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Thursday, October 4, 2012

Service of Process in the 21st Century

Focusing on the Future

What does the future hold for the process serving industry?  Before attempting to answer that question let’s first acknowledge that the process serving industry has remained largely unchanged for many decades, if not longer.  The advance of technology has had some impact on the industry and the changes that have impacted the industry have largely been forced upon process servers.  It is not like they are looking for opportunities to embrace change and make it work for their benefit. 

As part of this article I will explore the role of Registered Agents as well as Process Servers and the relationship that exists between the two.   Registered Agents rely upon the delivery of physical documents to a physical location in order to fulfill their role of accepting the Service of Process.   Once they receive the document they typically perform a series of steps that are part of the actual intake of the documents.  First they perform a check to see if they actually represent the entity on whose behalf they were served.  Then, they will do a data entry function to log and document all the identifying details of the documents (plaintiff, defendant, court, case number, initiating law firm name, date of service etc…).  Depending upon the arrangement with their customer, they scan and email the documents and/or over-night the documents to the appropriate legal department of the intended recipient.  Some Registered Agents have sophisticated software that connects to the intended recipients matter/case management system.

If you stop and think about the role of Registered Agents and Process Servers you will see that they have a lot in common.   They both fulfill a specific role in the act of providing notice which is part of the due process rights of the parties to the legal action.  The Process Server’s role is to provide the initiating and receiving parties with a sort of peace of mind or proof that they performed the service lawfully.  Process Servers act as a disinterested third party that attests to the facts surrounding the service of documents to the intended recipient in a trusted manner.  In most cases they also provide the courts and the parties with a Proof of Service or Affidavit that the service was made in accordance with the governing laws.  Registered Agents also attest to service events details for their customers.  

I think that most inside this Eco-system and even some outside will  acknowledge that the manner or methods by which process is served and then forwarded to the intended recipient is not an efficient or practical way for the service event to take place.  The manners in which the Process Server and the Registered Agents fulfill their respective roles are lawful but they are not being performed, in my opinion, in a manner that common sense would dictate if you were trying to add value and create efficiencies.  I contend that these acts can and should be performed in a manner that actually adds more value and creates more efficiencies than those currently available.  The challenge of creating efficiencies and adding value for all involved presents an opportunity that shouldn’t be too hard to understand.

Let’s face it, what is going on here from a practical standpoint is nothing more than getting documents and data from the initiating party to the intended recipient party in a manner that can be trusted.    And if you look even harder you will see that the documents and data that the Process Server and the Registered Agent are managing originally existed in an electronic format at the law firm before the process server and registered agent even get involved.  I contend this is at least in part where the opportunities to add value and create efficiencies should originate.   If you were to enable an electronic platform to fulfill the service event, I think you could still preserve the roles and responsibilities of both the Process Server and the Registered Agent.  

Getting back to the original question; what does the future hold for the process serving industry?  I submit that future is bleak for both the Process Server and perhaps even the Registered Agent if they continue to ignore that they should be part of a solution that allows them to remain relevant.  I submit that this evolution will happen with or without the process server or registered agent.   If they embrace this opportunity they will be part of the solution and as a result their future could be bright. 

The funny (and sad) thing is that Process Servers,  Registered Agents and other interested parties did come together about nine (9) years ago to try to address this very challenge.  I know because I was there. I participated in those meetings and came away with the feeling that neither the Process Servers nor the Registered Agents were genuinely interested or committed to making it happen.  Ultimately the effort failed.  It was no one’s fault exactly, the parties weren’t ready, and perhaps it just wasn’t time.  That said the ABA committee that tried to address this challenge did leave an artifact that could be dusted off and reused.

I would argue that it is time now.  Actually it is past time that Process Servers transform their role at least as it relates to the service of process to corporate entities and Registered Agents.  I believe that if Process Servers want to stop the erosion of their service of process business model they need to become the electronic equivalent of a physical process server.   I understand that the notion of electronic process serving is scary and foreign to many in the process serving industry today.  Just because it is scary or foreign does not mean that it shouldn’t be discussed or embraced.  I believe that electronic service of process should be part of the technological revolution that has resulted in more and more people (even lawyers) becoming comfortable with performing essential and important tasks online/via the Internet. 

Did you know that our counterparts in Quebec and France have already started to embrace the kind of change that is necessary to make the transition to digital process serving?   The Quebec Huissiers are building and will soon be rolling out their solution to start that process.   I had the honor of speaking to Quebec Huissiers earlier this year about the importance of making the transformation from a physical fulfillment organization to an electronic fulfillment organization. I will be a guest speaker again this October in Quebec and will address the Rules of Civil Procedure in CA that enable private entities to be Electronic Filing and Electronic Service Providers.  

Technology waits for no man or industry; it just keeps getting better and more efficient.  History has shown us that those companies and industries that were slow to react or that were otherwise in denial were left behind never to catch up.  I will bet that you did not know that Kodak invented the first digital camera.  They did, and they chose not to evolve (perhaps to preserve their film business) and look at them now… they are bankrupt and may not survive.   Those in the process serving business that let fear paralyze them or otherwise fail to embrace this change will see their business leave them for good.  

If you are a process server in the United States and you are waiting for someone else or some process server association to address this challenge you are likely going to be disappointed.  If the process serving industry insists upon a fight that seeks to preserve the status-quo they will in my opinion have picked the wrong battle to fight.  If on the other hand you are interested in becoming part of the solution and ensuring your company remains relevant then it is time to lead by example and re-invent the Service of Process.  Rest assured if you don’t someone else will eat your market share for lunch.

I plan to be part of the solution.  How about you?

Jeff H. Karotkin
Vice President of Strategic Development
One Legal LLC