The ‘service of process’ signals a lawsuit’s beginning
Vail, CO, Colorado
Service of process sounds like something Roger Federer might deliver from his tennis racquet. As in, “Federer’s service was processed deep into his opponent’s court.”
Or, maybe, the term harkens to an element of fine dining. “The ahi was wonderful, as was the atmosphere, and what service of process!” But, alas, no.
Service of process encompasses the service of writs, summonses and similar things. A writ is an order of the court, compelling someone to do, or to refrain from doing, something. A summons is a like a formal invitation. Except, rather than champagne, canapes and little plastic swords holding finger sandwiches together, what a summons invites you to do is participate in a lawsuit. Oh, joy. Pass the canapes instead, will you, please?
More precisely, a summons is a means of acquiring jurisdiction over a party. A “party,” in this instance, not connoting canapes, bubbly and little plastic swords, but a participant to the proceedings, in this case a lawsuit.
Definitions are in order
“But what the heck is jurisdiction?” you might be asking yourself at this juncture. In essence, jurisdiction is an expression by the court that it has the rightful authority to hear the subject matter in controversy, that the proper parties are present within the court’s ambit of authority, and that the matter has been brought to it for adjudication. In other words, the right folks are here and the subject is one the court can decide.
So what the heck is “process?” In this case, “process” is the whole universe of law. It is, in fact, the manifestation of law itself, the means, methods and mechanisms by which lawsuits advance and, ultimately, come to a conclusion.
More fundamentally, process is the mode, means and methods whereby a result is produced. In this way, process, in law, is like any other process. It is the way a thing is produced.
In the rendering of bacon, it is the means and mechanisms by which the little piggie becomes your breakfast. In law, it is the means and mechanisms by which a conflict is resolved.
Law, delivered to you
Service of process, then, is the means by which the process of law is delivered into your own hot little hands. The process of law is delivered to you in much the same way as the rendered little piggie is delivered to your table by the waiter or waitress. In the instance of legal proceedings, however, the sizzling strip of bacon is the lawsuit and, instead of a waitperson, the lawsuit is usually delivered by a deputy sheriff or by an independent process server.
What service of process does (and this is really the essence) is put you, as a party to the legal proceedings, on notice that the lawsuit has commenced and that you have been named as a party to the proceedings. It says, in its own splendid legal way, “Congratulations, Bubba, you have been named a party to such-and-such lawsuit and here is the where and when of the festivities that are going to take place.”
Notice of the festivities, in turn, gives you the opportunity to retain counsel, prepare an appropriate defense, and affords you the opportunity to appear at the appointed place and time in order to be heard, to tell your side of the unhappy tale.
Most times, service of process is personal. That doesn’t mean the process server takes it personally (or that you should take it personally), but that the relevant legal papers are actually placed in the hands of the person to whom it is directed. The sheriff or private process server physically hands the complaint to the defendant or some other person of authority, such as an officer of a corporation where the corporation is the defendant. Personal service is accomplished by delivering a copy of the summons and complaint to the person named or by leaving copies at his or her usual place of abode with some responsible person.
“Constructive” service of process is service of process by any means other than by personal service.
Say, for example, the defendant can’t be found. The lawsuit may still be commenced as long as adequate constructive service has been given. The rules here are many. As but one quick example, service may be by publication, that is to say, a notice concerning the commencement of the lawsuit may be published in a periodical of mass circulation on several consecutive occasions. This amounts to an ad run in a newspaper where the person is known or suspected to live, notifying the person that he or she is being sued. Of course, service by publication is resorted to only when ordinary means of service fail.
The long and short of all this is that service of process is the means by which you are invited to participate in a lawsuit. An invitation you, quite literally, can’t refuse.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his e-mail address: email@example.com.