Knock knock. Who’s there?
Mr. Process Server. Mr. Process Server who? Open the door, I’ve got a present for you...
Do you have to open the door?
The answer is no. You don't. It's a stranger at your door. You don't open the door for a stranger. Doesn't matter what they look like. Doesn't matter what clothes they're wearing. Doesn't matter what they say. You don't open up the door for strangers.
WHAT IS A PROCESS SERVER?
So what exactly is a 'process server' and why do you need to know about this? A process server is a person hired by a lawyer to deliver legal papers to you.
A process server is supposed to make sure that the legal papers he received, are given to you. Those documents typically notify you about the start of a lawsuit. Or it might be a document that seeks your appearance in court, also known as a subpoena. The person who delivered those papers to you now has to confirm that he gave you those papers.
He actually has to swear he gave them to you. He has to swear, in writing, that he gave them to you. Legally, that’s known as an affidavit of service. An affidavit is a document where you swear something is true. He's swearing that he 'served' you those legal papers. This process server must swear that on a particular date and time he delivered these specific legal papers to you.
He is required to give a copy of that sworn statement to the lawyer who hired him to deliver those legal papers.
He is often required to file that sworn statement with the court. This way the judge will know exactly which people in the lawsuit have received the papers that started your case. What happens if the process server cannot find you to deliver those legal papers or if you refuse to open the door and accept the papers he came to deliver? There are alternatives the process server can use to send you these documents.
Those are second best. The best way to give you those papers is to personally hand-deliver it to you. "Hey Mr. Jones, this is for you," the process server says with a smile and an outstretched hand. The second best way is to leave a copy of them with someone who is authorized to accept these type of legal papers. Another alternative might be to leave a copy attached to your front door and then to mail a copy to that same address.
Why is this necessary?
In New York, when a civil lawsuit is started for medical malpractice, negligence, personal injury or wrongful death, we are required to deliver your lawsuit papers to the people you have sued. The legal documents that start your lawsuit are commonly known as a 'summons and complaint'. When the people you have sued have received those lawsuit papers, they must forward them to their insurance company. The insurance company will hire a defense attorney to represent them.
One of the first things a defense lawyer will look at is how were you given these lawsuit papers.
Were they mailed to you? Were they left at your front door? Were they left with a receptionist in your office? Did someone hand them to you? Were they faxed to you? Were they emailed to you? By asking these questions the defense lawyer is trying to find out whether you were properly given these lawsuit papers. If they were not properly delivered, according to the law, then the defense lawyer will raise all sorts of objections. He might argue that since you were not properly given the lawsuit papers, you cannot participate in these legal proceedings.
If the time limit to file suit has now expired, this could be a significant problem for you and your case.
Defense attorneys will often claim that their clients were not given those papers correctly. In legal terms, this is known as an affirmative defense of “Lack of personal jurisdiction. An affirmative defense is simply saying "I don't care about the merit of your lawsuit. You didn't follow the procedural rules and therefore we don't have to participate in your lawsuit."
What’s the big deal?
If the legal papers were not delivered correctly, then the court does not have control over the people you have sued. That's a big problem. It means they are not a party to your lawsuit. That means they don't have to appear in court. That means they don't have to appear for pretrial questioning.
That means you're fighting a battle against someone who never showed up.
You see, if the defense claims they didn't receive your lawsuit papers properly, they will argue they didn't know about your lawsuit in a timely fashion. In other words, they will argue that they had no 'notice' of your lawsuit. That's a convenient fiction.
Why?
Because obviously they knew about it when a process server delivered those papers to the people you sued. However, they claim because your process server didn't deliver those papers in the correct legal manner he was supposed to, they never really were notified about your case. Believe it or not, that argument, from a legal standpoint, may have merit. From a common sense point, it doesn't. Remember when I said earlier that there are alternative to personally hand-delivering those lawsuit papers to the people you are suing?
Legally, that's known as 'substituted service'.
It means that the process server was unable to personally deliver the lawsuit papers and had to resort to an alternative method of delivering the papers to the people you have sued. Why would a lawyer hire a process server to deliver the lawsuit papers? Can't he deliver those papers himself? The answer is yes, however a process server is familiar with the different legal requirements in New York for delivering those legal papers. He or she is often on the road each day delivering legal documents. If your attorney were to do this, he'd never get any legal work done.
