Process serving is the most important part of any litigation. Process serving accomplishes three basic functions: it puts a party on notice that he is being sued civilly or charged with a crime, it tells the party who is suing him or gives a party notification as to what law enforcement agency is pressing criminal charges, and it tells a party when and where he must appear in court. Without successful process serving there can be no trial, the opposing party will not know that they are being sued or charged with a crime.
The Federal Government and each of the fifty states have its own rules regarding what effectuates successful service of process. Federally, service of process is governed by the Federal Rules of Civil Procedure, while each state’s rules are delineated in its individual state code. In Federal litigation, the Federal Rules of Civil Procedure applies, in a state courtroom, the state’s rules of civil procedure applies. The Federal Rules of Civil Procedure are not always mirrored in each state court, but most states use them as a guideline.
Service of process begins when a plaintiff or law enforcement agency issues a summons, either through the use of a court issued form or through an attorney. A process server then takes the summons and gives it to the party subject to litigation, notifying the party of pending litigation against him. Criminal charges are served by law enforcement; civil charges can be served by a local Sheriff’s Department or a private process server.
Private process servers often specialize in finding parties who are attempting to avoid civil litigation through deliberately avoiding a summons or where speed is of the essence in serving an opposing party.
There are three basic ways in which process serving is completed. The best and most obvious way is personal service. When the summons is placed into the hands of the person subject to the litigation or someone acting as his agent, notice has been satisfied. Personal service subjects the opposing party to the harsh remedy of a default judgment if he misses court. Courts rationalize that the party knew to be in court and chose not to, it then will enter judgment for the Plaintiff.
The second method is sometimes referred to as “posting”. This is where the party to be served is not present at the address listed on the summons. The “posting” occurs when the summons is left taped to a location where the party will clearly see it. If the party has moved, is away from the address for an extended period of time, or testifies at a later date that he never received the summons, then the court will often set aside a default judgment rendered in the party’s absence.
The third method is notice by publication. If the party to be served cannot be found, some courts allow notice to be placed in a publication widely circulated within the jurisdiction where the litigation is to occur or by posting notice in a public place, such as the front of the court house in which the litigation is to occur. Rules on notice by publication vary in each state.
Proper service of process is often subject to time constraints. Several states require that in a civil suit the opposing party be served within six months of a complaint being filed by the plaintiff. Due to each state and the Federal Government having its own rules of court, it is always advisable to seek out legal advice from a well-qualified professional to handle service of process situations when they arise.