Did you Get Proper Proof of Service

Did You Get Proper Proof of Service?

What does a process server cost you? Sometimes it is a lot more than you bargained for. An improper service of process can cost you valuable time, your reputation, your firm or sometimes millions of dollars. These are all reasons to deal with only reputable process servers and to make sure that all the paperwork is done correctly.

Some think that this problem with service of process is a new phenomenon. I am sorry to say that it is not. Just like every profession, there are those that choose to do it right, no matter what the cost and those that choose to cut corners in hopes of saving a few pennies.

The proof of service is the process server’s part of the justice system. It is depended upon by the clients, attorneys and the courts to be done correctly. It is the culmination of a series of events that lead to a case being filed. If the integrity of the proof of service comes into question, then the efforts of all those involved in preparing the case also comes into question. So, the process server not only hurts their own reputation, they hurt the reputation of all those involved in the case preparation.

In a recent case in California, a US District Court Judge set aside a 7.7 million dollar default judgment because the proof of service was not signed by the server. Instead, the Court determined that an attorney service firm had signed the affidavit instead of the server.

The Court found that a proof of service signed on behalf of another is not the best evidence of proper service. Imagine having to go to your client and tell them that instead of 7.7 million dollars, that they already had a default judgment for, they were going to get nothing.

While the server and the attorney service company faced possible criminal prosecution for perjury and forgery, the attorney had little recourse on behalf of his clients.

The second interesting part of this case was the Court’s attempt to ascertain is the service was done properly. Absent the validly signed proof of service, the Court chose to question the server whose signature had been forged. While on the witness stand, the server could not produce the work order, her service notes, or any other paperwork that may have assisted the Court in their search for the truth. So, not only had the proof of service been forged, but the process server herself could not honestly say or provide any evidence that the original summons had been served.

While this is an extreme example, in South Florida, some servers are well known for “canal services.” This term is used for servers when a server would throw legal papers in the canal instead of serving them. Unfortunately, Florida and California are not the only two states that have such a problem. In New York they call them “sewer services” and in Illinois the call them “lake services.” So as you can see, there are servers throughout the country that choose cut corners, in hopes they don’t get caught.

I was recently in a negotiation with a large insurance carrier to provide subpoena service throughout our State. We looked at the number of papers, the locations that the majority of the papers would be served in and the time, mileage and salaries that would be expended in making proper service and giving proper customer service. We came up with a price, which was bare bones. Less than the Sheriff charges.

At the end of the negotiation, they told us they found a small process server that would do the job for half the price and gave us a chance to match the price.
We refused to match the price, because we knew that within a few months, the insurance company would be back asking us to clean up the mess.

What the insurance company did not factor in to their decision was service and integrity. The firm they chose has been banned from every major association because of their lack of work ethic. They are known for losing papers, not returning affidavits of service and billing for second and third addresses when the paper was served at the first address.

So the “cost” of serving the subpoenas will not be the quoted price. You will have to add in all the soft cost for lost documents and status checks and the fraudulent 2nd and 3rd addresses. Once that is calculated and once they get hit with default judgments because of missing documents and improper service, they will realize exactly how much their chosen process server really cost them.

So, as you can see, not all the blame can sit on the shoulders of the process server. As large firms look for ways to save their clients money, they fail to do proper due diligence before hiring a process server. They put their reputation on the line with the lowest bidder or someone they got out of the phone book.

Some attorneys have chosen to hire attorney servicing companies as a way to save money. This in itself is not bad, however before doing this; you need to check out the company. Many attorney servicing companies are not process servers. They contract with individual servers to represent them in different jurisdictions. Again, this may not in itself be bad, but if they are contracting totally on price, then it is you who may get burnt in the long run. Just as you need to check out the individual process servers to make sure their business ethic coincide with yours, you also need to check out the attorney servicing firms for the type of servers they use.

While many process servers have integrated advanced technology into their businesses in an attempt to keep prices competitive, their primary job of serving a legal document to a person has remained relatively unchanged. The courts rely on the process server to personally deliver the documents and document the service. This has remained the same for hundreds of years.

A process server might have a client that hires them to deliver the documents, however the process server must always remember they owe their allegiance to the Court and the justice system.

As we see technology creep into the world of law with e-filing, e-service and e-notary, the Courts are going to rely more and more on the integrity of the person providing the documentation. The Courts must have absolute assurance that the documents used in each case are prepared, issued and served by persons of unquestionable character.

As an attorney, you must choose you process server with the same caution as you do when you hire a person as an employee of your firm. Just as your employee can have positive or negative effects on your service to your clients, your process server can also impact your business in a positive or negative way. So choose you server wisely, it could cost you more than you think.