The Legal Rights of Individuals When Being Served

If you are someone who has just been served for the first time, understanding the service of legal documents has just become a necessity for you. But what exactly does that mean?

Being served refers to the formal process of delivering legal documents that notify you of your involvement in a legal matter. These papers could summon you to court, inform you of a lawsuit, or serve as official notification of legal proceedings in which you are a party. Once initiated, the procedure must be followed through by both the Process Server and the person being served. Let’s consider what you should and should not do when serving legal papers or receiving them.

Common Types of Legal Documents Served

Being served can mean receiving various types of legal paperwork, each with different implications. Some of the most common include:

• Subpoenas: These compel individuals to testify in court or provide evidence. They may also require the production of documents or other items relevant to a case.
• Divorce Papers: These initiate or finalize divorce proceedings and often include details about asset division, child custody, and spousal support.
• Restraining Orders: Issued by a court to protect individuals from harm or harassment, these typically prohibit contact or other specific actions.
• Civil Actions: The summons notifies the recipient that they are being sued, while the complaint outlines the claims against them and the basis for the lawsuit.
• Notices: These provide legal communication regarding court dates, contract changes, or pending actions that require attention.
• Writs: Formal court orders that command or prohibit specific actions, such as paying a debt or appearing in court.

Why Might Someone Be Served?

Being served is not always expected, and understanding why it happens can help individuals navigate the situation. Some of the most common reasons include:

• Divorce or Family Court Matters: Divorce, child custody, and spousal support often require legal notices to be formally delivered.
• Debt Collection: If a creditor or collection agency initiates legal action, they must serve notice regarding repayment terms and potential consequences.
• Civil Lawsuits: Legal disputes between individuals or businesses require formal notification of the lawsuit.
• Landlord-Tenant Disputes: Eviction proceedings or other rental disagreements often involve the legal service of documents.
• Probate and Estate Matters: If an individual is named in a will or estate proceeding, they may be served papers detailing their rights and responsibilities.
• Business and Contractual Disputes: Legal action over breached contracts or other business disagreements typically involves serving legal notices.

Understanding what it means to be served and why it happens is the first step in knowing how to respond. In the next section, we will explore how legal service must be conducted, including the Process Server’s responsibilities and the recipient’s rights.

How Legal Service Must Be Conducted

Once an individual understands what it means to be served, the next crucial question is: how must the service of legal documents be conducted? The process is not arbitrary; it follows strict legal guidelines to ensure fairness and due process.

Who Can Serve Legal Papers?

Legal papers are not delivered by just anyone. In most jurisdictions, a Process Server, Sheriff, law enforcement officer, or court-appointed individual carries out this duty. A Process Server is a neutral third party whose role is to ensure that legal documents are properly delivered according to legal requirements.

Methods of Legal Service

The law generally dictates how legal papers must be served. Some of the primary methods include:

• Personal Service: The Process Server hands the documents directly to the individual being served. This is the most reliable and commonly required method.
• Substituted Service: If the recipient is unavailable, papers may be left with another responsible adult at their residence or business, depending on jurisdictional rules.
• Service by Mail: In some cases, legal documents may be sent via certified mail and with a return receipt (a service that provides proof that mail has been delivered to a recipient).
• Service by Posing the Premise: A court may permit notice to be attached to the residence or business by the Process Server.
• Service by Publication: A court may permit notice to be published in a newspaper if the individual cannot be located after reasonable attempts.

Rights of the Individual Being Served

Just as the Process Server has responsibilities, the recipient of legal papers has rights. These include:

• Right to Know Why They Are Being Served: The papers must clearly outline the reason for service and any required response.
• Right to Verify Legitimacy: If there is doubt about the authenticity of the documents, the recipient has the right to contact the court or legal authority listed in the paperwork.
• Right to Avoid Forced Acceptance: Although a Process Server may attempt to hand over documents, individuals are generally not required to physically accept them. However, refusal does not necessarily prevent legal proceedings from continuing.

What You Should (And Should Not) Do After Being Served

Being served legal documents can be overwhelming, but knowing how to respond is essential. There are clear steps to take and mistakes to avoid to ensure the best possible outcome.

