The Basics of Service of Process and Why it Matters

Courthouse

Service of Process is the procedure and method by which a party to a civil or criminal lawsuit puts another party on notice that legal action has been taken. Service of process is essential to the right of due process given by the Fifth Amendment to the United States Constitution. Generally, a defendant is being served by a plaintiff by way of a process server.

Understanding Service of Process:

A process service delivers, or “serves,” legal documents on the parties involved in the lawsuit. While this may sound like a simple enough concept, the laws and regulations governing process service make it complicated as defective service can be a real issue for the case.
The United States Constitution’s Due Process clause prohibits a court of law to have personal jurisdiction over a defendant – unless the defendant has been provided proper notice of the proceedings to be held in court. Logistically, courts require a plaintiff to a lawsuit to have the court summons and the complaint served on the defendant. Effective service of both of these documents is considered “process.”

There are several ways to serve another party and not all methods of service are available in all lawsuits. Before attempting service on a defendant, it is critical to know what law governs service. This is particularly true for service overseas, as international service of process laws are more complicated and must be followed closely to effectuate proper service. Notably, if service of process is not completed properly, the case will be unable to progress. Additionally, jurisdiction of the court can be contested at any point during the lawsuit. Below are the general types of service:

● Personal service: this happens when a process server hand delivers the complaint and summons to the named party in the lawsuit. Personal service may happen at the defendant’s home, workplace, or some other location. The person served must be identified, handed the papers, and told they are legal court documents.
● Service by mail: this happens when the process server mails the complaint and summons to the defendant at his or her home or mailing address. Even though the documents are mailed, proof of service must be detailed including information on to whom the documents were addressed, the location from which the documents were mailed, as well as when the mailing happened. Typically, when service by mail is allowed, it is preferred to be done via certified mail.
● Service by posting: This type of service is allowed in limited cases such as when a landlord can secure service by posting the complaint and summons in eviction cases when other methods fail or when the plaintiff is allowed to serve a defendant by posting the documents at the courthouse.
● Service by publication: this type of service happens when a party publishes the summons and complaint in a news publication in an area where the defendant is likely to reside. Typically, the court must give the plaintiff permission to complete service this way. Generally, a plaintiff must show that other attempts to serve the party have failed prior to being permitted to use this method.

If you need help with service of process on your case, contact Ancillary Legal today.