A process server is a term many people outside the legal field have little to no understanding of. Lots of misconceptions about what is a process server, what it does and why it is important, exist. Its history, however, dates back to centuries ago to the year 1215 when the phrase ‘due process’ was first used in a legal document called Magna Carta. The term evolved since then to what is known today as process servers.
The United States Constitution requires that whenever an individual is summoned for an appearance in court, he or she must be notified in advance of the summons and complaint before any proceedings commence. Years ago, this wasn’t the case. Courts would go ahead with the ruling even without a defendant knowing there was a trial, but times have changed. Better ways of handling cases by courts were devised, the process of serving papers was officiated.
Initially, this process was carried out by sheriffs within a specific jurisdiction. Although, as cities grew the task overwhelmed the sheriffs and they could hardly carry it out efficiently. That marked the beginning of modern process servers. But, exactly what is a process server?
Process Servers and Their Roles
The process servers’ main role is to act as court messengers. They are individuals who serve a person, a defendant, with a notification that requires him or her to respond to a summon by the court for a proceeding. This is done through following a legal process of providing the defendant with court documents as laid out by their state. The process is achieved through personal dispensation or sub-serving to another individual within the same household or business.
After serving them with the court document, an actual evidence is required of the servers as proof that the paper(s) was delivered. This evidence is notarized and handed to the company, individual or the organization that required the service to be carried out. This proof is also referred to as affidavit of service.
Duties of a Process Server
The roles of the servers in terms of delivering documents are different in each state. Every state has rules on how the paperwork is served, but the general functions include:
• Receiving processes from magistrates, court clerks or attorneys and serving them to specific parties.
• Tracking and locating individuals to be served, using means like public utility, city, county or state records and telephone directories, and delivering the document.
• Record time and place of document delivery
• Sometimes they deliver other messages and documents between attorneys and courts.
The process of locating a person to be served with a process involves what is often referred to as skip tracing. That is searching for someone who doesn’t want to be found. This is one reason why hiring the services of professional process servers is important.
Importance of Process Servers
Process server’s role is significant for various reasons, but the one that stands out is to ensure that the due process of law is upheld in the United States. Consequently, servers are essential to the civil society as they ensure that legal documents are served appropriately and in a fashionable manner. They are also the ones burdened with answering questions like ‘what does subpoena mean’ among others to individuals who have less understanding of the legal terms.
Every US citizen, or rather defendant, has a right to be served with a process, legal documents, before they appear in court. If the papers are not delivered appropriately, courts will not be able to rule on the case without the defendant knowing about it. The case may even be thrown out if the service is deemed improper. Supposing a defendant is issued with the legal document and knows that he or she should appear in court, but fails to show up, the plaintiff will be advantaged and the case will be ruled in his favor. Thus, the delivery of legal documents to individuals is important in defending the rights of citizens.
Process Servers and Licensing
It is not mandatory for a process server to be licensed, at least not in all states in the US. Some like Arizona, California, Georgia, Florida, Alaska, Illinois, Montana, Nevada and Oklahoma require that servers be registered or appointed to carry out the task in specific counties.
Types of Documents Delivered by Process Servers
Courts documents delivered to defendants are often referred to as processes, and the documents mainly include subpoenas and summons. But, what is a subpoena and what does summon mean?
What does summon mean? What is a summons? These two questions are frequently asked and few people can answer them or even find words to define summon. According to the law, when a plaintiff initiates a lawsuit against a defendant by filing a complaint, he or she is legally required to legally inform the party through a document, of the existence of a case. This document is referred to as a summons and is issued by the courts. Included in the court summons is the identity of the court where the lawsuit is filed under, the identity of all the involved parties, as well as the official seal and the signature of the court clerk. Once the defendant is served with the complaint, the lawsuit will officially commence.
The legal English used to write summonses is sometimes difficult for some individuals to comprehend, which is why some states have them written in simple English. Also, the contents of the court summons may differ slightly by jurisdiction, but the rules state that the document should include a court’s name, the address of the plaintiff’s attorney, the parties involved, and the time a defendant is to appear before the court if necessary. Additionally, a summons includes a statement that informs the defendant of the consequence of failing to respond.