What You Should Do:

• Read the Documents Carefully: Take the time to thoroughly read through the documents you have been served. Understanding what they say is crucial for knowing what steps to take next.
• Take Note of Important Dates: Pay close attention to any deadlines or dates mentioned in the documents. Missing deadlines could have serious consequences, so note when you must respond or appear in court.
• Seek Legal Advice: If you are unsure about what the documents mean or what your next steps should be, do not hesitate to seek advice from a qualified legal professional. They can help clarify any questions and guide you on how to proceed.
• Keep Records: Make copies of all the documents you have been served and keep them safe. Organized records will be helpful as you navigate through the legal process.
• Stay Calm: Being served can be stressful, but try to remain calm and composed. Panicking or ignoring the situation will not make it disappear, so focus on taking the necessary steps to address it.

What You Should Not Do:

• Assault the Server
• Ignore the Documents: Ignoring the documents will not make the legal issue disappear. Failing to respond or take action could result in a default judgment being entered against you.
• Discuss the Case Publicly: Avoid discussing the case details with anyone other than your lawyer. Anything you say could be used against you, so it is best to keep discussions about the case private.
• Destroy or Alter Documents: Tampering with or destroying legal documents is illegal and could result in serious consequences. Always keep the documents intact and avoid making any changes to them.
• Miss Deadlines: As mentioned earlier, missing deadlines can have serious repercussions. Note any deadlines mentioned in the documents and take action before they expire.
• Take Legal Advice from Non-Professionals: While friends and family may have good intentions, you should only rely on legal advice from qualified legal professionals. They have the knowledge and expertise to provide accurate guidance tailored to your situation.

How to Serve Someone Court Papers

Although you can complete and file a lawsuit without assistance, you cannot personally serve the court papers. You must ask or hire someone over 18 years of age who is not involved in the suit to handle the service of process.

Who Must Be Served Court Papers

All defendants on the plaintiff’s claim, or all plaintiffs on the defendant’s claim, must be served. Serving one party and assuming they will inform others is insufficient, even if the individuals are married, live together, or conduct business together.

Methods of Serving Legal Documents

Personal Service:A sheriff, marshal, constable, private Process Server, or any disinterested adult over 18 can deliver papers. Some states require court approval for private individuals serving documents.

Finding a Process Server: Since some sheriff’s offices no longer handle process serving, individuals may need to hire a private company. To avoid unreliable services, you should verify business credentials, ask for recommendations from attorneys, or check with the small claims court clerk.

Can You Be Served by Mail?

Many jurisdictions recognize mail service as a legitimate way to deliver legal documents, but the rules vary by state. Courts often prefer this method for its efficiency and affordability, though it must meet specific requirements to be valid. The following sections outline some common approaches:

Serving Someone by Certified Mail

Many states allow the service of legal papers by certified mail with a return receipt requested. Some require attempting this method before other means. The court clerk often handles the mailing for a small fee, which may be recoverable in a judgment. In most states, the defendant must acknowledge receipt of the letter for service to be considered valid. A few states accept service even if the recipient refuses to sign.

Substituted Service (“Nail and Mail”)

If a defendant is difficult to locate, some states allow substituted service. This involves leaving a copy at their residence or workplace and mailing another copy. Service is typically considered complete ten days after mailing.

In a typical state, substituted service works like this:

1. Small claims papers may be served by an adult (not named in the lawsuit) by leaving a copy at the person’s dwelling in the presence of a competent adult household member. Alternatively, service papers may be left at the person’s workplace during regular business hours with the person in charge (who must be told what the papers are about).
2. In both cases, a copy of the papers must be mailed to the defendant by first-class mail on the same day.

Service is complete ten days after mailing. Be sure that an adult not named in the lawsuit is carrying out all steps, including mailing the extra copy.

Serving Someone in the Military

Active-duty military members have legal protections against default judgments. Courts require a declaration of nonmilitary status before proceeding with a default judgment against an absent defendant.

Serving Someone with a Post Office Box

A post office box is not sufficient for the service of legal papers. You must also locate a street address. To do this, you can provide the post office with a written statement explaining that you need the address solely to serve legal papers in a pending lawsuit.

Proving Proper Service – Proof of Service

Once legal documents have been served, proof of service must be provided to the court. This ensures that all parties are aware of the proceedings and that legal actions can move forward without delay.

Filing a Proof of Service or Affidavit of Service

No additional action is needed if the court clerk handles service by certified mail. The signed return receipt acts as proof. However, when service is completed by personal delivery, substituted service, or first-class mail, a Proof of Service form must be filled out and filed with the court clerk.

