is to take place, and they may vary wildly depending on the location. They typically involve specific requirements revolving around the bullets listed here and above.
- Process Server Requirements. Each state has its own requirements that must be met for an individual, which may include licensure, bonding, and other prerequisites to operate as a process server.
- Notification of Service. Most states allow for a signed affidavit; however, other methods, such as proof of mailing, certificate of service, return of service, or proof of publication, may be allowed in specific circumstances and localities.
- Technology. This, too, varies between states, and the individual circumstances may vary as well; however, some states allow other technologies to be used in process serving, including electronic signatures, email service (in special circumstances, typically), and remote online notarization.
- Fees. Each state has different levels of fees concerning process serving. These different regulations may include a maximum fee that they can charge for their services, expense reimbursement, court fees, statutory fees, and fee disclosure.
Ethical Considerations
Ethics are an essential facet of process serving. Servers play a vital role in ensuring the fairness and integrity of justice. A server oftentimes has access to sensitive and even confidential information concerning a lawsuit or party’s location. Ethically they must maintain this confidentiality and use it for the specific purpose of serving legal papers. Neutrality is a core tenet of process serving; a server must show no bias or prejudice that may interfere with any party’s outcome in individual cases. A server must be accurate, diligent, and pay close attention to details to ensure that the proper person is served the proper documents at the proper time. Lastly, the server has significant responsibility and must be held to a high standard of accountability if they commit any errors while conducting business.
Legal Requirements for Service
Each state has a separate level of requirement for process serving. Some commonalities are they all have restrictions and rules based on age, residency, training, background check requirements, bonding, insurance, and proper registration. Some may not have specific requirements for the items listed, or they may vary significantly from state to state.
Challenges of Process Serving
There are many dangers that process servers face on a daily basis. From locating a person you need to serve to deal with resistance or even hostility from people avoiding service, servers must also navigate legal restrictions and be mindful of their safety when entering potentially dangerous situations. Additionally, the time constraints of serving legal documents can add to the daily stress and difficulties process servers face. Additionally, using technology to avoid service can create new challenges for servers, requiring them to constantly adapt and stay up-to-date with the latest tools and techniques. Overall, being a process server requires unique skills and abilities to overcome the various challenges and dangers they may face. Servers must have the special skills and abilities to manage the various challenges and risks they may face.
Avoiding Service Refusals
Avoiding service is a common challenge faced by process servers. Individuals who seek to avoid being served may change their addresses, may stop answering their door, phone, or other forms of contact, and hide from servers. Some may even try to evade service by staying in public places or having someone else answer the door or phone in their place.
The challenge of avoiding service is one that process servers frequently face. It is the responsibility of servers to overcome these challenges and serve the legal documents efficiently, while adhering to legal requirements and ensuring their own safety.
Ultimately, the challenge of avoiding service highlights the importance of process servers in ensuring the integrity of the legal system and delivering legal documents to the individuals who need to receive them.
Serving Difficult to Find Individuals
Some individuals may go to extreme lengths to make it difficult to be found and served legal documents. This goes beyond and is a related but slightly different set of challenges from avoiding service referrals.
Servers need to have a diverse set of tools to keep pace with individuals whose goal is to avoid being served legal papers. These include sophisticated research resources to conduct background checks, search public records and find associates of the individual. It may also include GPS tracking devices, stalking social media, or access to surveillance systems. Servers must be ready to handle both resistance and hostility from serving legal documents, along with the necessary skills to navigate difficult situations while maintaining professionalism.
Managing Service in Multiple Jurisdictions
Dealing with multiple jurisdictions, including localities, municipalities, and states, presents its own challenges when delivering legal documents to individuals. Some challenges may include
- Laws and Regulations. Each jurisdiction may have its own laws and regulations that could vary from slight to significant.
- Distance and logistics. Coordinating in multiple locations will add to the complexity of tracking a difficult-to-find individual. In addition to knowing the regulations and processes across the different locations, coordinating finding someone in a city or area that are unfamiliar could prove immensely difficult.
- Time and Cost. If you need to navigate multiple locations, it will often require specialized resources, coordinating with multiple servers, and travel expenses.
Choosing a Process Server
Choosing the right process server for your document delivery depends on the specific situation. It is important to consider multiple factors to make an informed decision carefully. The first step is to check the credentials of the server, including their licensing and insurance status, as well as their reputation in the industry. You can find this information by, depending on the locality, checking with relevant authorities and industry groups. Some examples of industry groups include the National Association of Professional Process Servers (NAPPS) along with local groups such as the New York State Professional Process Servers Association (NYSPPSA) and the California Association of Legal Support Professionals (CALSPro). These industry groups have Codes of Ethics and requirements that members must abide by. These groups additionally provide resources to help you make the most informed decision. Experience is also an essential factor to consider, as a process server with extensive experience in serving legal documents is more likely to be able to deliver them successfully.
A process server with local knowledge of the area, availability for services outside of normal business hours, good communication skills, and a reasonable price should be chosen when seeking assistance with serving documents.
