Everyday, the rules of civil procedure guide thousands of hard-working process servers performing a vital role within our legal system.
Let’s take a quick look at how it all works:
When a party (the plaintiff) files a case against a company, government agency, or private individual, they’re required to notify the other party (the defendant) of the court proceedings.
The process server is hired (through the payment of a fee) by the plaintiff to serve notice upon the defendant and certify to the court that such service has been made according to the rules of civil procedure.
Although hired by the plaintiff, the process server must be impartial, and have no personal involvement in the case.
Process servers may or may not require a license or formal registration, and work as subcontractors, small business owners, and government employees.
An Introduction to Civil Procedure
Civil procedure is a complex subject that varies by state, as do the requirements for process servers.
We’re mostly concerned with the sections related to service of process, which specifies who can become a process server and how civil process must be served.
If you haven’t already Googled your state’s rules of civil procedure, go ahead and do so now. You’ll want to look for the officially posted rules on your state’s website (rules can and do change so it’s important to get your information from the most direct source).
Pay particular attention to key information such as who can serve, personal service, substituted service, and proof of service.
Here are some important things to know:
- Does your state require a license or formal registration to become a process server?
- Which type of documents can be served by a process server?
- What’s required for a valid personal service?
- Does your state permit substituted service? What are the requirements?
- Are there any special restrictions on service of process (for example, some states don’t allow service on Sundays, or Saturdays for those who observe Sabbath on that day).
- Should a proof of service be notarized before filing?
- And any other specific requirements in your state.
Who Can Become a Process Server?
Many people are surprised to learn the majority of states don’t license or regulate process servers.
If you live in one of these states, there’s no formal requirement to become a process server, and you can jump ahead with your business or look for an agency that’s hiring.
For quick reference, I’ve posted a regularly updated list of process server laws by state.
Personal service is the meat and potatoes of process serving—the classic example most people imagine when they picture a process server.
The majority of your cases will be served this way, by personally handing the defendant the papers whether it’s a private individual, small business, large corporation, or even a government agency.
In the case of a business, many times you’ll serve a corporate officer, registered agent, receptionist, or even a security person. As long as you can be reasonably sure the papers will be passed to a responsible party, personal service on a business representative is the same as service upon the business itself.
If the defendant attempts to avoid service by refusing the papers, this is called a refusal of service. As long as you’ve identified and informed them of the service, most courts will consider it valid.
Substituted service occurs when you serve a defendant through a third-party individual. This could be a spouse, parent, roommate, or even a minor child (in my home state of Colorado substituted service can be made on a minor as young as thirteen).
To complete a substituted service, you must verify two things:
- First, the defendant is currently living or can be located at the address where you will complete service.
- Second, that it’s reasonable to assume the person you service will pass along the papers.
Substituted service varies even more from state to state than personal service. Be sure to stay up-to-date on your state’s latest requirements.
Proof of Service
Upon successful completion of service, a process server will complete a proof of service, also called a return or affidavit of service.
This document will be filed with the court and becomes a permanent part of the case record. In many states, the proof of service is notarized and therefore becomes a legal affidavit.
Knowingly falsifying a proof of service is at best contempt of court and at worse a serious felony, and should never be considered in any situation.
Most often the proof of service form is provided by the client, but you’ll also find generic state forms on the process server laws page for your state.
You can also create custom proof of service forms by entering the case details into RocketLawyer’s free legal forms generator.
Typically, the proof of service is returned to the client.
Many process servers offer court filing of documents for an additional fee.
While court filing may sound complicated, the procedure is simple and involves a trip to the clerk’s office at the court where the case was filed. Be sure to obtain a receipt from the clerk to serve as proof the document was filed.
Most states and court systems now offer electronic filing of documents, which means you can file a proof of service with a portable scanner or even a good smartphone.
Visit your state court system’s website to learn more about electronic filing requirements (you may need a username and it’s better to establish an account before you find yourself needing to file some papers).