Who Signs the Proof of Service or Affidavit of Service?

The person who performed the service must sign the Proof of Service form. This applies to both plaintiffs and defendants when filing claims. The completed form must then be returned to the clerk’s office to officially document the service.

Why You Should Not Avoid Being Served

Movies and television often portray Process Servers using creative disguises to deliver papers. Many individuals try to avoid service by refusing to answer the door, pretending to be someone else, or hiding. While this might prevent immediate personal service, it does not stop legal proceedings from moving forward.

Consequences of Avoiding Service

• Default Judgments: If you ignore service, the court may allow the case to proceed without your input, potentially resulting in a judgment against you.
• Increased Legal Costs: Additional fees may be charged for multiple attempts at service, and courts may impose fines for avoiding legal notifications.
• Alternative Service Methods: Courts allow alternative service methods, such as “nail and mail” or service by publication, to ensure the case moves forward despite avoidance tactics.

Actual Knowledge of Legal Proceedings

Courts prioritize actual knowledge over physical service. If a defendant is aware of legal proceedings but avoids service, courts may still proceed with the case. Due process does not provide an escape from legal responsibility.

Understanding the proof of service process ensures compliance with legal requirements and prevents unnecessary complications.

The Cost of Investigation and Skip Tracing

Avoiding service can be costly: defendants who evade service of process may think they are delaying legal proceedings, but they often face significant additional costs. One of the primary expenses incurred due to evasive behavior is the cost of investigation and skip tracing, which courts may require the defendant to pay if they are found to have deliberately avoided service.

What Is Skip Tracing?

Skip tracing is an investigative technique to locate individuals who cannot be found at their last known residence or place of business. Originally, skip tracing involved making phone calls and visiting known addresses, but modern technology has made the process much more advanced and effective.

Tools Used in Skip Tracing

Investigators now have access to a variety of technological resources to track down individuals, including:

• Digital phone number databases, such as the “Switchboard Nationwide Residential and Business Directory.”
• Auto records locators, including databases maintained by the National Independent Automobile Dealers Association (NIADA).
• GPS data can be used to track locations through digital records.
• Credit bureau records can provide addresses and financial information.
• Social media activity can reveal an individual’s location and movements.

The Cost of Skip Tracing

While skip tracing techniques have made it more difficult to evade lawsuits, they come at a substantial cost. Labor-intensive investigations, along with the use of specialized databases and tracking tools, can get expensive quickly. Courts often hold individuals responsible for these additional costs if they are found to have deliberately avoided service.

Avoiding service rarely benefits a defendant in the long run. Instead, it often increases costs, legal disadvantages, and additional court scrutiny. In the next section, we will explore what happens when individuals ignore served legal documents and how it can impact a case’s outcome.

Defendants That Avoid Being Served Risk Forfeiting Their Rights

The most compelling reason not to evade the service of legal documents is that doing so can result in forfeiting legal rights, which may lead to consequences more severe than the lawsuit itself. While a defendant might believe they have avoided legal action, the case may, in fact, proceed without their knowledge.

Defendants who believe avoiding personal service will prevent a case from progressing are mistaken. As previously discussed, courts allow multiple methods of service to ensure legal proceedings continue, including:

• Substituted Service: Leaving papers with a competent adult at the defendant’s home or workplace.
• Posting and Mailing: Attaching documents to a residence or business and mailing a copy.
• Service by Publication: Publishing notice of the lawsuit in a legal newspaper.

Courts operate under the principle that actual knowledge of a legal proceeding satisfies due process requirements. This means that even if a defendant avoids direct service, the court can proceed if evidence suggests they are aware of the lawsuit.

Instead of avoiding service, defendants are better off utilizing their resources to challenge or defend the legal action against them. Attempting to hide can lead to longer, more expensive litigation and increased financial liability.

Benefits Vs. Risks of Avoiding Service

A defendant’s best course of action is always to respond promptly and participate in all legal proceedings. This approach allows them to present a defense, negotiate settlements, or even seek dismissal of the case. Ignoring legal documents only worsens the potential consequences.

By recognizing these risks, individuals can make more informed choices about how to proceed. While legal matters can be daunting, being proactive in addressing them provides an opportunity to protect one’s rights, seek appropriate counsel, and engage in fair proceedings. Taking the proper steps early on can help avoid unexpected legal and financial burdens while also ensuring the individual a voice in the process.