Answering the question ‘what is a summons’ wouldn’t be complete without mentioning what it means in civil terms. It is a type of a summon that accompanies a civil complaint and is delivered either by a process server, a constable, a sheriff and an individual who is over 18 years of age. This civil complaint document specifically gives details about where the case will take place, the information contained in a lawsuit, the names of parties involved, and the damages the plaintiff is seeking. Failure to take action after getting summons and complaint, as is often the case, will result in the plaintiff given a default judgment, which involves the damages he or she is seeking.
If a summons is not properly delivered, that is, if process servers fail to follow the laid down rules of the courts in their jurisdiction, the defendant may come to court and explain to the judge that he or she was not appropriately served. Should this be the case, the judge will stop the lawsuit and the defendant may be offered another chance to be served well.
The same way many people can’t define summon is exactly how others won’t define subpoena. When a court, an administrative agency, a legislative body or the grand jury wants to compel someone to appear before a court and testify, a subpoena is used. This, in simple terms, is a subpoena definition.
The importance of knowing what is a subpoena is clearly evident when an individual is served with one and he or she doesn’t show up. Failure to appear in court for a testimony results to one being charged with what is referred to as contempt of court, which is subject to criminal or civil penalties. Consequently, when someone is issued the legal paper and fails to appear before the court, an instanter, who is a law enforcement officer, will force him or her to appear before the proceedings.
An individual ordered to appear for a proceeding must be served with a court subpoena. The process of serving persons with a court subpoena, in some states, is done through a law enforcement officer while other states allow the service to be done by mail or through a telephone call. Typically, this task is mainly carried out by process servers and it requires one to affirm to an attorney that he or she will appear on the specified date to give a testimony. However, if the document is not properly issued or is not served at all, he or she shouldn’t necessarily appear.
Normally, the burden of requesting for subpoenas lie entirely on the attorneys involved in a lawsuit. The document gives details on the name of the person summoned to appear for a testimony, the place and time of the hearing, and the name of the legal proceedings.
Another variant of subpoena definition is seen in what is referred to as deposition subpoena. It is a court subpoena that is issued to notify a person about appearing and making a sworn statement away from trial. Usually, this is done before a trial. To better define subpoena in regards to deposition, the terms subpoenaing party and deponent need to be understood.
A subpoenaing party refers to the entity or individual that gives notice of the appearance while the witness required to give a testimony is referred to as a deponent. As is the case with the typical subpoenas, the individual required to give the testimony is given sufficient time to respond. A deposition subpoena is also issued by the court or an attorney of the lawsuit and is delivered by servers on the named department, individual or office.
Difference Between a Subpoena and a Summon
There is a clear difference between a subpoena and a summon. A summons is delivered by process servers to defendants, letting them know of a pending case while a subpoena is served to individuals as an order for a witness to make an appearance in court.
Another difference between a subpoena and a summon is that the first term is not optional as is the case with a defendant in a civil case. It is also served on a witness unlike summonses, which are served on an individual or a party to the case.
There are other documents that process servers deliver apart from subpoenas and summonses. They include:
Writs – formal typed orders issued by courts or other bodies with judicial or administrative jurisdiction. They are used to direct an individual or a party to do or not to do something. A writ may also serve to direct other public authorities or courts to take a specific action and it includes documents like habeas corpus, mandamus, prohibition, certiorari among others.
Complaints – it is a legal document served to an individual explaining why he or she is being sued, what the claim is as well as any other significant detail involved in the lawsuit.
A process, in general terms, is a document, whether a writ, a summons, a complaint or any other legal paper through which a lawsuit is commenced and the court asserts jurisdiction over the controversy and a party. The way in which the documents are delivered to involved parties is referred to as process service and is carried out by process servers.
Notice is a concept critical to the integrity of any legal proceeding and no case or lawsuit can take place without one being informed that there is a legal action against them. Normally, a special appearance is made to purposely challenge the adequacy of the service before the courts can establish the presence of a jurisdiction over the defendant.
