Service of Process

Author:Jeffrey Lehman, Shirelle Phelps

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Delivery of a writ, summons, or other legal papers to the person required to respond to them.

Process is the general term for the legal document by which a lawsuit is started and the court asserts its jurisdiction over the parties and the controversy. In modern U.S. law, process is usually a summons. A summons is a paper that tells a defendant that he is being sued in a specific court that the plaintiff believes has jurisdiction. Served with the summons is a complaint that contains the plaintiff's allegations of wrongdoing by the defendant and the legal remedy sought by the plaintiff. The summons also informs the defendant that he has a specified number of days under law to respond to the summons and complaint. If the defendant does not respond, the plaintiff may seek a default judgment from the court, granting the plaintiff the legal relief specified in the complaint.

Rules of CIVIL PROCEDURE and CRIMINAL PROCEDURE determine the proper form of legal process and how it should be served. The rules vary among federal and state courts, but they are meant to give the defendant notice of the proceedings and to command him to either respond to the allegations or to appear at a specified time and answer the claim or criminal charge. The concept of notice is critical to the integrity of legal proceedings. DUE PROCESS forbids legal action against a person unless the person has been given notice and an opportunity to be heard.

Process must be properly served on all parties in an action. Anyone who is not served is not bound by the decision in the case. A person who believes that proper service has not taken place may generally challenge the service without actually making a formal appearance in the case.

Whether service was proper is usually determined at a pretrial hearing. A defendant must request a special appearance before the court. A special appearance is made for the limited purpose of challenging the sufficiency of the service of process or the PERSONAL JURISDICTION of the court. No other issues may be raised without the proceeding becoming a general appearance. The court must then determine whether it has jurisdiction over the defendant.

Methods of Service

Three basic methods are used for service of process: (1) actual, or personal, service, (2) substituted service, and (3) service by publication. Although each method is legally acceptable, PERSONAL SERVICE is preferred because it is the most effective way of providing notice and it is difficult for the defendant to attack its legality.

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Personal service means in-hand delivery of the papers to the proper person. Traditionally personal service was the only method of service allowed by law because it was best suited to give the defendant notice of the proceedings.

Substituted service is any method used instead of personal service. Forms of substituted service vary among different jurisdictions, but all are intended to offer a good chance that the defendant actually will find out about the...

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