Process service is a system to deliver summons, complaints, and other legal documents to the defendant when you want to take them to court. Also known as due process, this procedure ensures that the respondent has sufficient time to seek the legal support they require.
A process server plays a critical role in the justice system because their job maintains a necessary balance of power between an individual and the state. When due process is not afforded the diligence it deserves, court cases can be delayed or dismissed entirely.
The importance of this methodology means there are incredibly stringent guidelines pertaining to how a person can be served, and specific steps that must be followed. When non-professionals try to engage in process service, necessary measures may get omitted which results in incorrect service. This article will explain some of the common process service mistakes and discuss what to do if court papers get served incorrectly.
In order to ensure the timely and proper delivery of process service, reach out to the professional and competent team at DR Legal.
The United States Constitution Mandates Service of Process
The United States Constitution dictates that no individual will have liberty, property, or rights compromised without due process. This essentially means that every person has the right to be informed that they are being summoned to court by a regulated and uniform procedure. By doing this, the constitution and the United States justice system ensure that the rights of an individual and the power of the state are moderated.
Every defendant in a lawsuit needs to be served the legal papers by a person over the age of 18, although the rules can vary depending on the county, the type of papers, and other factors. In most cases, the person serving must hand the papers personally to the defendant. In some cases, exceptions are made. Courts require an affidavit of service to prove where, how, and when a person has been served.
What Happens if Someone is Not Served Properly?
Proper service is crucial because it gives notice to a defendant about the court hearing and allows them time to solicit legal advice in preparation for the court date. Incorrect or incomplete delivery performed by an amateur process server hinders the legal process, often resulting in vexing delays or case dismissal.
The best way to avoid court papers being served incorrectly is by hiring a professional process server with a sound understanding of how the process service procedures work. An experienced process server will also be able to track down an avoidant defendant quickly and accurately so you can give your legal proceeding a smooth start.
To ensure a seamless and complete service process, give the experts at D&R Legal a call to handle your process service. Our team executes due diligence and will provide you with a fully supported, proficient, and affordable service so you can advance to your court date sooner.
What if The Process Server Served The Wrong Person?
Personal service is the most common way a summons or complaint is served. This involves the process server tracking down the defendant and handing the documents to them in person at their home or work address.
Occasionally, and particularly among inexperienced process servers, the legal documents get delivered to the wrong individual. Under similar circumstances, a server may try to serve process to a deceased defendant or to serve papers at an outdated address. Mistaken identity can seriously jeopardize your case.
If the defendant becomes aware of ineffective service, they may contest with the courts and file a motion to dismiss the lawsuit or start the case all over again. When this happens, any prior default judgment that may have been ruled in your favor will be forfeited.
Not Verifying Each Delivery
Part of ensuring you are serving the right individual is by cross-checking to verify their identity as they are being served. When the delivery verification step is skipped, it becomes extremely challenging for the courts and the judge to assure that the documents got delivered to the intended recipient in a timely manner.
Professional process servers will always take field notes on the job to substantiate any contested claims that the service was ineffective. This is because sometimes motions to dismiss based on these grounds may surface much later in the trial. Therefore, the process server keeps a record of the event to mitigate potential complications down the line.
What is an Affidavit of Service?
An affidavit of service is a legal document completed by the process server stipulating that the individual was identified, verified, and that the documents were delivered in the required timeframe. The affidavit also specifies the place and the way the defendant was served.
Affidavits must get notarized by a legal professional. Skipping this step lays the grounds for the opposing party to contest the service of process as ineffective or insufficient, meaning you will have to start the legal proceedings again from the beginning, or worse, the case gets thrown out.
What Happens if Court Papers Are Sent To The Wrong Address?
An alternative method to personal service is service by certified mail, where legal documents get posted to the defendant’s residence via registered post. The purpose of the serving process is to notify a defendant of a lawsuit against them, so if you have sent the documents to the wrong address, the defendant has grounds to contest the effectiveness of service.
Particularly if you do not know the defendant personally, or if it has been a long time since you have contacted them, it pays to verify the defendant’s residence before serving by certified mail. Professional process servers are adept researchers who ensure that the right person is being addressed when serving via mail.
What happens if there’s an Incorrect name on legal documents?
It could be that the process server has tracked down the right person and served the documents effectively, only for the defendant to discover that the documents do not contain their correct legal name.
This is not all that uncommon, particularly when the plaintiff doesn’t know the defendant personally. The courts, when they seek to correct the name, must determine whether a reasonable person could determine that the individual identified on the legal documents was, in fact, the defendant. If this is the case, the misspelling is considered a misnomer.
Alternatively, if the individual could not devise the documents related to the defendant, the misspelling would be known as a misdescription. The plaintiff must then move to add the correct defendant to the action.
Failing to Prepare The Process Server
There are people who act in compliance with civil litigation processes, and then there are those who don’t. If you are aware that the defendant may engage in playful tactics to avoid being found and served, it’s a good idea to let your process server know. Additionally, if a person usually behaves in a hostile or confrontational manner your process server can be better prepared and serve more effectively if they are in the loop.
If you have relevant information like the defendant’s residential address, workplace, parking space, or any upcoming vacations or professional trips, pass it on to the process servers. These details help to assure that the individual is served correctly on the first attempt, which can save on costs if you pay on a per-attempt basis. Moreover, it reduces the likeliness that the documents fail to get served and get you to your court date faster.
Invalid Proof of Service California
Providing documents to the court clerk verifying that process servers have performed their jobs correctly, and substantiating the documents with evidence, is a part of the civil litigation process.
In some counties, a small claims court clerk will send the documents via certified mail directly to the defendant’s address for a small fee. The signed post office receipt is returned to the court clerk, and that is considered proof of service.
However, if you’re opting for personal service, substituted service, or service by first-class mail, the courts have no way of knowing whether the service process was executed correctly unless you tell them. We use a document called a Proof of Service form that you can obtain from the court clerk. It gets signed by the process server and details how, when, and where the service took place.
Use a professional process server like D&R Legal to get your papers served in the state of California.
Telling the Defendant They Will Be Served
It may be tempting to contact the defendant to notify them you are taking legal action against them or that service is impending. But this may open a can of worms that makes it more difficult and expensive to serve them.
For example, if they want to engage in evasive antics like choosing to stop answering the phone, refusing to answer the door, or not showing up to work to avoid being served. Even disclosing that your application or complaint has gone through may jeopardize your chances of serving them easily.
The service of process demands precision and accuracy. If someone is avoiding service of process, or the court papers find their way into the hands of anyone other than the intended defendant there can be major consequences.
The opposing counsel may file a motion to dismiss your case entirely, or you may have to start all over again and lose any potential rulings in your favor. Hiring experienced process servers is the best way to ensure your process will be served efficiently and effectively and avoid complications and delays.
D&R Legal is the process serving experts in California. We guarantee the most smooth and streamlined service available and offer our full support as you move through civil litigation procedures. If you need affordable process servers from legal specialists who can get it right the first time, give D&R Legal a call today!