Service of Process – Law for the Lay Person
In this series, we will look at some questions the average person asks their attorney throughout the legal process, from start to finish. The questions that everyone asks their lawyer as their case proceeds through the court. Today, we look at the start of the procedure: Serving the opposing party.
What is Service of Process?
In order to begin a lawsuit, the other party has to know that you are suing them. This is done by sending them an official announcement of what you are suing them for (the “complaint”) accompanied by an order telling them that they have to come to court to respond to the complaint (the “summons”). The summons tells them that they are being sued, what court they are being sued in, and how long they have to tell the court what their side of the story is. (“answer” the complaint).
If the other person doesn’t get the summons and complaint, he or she cannot answer in the amount of time that they are allowed by the court. However, that does not mean that you win; it means that you could lose for something called “failure of service of process.” Service of Process is subject to being completed within 120 days, or the Plaintiff should seek an extension of time for service of process. Any Plaintiff has the option to dismiss the case and refile the case so that the summons and complaint (“the process”) can be served timely.
To avoid this, your attorney gives the summons and complaint to a process server. The process server knows exactly how to deliver the summons and complaint to the person being sued, and how to document the service so that it will be recorded properly in court. To do this, the process server will fill out and send to your attorney something called “proof of service,” or “return of service.” This tells the court in an affidavit or verified document who the process server is and who he or she gave the summons and complaint to (person or corporation), what date and time he gave it to them, and what other documents (like exhibits) were included.
Just as important, if the process server can’t find anyone to take the documents (“accept service”) he notes down all the times he tried to serve them. The courts generally require three different attempts, on different days and times of day, before it considers that enough attempts have been made and a different method can be tried.
All this has to be done before your lawsuit can begin.
How Long Does it Take?
Your case begins in your attorney’s office; but the lawsuit cannot begin in the court until the opposing party has been served and has had an opportunity to respond. Your attorney will file the complaint, and receive a case number, in about two to five days. Once a case number has been received, the summons can be issued, and then sent to the process server.
After the process server receives the summons and complaint, he will attempt service. Then the opposing party has twenty days (or up to 45, depending on the type of service and type of case) in which to answer the summons. The time to answer does not start (“run”) until the day after the opposing party receives the summons, although it is 20 calendar days, not 20 business days. So your case will not truly start until three weeks from the day the opposing party gets his or her copy of the complaint.
What Happens Next?
Many things. That is the subject of the next article.