Methods of Service
Process servers carry out their tasks in three basic methods:
Personal or Actual Service
Personal service is often the most preferred way of delivering court documents to defendants. It is carried out by servers or anyone who is not a party to the case, and it involves delivering the papers individually. The server gives the documents to a defendant’s home, place of work or anywhere they meet. He or she must identify the person to be served and hand the papers directly to them and at the same time inform them what they are about.
Sometimes, the process is faced with challenges as the party may deliberately refuse to take them. However, it would make sense if the server placed the documents wherever he or she deems fit provided the defendant has been made aware of them. Personal service is highly effective because it sometimes offers the defendant no chance of denying its legality.
Any other method used to deliver a process that is not actual or personal is referred to as a substituted service. How substituted service is carried out depends on various state jurisdictions, although all are served with the intent of informing the defendant of everything there is to know about a lawsuit or all the proceedings. This method is also used when the personal delivery fails.
Should the server not find the defendant at home, after several attempts, many states allow him or her to leave the papers with anyone living there, who is at least 18 years of age. This person must understand well the responsibility of accepting the service. Similarly, if a server was delivering the papers to a party at their workplace and fails to find them, he or she can leave them with an office assistant or any employee who will deliver them.
Other states also permit servers to affix the summons or other documents to the defendant’s homes or their place of business and afterwards mailing them a copy of the documents. This is known to some as nail and mail. Proof of service by mail for this type of service is required.
Substituted service may also involve mailing the defendant the necessary documents through a registered address, which often requires their email address. The method is also applicable if the server posts the documents to the defendant’s home at issue in the eviction and also following it up by a mail. A landlord, through a court’s permission, may serve his or her tenant through posting and mailing. Like in nail and mail, proof of service by mail is mandatory.
The process of serving may also be done by publishing a notice in newspapers. This type of serving is often referred to as constructive service. The court, after the publication, construes that the notice is effective regardless of whether the party involved reads it or not. Publication service, when the plaintiff proves that there is no other way of effecting the service, is allowed by leave of court. However, the publication must be made in at least one paper of general circulation where the court is located or where the defendant could possibly be found, or even in both places. Basically, the notice must be availed in the newspaper weeks before the proceedings and once every week.
In truth, many people can’t answer ‘what does subpoena mean’ or possibly know what a summon means. Courts know this, but even if that is the case, effort must be made to reach the defendant by any means necessary. If personal and substituted services have all failed, the other viable and legal option is publication. However, this method is often more expensive than other methods, and often, the courts may come to realize that the party could have simply been notified personally. As a result, plaintiffs prefer not to rely on publications.
Areas Served by Process Servers
Any area covered by the court, an authority or a jurisdiction often gets serviced by process servers. Whenever the service itself is the basis of the lawsuit, then it is mandatory for the service to be carried out within the state. Services made within the county or where the court is located are often made for lower level courts. Trial courts that deal with overall jurisdictions permit process servicing anywhere in the state. Similarly, process servers may be required to serve anywhere within the state or anywhere surrounding the state provided its distance is not more than hundred miles from where the court sits.
There are also court jurisdictions permitted by statutes for people who are not physically present within a state that involves the exercise of authority over them. These statutes, referred to as Long-arm statutes, gives specifications other than where a defendant is located, like conducting business or being involved in an accident within the state. However, these factors are subject to legal processes outside the state for the service in itself is not the primary reason for a court jurisdiction.
Forms of service that may be effected to a defendant who falls within the long-arm state jurisdiction include substituted and constructive services. For example, if an out-of-state resident was involved in an accident and the plaintiff wants him or her to be served, many state jurisdictions will permit them to do so. It should, however, be done by following a legal process through the office of the attorney general of the home-state, and also by sending copies to the party at his or her residence. In this case, the attorney general is made the agent of the service. The statute solely relies on the theory that the driver nonresident, by using the facilities and the highway within the state, has consented to the method of service.
Time of Process Service
The service time is dependent on the jurisdictions of the law. The service should be carried out within the stipulated time by the statutes of limitations for commencing the task. In many states, however, substituted or actual delivery on Sundays has been prohibited. Public holidays serving is also out of the question is some states.
Process Server Near Me
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