Unified Judicial Services offers professional process serving in the NYC area, contact Unified Judicial Services at 718-400-9046 today for process serving in Brooklyn, Queens, Staten Island and the New York Metro Area.
Qualifications of a Professional Process Server
When researching the best process server to hire, there are several qualifications to look out for. Some qualifications you should look out for include: valid licenses, proof of insurance, industry knowledge, and, most important of all, knowledge of the laws and regulations that govern the service of legal documents in the jurisdiction where they are working. This includes being familiar with the rules regarding how and when the documents can be served, as well as any restrictions that may apply.
It is paramount that the processor server properly serves the individual with the documents and provides proof of their service, following all of the relevant rules specific to the case. As rules vary from location to location, proper service is paramount to successful service.
What to Look for in a Process Server
Soft skills are often equally essential. The server you hire should have excellent communication and interpersonal skills, as they will interact with various individuals, including defendants, witnesses, and lawyers. They should also be able to handle difficult or confrontational situations professionally.
Reliability and attention to detail are also essential qualities for a professional process server, as they ensure that the legal documents are served accurately and on time. This may involve conducting extensive research to locate individuals who are challenging to find or working outside of normal business hours if necessary.
How to Hire a Process Server
Hiring a process server may seem daunting, and sometimes it might be. Prudence and proper vetting are essential when hiring somebody who plays a vital role in your legal matter. Following this guide and using it as a starting point and supplementing it with doing your own research are good starting points.
It is more than hiring the right professional; providing a key, detailed set of instructions and providing the server with all necessary information may mean the difference between success and failure. If you know that a subject of document delivery is known to be particularly avoidant of service or they may sleep at their partner’s residence, that can be key information the server uses while researching to deliver documents properly.
The right process server starts with good communication in both directions; follow that up with proper research to ensure that you choose a professional process server who can deliver the legal documents you need in a timely and efficient manner.
Glossary
Affidavit of Attempted Service: A sworn statement that confirms that a process server attempted to serve legal documents but was unsuccessful.
Affidavit of Service: A sworn statement that confirms that legal documents have been served to a person or entity.
Complaint: A legal document that sets forth the allegations in a lawsuit.
Jurisdiction: The geographic area where a server is authorized to serve legal documents.
Personal Service: The delivery of legal documents directly to the person served.
Process Server: An individual authorized to serve legal documents to a person or entity.
Proof of Service: A document that serves as evidence that legal documents have been served to a person or entity.
Return of Service: A document used as evidence of the successful delivery of legal documents to the person or entity being served.
Service of Process: The delivery of legal documents to a person or entity, informing them of a legal action against them.
Subpoena: A legal document that requires a person to produce documents or testify in court.
Substitute Service: The delivery of legal documents to someone other than the person being served, such as a family member or co-worker.
Summons: A legal document that notifies a person of a pending lawsuit and requires them to appear in court.
Frequently Asked Question
What does a process server do?
A process server is an individual who delivers legal documents, including subpoenas, summons, complaints, and others to individuals to inform them that they are party to a legal matter.
How do you become a process server?
Depending on your specific state and locality, becoming a process server may involve gaining licensure, obtaining a surety bond, registering with the appropriate governmental agency, and fulfilling age and specific local and legal requirements.
Can a process server just leave papers at your door?
Legal document delivery rules vary by location; however, in general, a process server cannot simply leave documents at the door of your residence. Most states require personal service, meaning that a document must be physically delivered and confirmation, sometimes in the form of a signed affidavit by the server, that the document was personally delivered.
Some instances allow for alternative methods of service delivery, but the requirements vary by individual states and locations.
What hours can a process server serve you?
The hours that a process server can serve documents depend heavily on the laws and regulations in a given location or jurisdiction. However, in general, servers are permitted to serve legal documents during normal business hours, as well as outside of normal business hours if necessary to effectuate proper service.
What kind of papers does a process server serve?
A process server serves legal documents to individuals who are parties in a legal case. These documents may include summons, subpoenas, complaints, and court orders. These documents typically notify individuals that there are pending legal actions involving them, and process services are intended to provide them with an opportunity to respond to the allegations. The purpose of serving legal papers is to ensure that all parties are properly notified of the legal proceedings and can be heard in court.
How late can a process server come to your home?
The exact time a process server can serve documents depends on regulations and individual laws in the specific location they are to be delivered. Generally speaking, servers are permitted to serve legal documents during business hours. In some cases and some locations, to properly serve an individual, service may occur at any time during the day.
How long does a process server have to serve papers?
The time and deadline for documents to be delivered are determined by location, jurisdiction, document type, and particular case. This can range from weeks to months.
Sometimes, if a document cannot be delivered, a process server or party may be required to submit a report explaining the failure to serve documents. This may result in a court allowing alternative service methods or taking a different action.
How much does a process server cost?
The cost to serve documents can vary depending on many different factors. This includes location, jurisdiction, number of documents, types of documents, individual to serve and others. Typically process serving can range between $50-$150 and even go higher depending on the circumstances.
What happens if a process server can’t serve you?
