Litigants and their attorneys generally take time and effort to prepare good, air-tight, complaints because defendants may, and often do, challenge complaints right away.
Generally, though, the same amount of attention is not paid to the requirement to
give notice – service of process.
Valid Service of Process is Essential to Proceeding with the Lawsuit
Serving process successfully is as important as filing a complaint that can stand up against a challenge. Giving fair and adequate notice to a defendant about the claims in a lawsuit is a constitutional requirement of due process. Because of the connection with protecting a defendant’s rights, there are specific, detailed laws and procedures for service of process. If these rules are not followed exactly, then an attempted service of process will be invalid.
What Happens if There is No Valid Service of Process
Simply put, until and unless the official notice of the lawsuit is given in the manner required by law, a court has no authority (“jurisdiction”) to hear the case or to make any valid rulings or orders.
If service of process has not been made, or is insufficiently or improperly done, either the court on its own – or the defendant can and will – stop the plaintiff from proceeding.
The plaintiff is required within a stated period of time to submit proof that process was served. The court will demand compliance with that requirement or will halt the lawsuit.
A defendant can challenge the lack of service of process, or assert that the purported service was improper or invalid for a number of reasons – including that the statutory rules were not precisely followed. This type of challenge can be made in a “special appearance” by the defendant, or by way of an affirmative defense in the answer to the complaint filed by the defendant.
Unless and until the official notice is given, the court has no authority to hear the case or to make any valid rulings or orders. If such a ruling or order were made, the defendant could challenge it in any later proceeding by a defense called “collateral estoppel.”
The bottom line is that if there is no valid service of process, the plaintiff must start all over again – spending additional money and time – to locate the defendant and give adequate notice of the lawsuit.
How a Registered Process Server Can Help
Hiring a trained professional at the outset to perform this vital service of process function is a prudent, cost-effective way to ensure that the litigation can proceed promptly and without undue problems.
A registered process server knows and understands the complex law of process-serving. Even in the most apparently straightforward situations – “personal service” on the defendant – there are special rules – many of which are misunderstood by the general public. Teaming up with a competent, licensed process-serving partner can speed you through this necessary litigation step, and save you time and money by avoiding pitfalls and problems.