Service Of Process Rules Are Stuck In The Stone Age

Service of process rules are vestiges of the past, and oftentimes do not account for how many people do business in the present.

You’ve been served! (Image via Getty)

Many attorneys understand that some practices within the legal arena are pretty antiquated.  Of course, American attorneys do not use powdered wigs like our British counterparts, and I have only once heard an adversary call me a “brother of the bar” while arguing a motion.  However, the language used in many court documents, and some legal practices, are definitely holdovers from a different era.  Rules surrounding service of process are especially antiquated and don’t seem appropriate for our modern world.

I recently opened my own law firm, and as a result, I have had to deal personally with service of process for the first time.  At my prior firms, a secretary or paralegal usually took care of service, but I have handled this task all on my own since hanging my own shingle.  I was generally aware of service of process prior to opening my own shop.  I kind of thought that service of process was similar to what was depicted in movies like “Pineapple Express” or on some shows that I used to watch on TruTV.

In reality, however, service of process is a lot duller than what is depicted in the media.  Since corporations typically have registered agents that are served, there is no huge confrontation or someone yelling “you’ve been served!” most of the time during service of process.  In addition, a number of vendors make it easy to quickly serve process on people across the country, so there is usually no massive manhunt that is conducted prior to serving process.  However, the entire service of process system seems antiquated and harkens back to a time when people did not have instantaneous methods to be notified about major matters.

I can understand why service of process by personal service made sense decades ago.  Years in the past, it was extremely difficult for a party to be notified about a lawsuit without personally receiving the news.  In addition, it was much more difficult to obtain information years ago, and the only way that a party could assuredly receive copies of important legal documents was to personally serve them with papers.

Of course, people decades ago and in the present could always be reached by mail.  However, serving people through the mail risks the possibility that a person no longer lives at a given address.  It is very difficult to confirm before mailing whether an address is current, so in a system in which personal service and service by mail are the only options, personal service is preferable.

However, we do not live in the same world that existed when service of process norms were established.  Most people now get notifications through email or through social media networks.  In addition, notification through these means offers a number of benefits over personally serving people or sending documents through the mail.  Indeed, sending a notification through a number of electronic means often allows the sender to confirm that the receiver has received the notice.  In addition, paper is so 20th century, and most people today read documents online rather than review materials in hard copy.  It is also usually much easier to send notifications through electronic means than to track individuals down to personally serve them with documents.

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Many courts have allowed individuals to effectuate service of process through email and other electronic means.  Most states have rules that allow courts to issue orders holding that alternate methods of service can be employed when traditional methods cannot be used for a number of reasons.  For instance, if a party is overseas or cannot be located, courts have allowed attorneys to simply attach process to an email and send it to a verified email address of the person to be served.

However, this type of service should be the norm rather than the exception.  Courts have updated their rules on a number of occasions to adapt to modern times.  Indeed, many courts have rules regarding electronic discovery and other matters that courts did not have to deal with a few decades ago.  Authorities should similarly take a look into service of process rules to see if these requirements should change to adapt to the way people do business in the present.

Of course, there are massive industries that will likely do everything in their power to resist changes to service of process rules.  Requiring parties to physically serve process keeps many people employed, and anyone who has had to serve every defendant in a case with a huge caption knows that service of process companies must rake in serious amounts of money.  In addition, service of process rules are also subject to the requirements of due process, so any changes in these standards would likely be reviewed by the courts.

However, service of process rules are vestiges of the past, and oftentimes do not account for how many people do business in the present.  Changes should be made so that parties can serve process through electronic means, since this is how most people get important notifications anyways.


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Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jrothman@rothmanlawyer.com.