If a process server cannot deliver a document, they may be required to submit a report explaining the failure to serve documents. This may result in a court allowing alternative service methods or taking a different action.
Can a process server leave papers with someone else?
A process server may be allowed to leave documents with another person. This may be called “alternative service” or “substitute service.” The specificities vary by jurisdiction; however, a server must make a good-faith effort to serve the documents personally. The individual receiving the service typically must live in the same residence as the individual, including a partner or roommate, is legally allowed to receive the documents, and is informed of the nature of the service.
It’s essential to remember that substitute and alternate service may not be acceptable in all situations.
Can a process server trespass?
Typically, a process server cannot intentionally and unlawfully enter an individual’s private property. There are some exceptions, referred to as a “common law right of ingress” in the situation where there is a lawful purpose to enter the property.
The ability to utilize common law right of ingress may vary wildly between jurisdictions and you should consult with a lawyer knowledgeable of property and real estate laws before doing so.
What is a certified process server?
Before defining it, it’s important to keep in mind that not every state and location has a specific certification that is required for process servers. Additionally, process serving licensure and certification varies between states and jurisdictions.
The locations that have certifications will typically have regulations for becoming a process server and the rules regarding their actions can vary widely by jurisdiction. The states that have prerequisites typically, they require completing training, passing an exam, and meeting certain qualifications, such as passing a background check and having no prior criminal history.
Do you have any advice for those considering using a process server?
When choosing a reputable process server, consider using a certified process server or one that has been recommended by a trusted source. Ask for references and check the process server’s credentials, including any certifications or licenses they may hold.
Understanding the laws regarding process service can vary widely by state and jurisdiction. Before using a process server, it’s essential to understand the specific requirements in your area and to ensure that the process server you are working with is knowledgeable about these laws.
Providing the process server with all of the relevant information is very important. Giving the individual any specific, relevant information is imperative. This may include, Their name, address, employer, partners, and associates, as well as any specific instructions or requirements for the service. Accurate information will help ensure that the process server can successfully serve the papers.
What common mistakes do process servers make, and how can you avoid them?
Here are some common mistakes that process servers make and tips to help you avoid them:
Improper service: One of the most common mistakes that process servers make is serving papers improperly, which can result in the case being dismissed or delayed. To avoid this, make sure that the process server you are working with is knowledgeable about the specific requirements for service in your jurisdiction and is able to properly complete the service.
Inaccurate information: Another common mistake is providing incorrect or outdated information, which can result in the process server being unable to locate the person being served or serving the papers to the wrong person. To avoid this, provide the process server with complete and accurate information and make sure that it is up-to-date.
Trespass: Process servers must follow the law and not trespass on private property when attempting to serve papers. To avoid this, provide the process server with specific instructions for how to access the property or arrange for them to meet the person being served elsewhere.
Unprofessional behavior: Process servers must maintain professional behavior at all times when serving papers. To avoid this, choose a reputable process server with a proven track record of professional conduct.
Delays: Delays in service can result in missed deadlines and additional costs. To avoid this, make sure that you are working with a process server that has a reputation for prompt and efficient service.
Not following state and local laws: Each state and local jurisdiction has different laws and regulations regarding process service. To avoid mistakes, make sure that the process server you are working with is knowledgeable about the specific requirements in your area.
Not having proper identification: Some states require process servers to have proper identification, such as a badge or identification card, when serving papers. To avoid this, make sure that the process server you are working with is properly trained and has the necessary identification.
What are the skills and qualities necessary for a successful process server?
Attention to detail: A successful process server must have a keen eye for detail and be able to accurately record information about the service and the person being served.
Good communication skills: Process servers must be able to communicate effectively with both the person being served and the client to ensure that the service is completed successfully.
Problem-solving skills: Process servers often encounter obstacles when trying to serve papers, so they must be able to think critically and come up with creative solutions to these challenges.
Physical fitness: Process servers may need to walk long distances, climb stairs, and traverse rough terrain to complete their job, so they must be physically fit.
Knowledge of laws and regulations: Process servers must be knowledgeable about the specific laws and regulations regarding process service in their jurisdiction and be able to follow them precisely.
Organization and time management: Process servers must be able to manage their time effectively and be well-organized, as they may need to serve papers in multiple locations in a single day.
Adaptability and flexibility: The job of a process server can be unpredictable, so they must be adaptable and flexible and be able to handle changing circumstances on the fly.
Discretion and professionalism: Process servers must maintain a professional demeanor at all times, even in challenging situations, and be able to handle sensitive information with discretion.
Final Thoughts
If you are in the New York metro area, including Brooklyn, Staten Island, Queens and the surrounding areas and are in need of process serving, skip tracing or other court services, contact Unified Judicial Services at 718-400-9046 today for process serving in Brooklyn, Queens, Staten Island and the New York Metro Area.
For other areas, begin your search with either your local professional association nearby, for example, Florida Association of Professional Process Servers (FAPPS), Texas Process Servers Association or a national association such as National Association of Professional Process Servers (NAPPS).