Sheriff Wants to Charge Actual Cost of Serving Civil Writs

Sheriff Wants to Charge Actual Cost of Serving Civil Court Writs

 

What a novel concept.  Here is a TV news story about a Nebraska Sheriff acknowledging that they are losing money every time they serve civil process.  They estimate that they are losing about 100K per year.  And to make matters worse the taxpayers foot the bill for the 100K loss. 

 

 

"The Hall County Sheriff says he is looking for different solution to cover costs so people who are not using the service, don't have to pay for it.

 

About 10,000 civil court papers are served every year in Hall County.

"We are losing about $10.17 per paper we serve," said Hall County Sheriff Jerry Watson.

 

Fees set by the legislature help this sheriff's office recoup some of those costs, but it all adds up.

 

"Just for easy figuring it's $300,000, is what it's costing us and we're collecting $200,000 of that so we are short $100,000," said Sheriff Watson."

Process Servers Required to eFile in Ohio County

        PROCESS SERVERS MANDATED TO ELECTRONIC RETRIEVE CASE INITIATING               DOCUMENTS AND ELECTRONICALLY FILE THEIR RETURNS OF SERVICE

Effective December 1, 2012, all persons appointed as a process server by the General Division of the Montgomery County Common Pleas Court shall obtain all civil documents for service and shall file all service returns for civil cases through the Court’s authorized electronic filing system. This same requirement will be effective January 1, 2013 for criminal cases. Please review the Administrative Order In Re: Mandatory Electronic Filing of Documents Filed by Process Servers and Process Servers Instructions under Links to become familiar with the requirements. Please select the Training tab at the top of the screen to register for a training session.


I have read the instructions and I understand the process. I am wondering what is the benefit to the case initiating party?  What is the benefit to the Process Server? Don't get me wrong, I think it is a step forward for a Court to realize that its justice partners, in this case Process Servers need a role in the electronic filing world.   I am just not sure that this is the most elegant way of accomplishing that objective.  I guess you have to start somewhere. 

Link to Process Server Instructions here
Link to Process Server eFiling Mandate here

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

Facebook Service of Process Approved in S. Africa

SOUTH AFRICAN JUDGE ORDERS SERVICE OF PROCESS

VIA FACEBOOK

 

As if the Newspaper publishers did not already have enough challenges to their business model, Service via Publication in the back of a newspaper is loosing its appeal.  It would seem that it is being replaced by Service via Facebook, email and other electronic methods.   Those that follow the Process Serving industry know that service via publication in a newspaper is typically ordered by a court when all other methods of service have failed or have otherwise been exhausted.  Facebook seems to be the new preferred method of service when all other forms of service have failed. 

This from the Independent Online News in South Africa (IOLnews)

Judge explains Facebook summons

August 7 2012 at 09:51am
By Mervyn Naidoo

“Changes in communication technology have increased exponentially; therefore it is not unreasonable to expect the law to recognise such changes and accommodate it,” said Steyn in a written explanation.

“The present application, in my view, would not have been possible had it not been for a recent amendment to the uniform rules of a court which provides for service by way of electronic mail, registered post and fax,” said the judge...

link to story

This story is one of many similar stories I have addressed in recent years on this blog.  Do cases like this one and the others suggest that traditional process servers are going to cease to exist?  Personally I do not think so, but I do think it is important that process servers the world over acknowledge that times are changing and that we need to change with them and hopefully evolve so that we can become the electronic equivalent of a physical process server if that means that is the only way we will remain relevant and the due process rights of the practice are protected.

Jeff H. Karotkin



Service of Process via Text Messaging... Constitutional?

Text Message Service of Process - No Lol Matter: Whether Text Message Service of Process Comports with Due Process

by

Claire M Specht

Boston College Law Review

August 2, 2012

Boston College Law Review, Forthcoming

This Law Review Article like several others I have posted to this blog over the years explores the history and legal precedents of lawful Service of Process, as well as exploring whether or not the courts and other rule making bodies should consider alternative forms of service that conform with modern technologies. This Law Review Article focuses onText Messaging as a manner of service and whether it could be reasonably be calulated to provide actaul notice. 

"Advantages and Limitations of E-mail Service of Process

Despite the significant push for allowing e-mail service of process amongst scholars and practitioners, scholars have extensively dis-cussed the advantages and disadvantages arising from e-mail service of process. Some scholars argue that the advantages of e-mail service of process outweigh the disadvantages. These scholars appeal to the extensive use of e-mail by individuals both domestically and abroad. Moreover, serving process via e-mail is efficient as it costs little, if any-thing, to send and results in almost instantaneous receipt. Further, at least one commentator has argued that service of process through e-mail is more likely to apprise the defendant of the proceedings be-cause it is not subject to movement but rather remains in the defen-dant’s inbox until it is opened."

In my opinion this article is a must read if you want to better understand the challenges and opportunities facing the private process serving industry in the United States and globally.

The full content can be found here.

Jeff H. Karotkin

Has the Internet Changed the Service of Process

Has the Internet changed the way Process Servers perform their jobs? Will traditional process servers become a thing of the past?  

 

The answer is clear to the first question, how process servers perform their duties has changed in so many ways.  And electronic service of process may be one of the biggest changes on the horizon.

 

Tabitha Messick of Citizen Media Law Project, published a blog post earlier today (July 26, 2012) entitled Service of Process, 2.0.  Her post explores the role of Service of Process historically and chronicles its slow evolution up to a case in New York that I wrote about a few weeks ago involving a judge’s refusal to allow service of a defendant via social media.  Her blog post can be found here. 