While overworked, court clerks will often repay kindness and can be a valuable source of clarification when in doubt about proper legal procedures.
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Process Server Ethics
While most process servers are hardworking and honest, there are always those who would take easy money in exchange for big risk. Sooner or later, they decide to start getting paid for papers they never actually served.
This is called sewer service, and it’s a persistent problem within the industry. Not only does it have the potential to disrupt a case and waste thousands of dollars in legal fees, it also diminishes our reputation as process servers.
In some states, Florida being one example, sewer service is even a felony, and at best will subject you to being served with your own lawsuit for criminal negligence.
By the time we receive a case a lot of effort and time has already been spent. Now the plaintiff is handing over their hard work to you, and must trust you will always act with honesty and integrity.
Honoring that trust is the mark of true professional.
How can you be sure, in the busy day-to-day life of a process server, that you’re following the rules and doing the right thing?
Whenever you’re in doubt, apply the reasonable standard:
Would a reasonable person, in the same situation, consider this a valid service?
If not, you need to rethink things.
Remember, as a process server you can be called to testify about the validity of your serve. If you can explain in plain, reasonable terms why your service is valid you have a much better chance of satisfying the court.
Always ask yourself, “If I had to testify before a judge could I justify my actions?”
While nothing in the law is ever foolproof, applying the reasonable standard is a simple strategy to check yourself whenever things get murky.
Honesty is always the best policy when doing the critical work of a process server. When in doubt, consult with your client on any difficult cases.
To better understand the risks and impact, do a quick Google search for “sewer service” and read a few of the most recent news stories.
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According to the statistics, process serving is a safe profession. Nurses, convenience store workers, and even truck drivers have higher occupational risk.
Though serious assaults on process servers are rare, they can and do occur. Always exercise sound judgment and remain alert while making your serves.
While there’s no guaranteed method to reduce violence, it’s important to remember that this is a job like any other, and it’s never worth risking your personal well-being just to make a serve.
When faced with an angry or verbally abusive subject, the best defense is simply to walk away. Remember, our goal is to complete service and get paid, and engaging a hostile party is counterproductive to those goals. Worse yet, even a legitimate case of self-defense can result in years of civil cases and thousands of dollars in legal fees.
Carry yourself professionally. Don’t intimidate. Remain calm and focused on your objective, and do not under any circumstance allow the subject’s emotions and language to influence your own.
Process Server Safety Tips
Here are some additional tips to keep you safe:
- Enroll in a self-defense or Krav Maga course in order to learn situational awareness and ready yourself for the worst case scenario.
- If in doubt, conduct a public records background check on a subject to learn if they have a violent or otherwise concerning arrest record.
- When possible, serve defendant’s in a public setting such as their place of employment.
- In bad neighborhoods or during late hours, consider bringing a second person along to call for help and provide assistance with any problems.
- Always carry your cell phone on your person.
- Check with local police for laws and classes regarding pepper spray as an effective self-defense tool.
- Process servers can request a civil standby from police when the risk of violence may occur.
- Never assume a person or situation is safe.
To learn more, visit the Promoting Assault Awareness and Protective Regulation for Servers Safety Campaign.
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The legal system in the United States has been largely consistent for hundreds of years. But it’s evolving to keep up with the times, just like any other industry.
In the last few years we’ve seen service of process via electronic means, such as email and even social media, become accepted by courts when other, more traditional methods of service, have failed.
While this is a new phenomenon, and personal service still accounts for the majority of serves made, it’s wise for any savvy process server to keep an eye to the future.
Take Note: Courts have grown frustrated with the problem of sewer service and are increasingly requiring more than just the process server’s word that the papers were served correctly.
Many jurisdictions now require process servers to GPS-stamp their serves with the time, date, and a photo.
A growing number of smartphone apps have become available to automate the process; and it’s a wise practice even if your state doesn’t yet require GPS stamping.