Process serving is a crucial part of the American justice system. Without the process server’s role of notifying involved parties of pending legal actions, there would be no Due Process of Law. While it is important to be sure papers are served in a timely and efficient manner, the process is not without its risks and hazards.
Some parties, of course, do not want to be served at all, and this leads to legal questions of what a process server can and cannot do. Sometimes the server is faced with the question of whether to enter private property, and some process servers have been hurt on the job in physical altercations. In some cases, the process server or the agency itself become the target of a lawsuit due to questionable procedures. The business should have a comprehensive insurance policy in place to cover all these contingencies, but also needs to minimize risk on all fronts in order to maximize insurance coverage.
Lessons Learned from Poor Processes
Court dockets and newspapers are full of examples where the sufficiency of process is called into question, as well as the actions of the process server. Here are some examples where poor processes caught the attention of law enforcement:
- Bradley v. Deloria: This case was held to decide what constitutes valid service of process on an enrolled tribal member on the Crow Creek Indian reservation in South Dakota. The case was dismissed due to insufficient service because the process server was without authority to serve outside of Brookings County. This supports the fact that process servers must be aware of their jurisdiction to serve at all times, or face losing the case.
- Knox Judges Crack Down on Private Process Servers: Citing rogue process servers who illegally harass people, Knox County judges moved to exert greater control over civilians who serve civil court papers and directed that the work go exclusively through the local Sheriff’s Office. The action was prompted by an incident involving an “unscrupulous, unidentifiable private process server who harassed and scared someone in the middle of the night.” Moving forward, the courts may allow private process servers to do the work, but they will have to apply through a special procedure to receive approval. This highlights the fact that process servers cannot use illegal or unethical tactics in presenting papers.
- Failure to Serve: In 2014 the Minnesota Attorney General filed a lawsuit against a Minnesota process serving company and one of its process servers for falsely claiming that some individuals were served with debt collection lawsuits. The process server went so far as to falsify a proof of service form to indicate that a lawsuit was served on a person at their home address, when the person was not home or did not even reside at that address. Process servers are held to high standards and are expected to carry out their duties in a professional manner.
These actions might have been avoided with stricter adherence to professional standards. The involved businesses might have held sufficient insurance at the time to help deal with these issues, but it will certainly make obtaining comprehensive coverage for themselves and fellow practitioners more difficult in the future.
Best Practices in Process Serving
Here are some tried and true guidelines to keep process servers safe and minimize risk for process serving companies:
- Process serving rules are specific to the state and sometimes to the jurisdiction: Process server rules are different in every state, and services must be provided in accordance with local guidelines. In some states, it may be illegal to serve on Sundays and holidays, or after a certain time of night. However, if the court venue is in a different state, service is usually provided according to the state of origin.
- Fully complete service and provide true authentication: Court documents must be personally delivered by someone who is not a party to the case. This may be accomplished at the party’s home, place of business, or anywhere on the street, but the server must identify the party being served, hand over the papers and inform that person that they have received court papers. The party might not take the papers, in which case they can be left on the ground. If the party tears up the papers, service is still considered to be valid. Keep accurate notes to detail when, where and how papers were served, and provide a verifiable proof of service. Failure to follow any of these steps might result in the service being deemed incomplete.
- Avoid illegal tactics: While some states actually allow trespassing, breaking and entering a home or business to serve process is illegal. The process server has to return at a later time to try to find the defendant. Servers cannot pretend to be law enforcement personnel to compel a party to open a door. While a process server may perform a stakeout to wait for the opportunity to serve papers, they cannot obtain information illegally to do so. Leaving papers with someone else, who is over the age of 18, will only count as service if the document allows this procedure of the judge signs a special court order.
- Don’t touch the mailbox: Process servers cannot open a mailbox, meddle with mail, or go through a stack of mail, even if it is in full view. Process servers are only allowed to visually see by eye an address that is in plain sight.
The right insurance, provided by a knowledgeable insurance agency, can ease the stress of being in the high-risk job of process serving. The best way to receive the best rates and widest coverage is to be aware of best practices in the industry. El Dorado Insurance Agency, Inc. is celebrating over 50 years as a reliable leader in the small business insurance industry. Call us today at 800-221-3386 to receive a free quote or visit our Application Center to apply for process server insurance.
