Monday, December 3, 2018

Process Servers

This has been a concern of mine for some time.  Some years ago, a co-blogger and I were sued by a despicable outfit called Righthaven, whose goal was to make billions (think of Dr. Evil) by suing everyone who it believed had violated copyright on newspaper stories.  I discovered along the way that "fair use" is a judicial construction with neither statutory nor discernable case law definition.  That was bad.  Fortunately, one victim pursued discovery far enough to find that Righthaven did NOT own the copyright for which they were claiming infringement.  But by then, many others had settled for many thousands of dollars.  Righthaven went bankrupt.  I'm sure the bottom weasel attorney running RightHaven is probably chasing ambulances or condom makers for Michael Avenatti now.

What I did find out in the process is a dirty little secret of civil litigation.  My son just ran into this dirty little secret.  The process server swears that they have personally served the defendant.  The first process server was aggressive and rude when she discovered the defendant did not live at my son's address.  The second one just left the summons on the doorstep.

When Righthaven sued me and my co-blogger Dave, I knew it was coming because a newspaper reporter in Las Vegas called me to ask about the suit.  So I never answered the door when a process server showed up.  She later swore that she had personally served me, and described two vehicles in our driveway that were never there.  When they served Dave, the process server claimed to have served the defendant's adult son.  (Dave was 22 at the time.  She made no attempt to verify who she was serving.)

I later found out that there are many process servers who provide "sewer service," claiming to serve papers but not doing so.  One, coincidentally in Las Vegas, was found with 12,000 summons that were sworn as served, but still in the process server's home.

So why does this matter?  If you are served and do not know it, you will lose by default in court.  How do you prove you did not get served?  As much as I like the idea of privatizing government functions, allowing for-profits to serve summonses creates an opportunity for dishonesty and injustice.  I have served a summons before, on a sister's soon-to-be ex.  I am beginning to think that only government agents with no profit motive or personal interest should be allowed to be process servers.

So I told my son to inform the court that a summons had been falsely served.  I am hoping this will save the defendant from a default judgement, and put a perjuring process server behind bars.

8 comments:

James Gibson said...

I maybe wrong but in the DFW metroplex eviction notices are brought by the Constable. When I first arrived here I though they had a constable in place of a county Sheriff. But the reality is they have all three:City Police, County Sheriff and a constable system that works out of the courts. So if you get a summons its a paid officer of the court that comes to visit you and not some outside contractor.

Rick C said...

I guess you could put a video camera on your front door and keep a big hard drive for storing recordings. Not perfect but it should help a lot.

Sigivald said...

Process serving should require actual evidence, such as a photo/video or signature.

(The latter not strictly required because it's often a hostile service and you can't compel a signature.

But it's 2018 - it's trivial to photograph or video the process.)

Tim Fowler said...

I'm not sure that government agents serving papers would solve the problem. It seems the problem is accepting that the papers were served without proof even if its disputed (or if the person "served" never gets a chance to dispute because they are unaware of the entire preceding). I think they need to bump up the standard of evidence for accepting that the papers were actually served.

BFR said...

"How do you prove you did not get served?"

You are not thinking accurately.

The question should be "How does the process server prove service?"

Easy answer: "Require the same evidence that is now required of LEO's. (who, in another country (the past) could simply testify)

Body worn camera recording of the service.

Done.

Clayton Cramer said...

BFR: Excellent idea!

Rich Rostrom said...

I remember a piece called "Place and Leave With". It was in True Tales from the Annals of Crime and Rascality, a collection of pieces by New Yorker contributor St Clair McKelway, originally published in the 1930s and 1940s. "Place and Leave With" was a profile of a very successful process server, who sometimes resorted to peculiar expedients to get to his targets.

(True Tales also includes "Mr. 880", the true story that became the basis of the charming 1950 movie of that name, starring Edmund Gwenn.)

Rick C said...

Take it a step farther: to get paid, the server must deliver the video.