Four Common Process Service Mistakes with Major Consequences

Process service is a legal procedure in which the courts require hiring the services of a professional process server. These individuals help ensure that all parties facing legal action against them receive their summons to court, and a copy of the plaintiff’s complaint, regardless of whether it’s an administrative court or court of law. The documents are collectively known as ‘process,’ and can’t be mailed to the defendant. 

The Role of A Process Server 

Simply put, the process server’s primary role is to ‘serve’ or deliver the documents to a subpoenaed person to inform them about the whereabouts of why and when they need to appear in court. It includes information about: 

• which tribunal or court the legal action will take place, such as the Small Claims Court, Family Court, or the Civil Court, 
• the deadlines to be met for responding,
• and the statements or claims made by the opposing party. 

Why Does One Have to ‘Serve’ Legal Paperwork? 

According to the Constitution of the United States, no person shall be ‘…deprived of liberty, property, or life without due process of law…’ This means that every citizen has the right to be informed if they’re being summoned. 

Legally appropriate process documents must generally be served or delivered by a person who is over the age of 18 but the jurisdiction may differ depending on the rules of court, type of documents, and other factors. The documents should be delivered directly to the subpoenaed person or left with a suitable individual either at their place of business or home. 

An Affidavit of Service also needs to be notarized and provided to the company or individual who hired the process server, as an evidence that the papers were successfully served. Some people, especially in smaller towns, give the job of delivering the papers to sheriffs, however it can become an issue if they’re busy with other matters pertaining to the public. 

Hiring process servers is way more feasible and efficient because, while the due process may sound simple, it often requires knowledge of provincial guidelines, time, and due diligence on the part of a process server. If the process server you hired makes a mistake, it can often lead to a mistrial and sometimes even case dismissal. This is why it’s important that you only hire professional process servers from a reputable process serving company, such as Elite Legal Services of NY Inc., that regularly train their process servers on rules, best practices, documentation and more. 

What Happens If a Summons Is Improperly Served or Not Served at All? 

Legal notices are essential because they inform all parties about what they’re required to do and allow them to prepare for the court hearing properly. Preparations can include compiling the required legal documentation, hiring lawyers, and more.  However, before jumping into the grave consequences of what might happen if an amateur process server fails to deliver the documents properly, let’s look at a few common mistakes made during the serving process. 

Mistake #1: Serving the Wrong Person 

While this may seem absurd, it does happen a lot! Sometimes, process servers confuse a person with a similar name as that of an intended defendant. At other times, they might attempt to deliver to a person who has passed away or to an outdated address. However, all scenarios that lead to mistaken identity can seriously jeopardize the case.

If the legal documents are served to the wrong individual, the opposing counsel can easily contest the service and demand the case be started all over again. In fact, in some instances, it also leads to the forfeiting of any prior judgements that may have been ruled in your favor. This mounts colossal pressure on legal teams because they have to cave in on such grounds. 

If the process service is successful, you can rest assured that all important documentation is in place and has been delivered to the correct (and alive) recipient. Hence, the process delivery step is critical, and shouldn’t be taken lightly if the plaintiff wants all other legal procedures to kick off smoothly. 

Mistake #2: Failing to Verify the Delivery 

The world is full of dishonest people; this is precisely why the process servers should always verify the identity of the individual they’re handling the process documents to. Process servers sometimes don’t make visual contact or cross check the person’s identity to confirm whether they’ve in fact served the rightful recipient in a timely manner. 

This is why an Affidavit of Service has to be filed by an experienced process server so that it can act as a proof that the documents were delivered within the stipulated time frame to the right individual. Many novice process servers often ignore or forget to notarize the Affidavit of Service without realizing that omitting this critical step could be used by the opposing counsel as a ground to claim incorrect or incomplete delivery.  

Sometimes field notes are also as essential as the Affidavit of Service because service can sometimes be potentially contested as long as a year after the completion of the service. In such cases, the processers often forget the details about the serve if they don’t maintain credible records that prove that the individual was served appropriately. A professional process server typically takes notes to substantiate the claims. 

Mistake #3 Disclosing to The Respondent or Defendant That They’re About to Get ‘Served” 

As an applicant or claimant, if you make the mistake of disclosing the impending process service to the defendant, it can lead to them evading the scene to avoid getting served. Such playful antics, such as ignoring the calls to answer their door or not showing up at work, will make the service process more expensive and challenging for the process service company. 

If you think it’s obvious that information regarding impending service should never be disclosed, you should know that many people often like to boast about how they have succeeded in getting the complaint or application through. They don’t comprehend that process service is equally important for the legal process to move forward. 

Mistake #4: Not Preparing the Process Server 

Even the most experienced process servers can benefit from some kind of guidance. For instance, if you’re aware that a person is hostile or is likely to evade service, it’s important that you inform the server beforehand. 

If you know about the recipient’s location, schedule, upcoming vacation or work trips, parking space, or any other information, pass it on to the process server. Disclosing such information without tipping them off often helps increase the chances of finding them at the very first attempt.

What might happen if a summons is improperly served or not served at all? To begin with, the court usually doesn’t proceed with the case until it’s satisfied that all concerned parties have received proper and adequate notice, and they were able to take the necessary actions to protect their rights. However, if the legal notice is improperly served, it might result in: 

• Additional court charges or costs  
• A delay in your case
• Relinquishing, overturning, revoking, or invalidation of an already passed order by the court which might have been in your favor.
• The court ordering you to re-serve or re-publish the legal notice. 

What If the Defendant Can’t Be Reached? 

There have been several instances where the petitioner is unable to reach the defendant, sue to a change of address or many other reasons. But that doesn’t nullify the need to serve the notice. In such cases, you generally have two options.

First: Serve A Notice by Publication

This option allows the plaintiffs to run a legal ad in the local newspaper or other appropriate mediums, announcing that the defendant is being ‘served’ in so and so case. Such service, however, is usually limited to only certain types of court cases, and if you don’t hire an experienced, proficient lawyer, it can cause some legal issues down the road. 

The petitioner will also need to provide satisfactory proof to the court regarding all the reasonable and proper steps taken to reach, locate, or personally serve the defendant, and why they didn’t work.  This is primarily why a notice by publication is usually the last resort in most court cases. 

Second: Hiring Professional Process Servers from A Reputable Process Serving Company 

Hiring a professional process server helps ensure that the document delivery and retrieval are completed successfully on the behalf of the litigant. Process serving takes a lot of dedication as well as compliance with the law. Our process servers at  Elite Legal Services of NY Inc. do their best to ensure the notice is served promptly, so that you have the evidence to defend yourself in the court. 

Our process servers are regularly trained so that our clients can get the peace of mind that the court papers were served efficiently. They can also perform skip traces by using surveillance techniques and technology to track down the defendants. 

If you need to serve someone court papers, get in touch with us now. From civil summons and complaints to divorce summons papers, and more, we offer reliable and affordable same-day process services to individuals and law firms in New York.