 

She makes many of the same observations I have made in prior blog posts.  If I did not know better I would think that much of the information she has written about was gleaned from this blog.  If so, I am flattered.   The following is one of her observations:

 

"The ABA's Science and Technology Committee took a stab at addressing legal and technical issues with electronic service in 2006 with its Best Practices for Electronic Service of Process (eSOP). Though dated now, it was an important starting point in the discussion. The document proposed requiring knowing and voluntary waivers of service (e.g., via website terms of use), document encryption for privacy and confidentiality, and maintaining principles and protections consistent with due process. The draft rules also reiterated the importance of receipted transactions as reliable proof for electronic service of process."

As one of the few folks that was fortunate enough to have participated on the ABA committee that crafted the Best Practices, I have to agree that it is time to dust them off and use them as a new starting point to help ensure that simple email of social media platforms do not become the standard for reliable electronic service of process.  

It is crystal clear to me that the legal community is embracing change and primed to accept the notion that eService could be as reliable and trustworthy as traditional service of process. The question remains will traditional process servers be in a position to recognize that even though the shifting marketplace is scary and sometimes threatening it may present an opportunity?    Time will tell.

Jeff Karotkin

Service via Facebook - You Have a New Lawsuit

A very comprehensive look at the issues surrounding service of process via social media; written by two lawyers at Morrison & Foerster.


They cite references to most of the major instances of service of process via social media globally over the last few years. I even get a nod with a link to an article I wrote last year about the trend.

http://www.sociallyawareblog.com/2012/06/25/you-have-one-new-lawsuit-can-you-serve-legal-notice-through-social-media/

"In the long run, service through social media and other Internet-based means of communication could become a viable alternative to personal service, given that electronic service may have certain distinct advantages over the traditional means of alternative service used where no physical address is available (i.e., publication in local newspapers and posting of public notices). "

by Jeff Karotkin

Service of Process via eMail and ePublication

Last month in a Federal Court case pending in the UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION, Judge Robert M. Dow granted a Motion for the Service of Process via email and electronic publication. 

Those following this Blog know that this is hardly the first time that a similar Motion and Order has been granted in Unites States courts.  As a matter of Federal Rule of Civil Procedure 4(f)(3), specifically allows courts to grant alternative manners of service on foreign defendants when all other manners of service have been exhausted or have be unsuccessful.

The following is actual language from the Motion arguing for these alternative manners of service.   

Service of Process by E-mail and Electronic Publication is Warranted in this Case Pursuant to Federal Rule of Civil Procedure 4(f)(3), Coach requests an order allowing service of process on Defendants via electronic mail (“e-mail”) to the registrant of each of the Defendant Domain Names at the e-mail address provided by the registrant to the registrar and by electronically publishing notice of this action at the Defendant Domain Names.

Electronic service is appropriate and necessary in this case because the Defendants, on information and belief, (1) have provided false physical address information in their registrations for the Defendant Domain Names in order to conceal their locations and avoid liability for their unlawful conduct, and (2) rely primarily on electronic communications to communicate with their registrars and customers, demonstrating the reliability of this method of communication by which the registrants of the Defendant Domain Names may be apprised on the pendency of this action. Coach respectfully submits that an order allowing service of process solely via email and electronic publication in this case will benefit all parties and the Court by ensuring the registrants of the Defendant Domain Names receive immediate notice of the pendency of this action and allowing this action to move forward expeditiously. Absent the ability to serve the Defendants in this manner, Coach will almost certainly be left without the ability to pursue a remedy.

Click the document to link to the actual Motion filed by the plaintiff law firm representing COACH, INC. and COACH SERVICES, INC.,

By Jeff Karotkin

Service of Process Under the Hague Convention... To Mail or not to Mail?

Courts around the country are split as to whether Article 10(a) permits Service of Process by mail in international civil actions, the New York courts are no exception.

Recently the New York Law Journal produced a white paper that provided expert analysis of the issues surrounding the differing points of view of various courts in New York.  

I am probably over simplifying the issue but it appears to me that part of the conflict  has to do with what is the definition of  "Service of Process" on the Hague Convention.  Is it correspondence and other informational material or is it more formal documents like a summons and complaint?  Some courts have held that it is both while others have not. 

It seems to me that if the initiator of the Service of Process and the recipient of the Service of Process are consenting to service via postal, electronic or other more convenient and cost effective channels then who cares. 

I encourage you to learn more by visiting the article at the link provided above.   

Jeff Karotkin

Electronic Service of Process via RPOST

Three months ago I posted an article on this Blog titled "Can you Serve Summons & Complaint by Email? " in that article I cited another instance where RPOST was ordered by a federal court as alternative means of Service of Process on a foreign defendant.  So this is hardly the first time RPost has been on the Service of Process Looking Forward radar. 

I have been watching RPost for some time for this very reason.  Does their technology pose a threat to traditional  manner of service of process?  I contend that as long as it is being used as method of service of process when all other reasonable methods have been exhausted, then my short answer is no.  It is arguable more reliable than service by publication in a newspaper.  

But RPost is worth watching.  In my prior article I wrote the following:

It is also be worth noting that RPost recently participated in a roundtable discussion hosted by the Federal Trade Commission.  The roundtable explored how changing technologies affects the ways debt collectors communicate with consumers and how emails are being used by collection agencies in the collection process.  

Now imagine if the debt collector is allowed under the FDCPA regulations to communicate with the debtors using regular email or RPost's product.  If that happens why couldn't a debt collector send a Summons to the debtor using a reliable and secure electronic channel?  The collector might say in the email I can send the summons to you by email or I can send a process server or Sheriff to serve you... You pick, but keep in mind if I send a process server I might include the cost of service in the judgment or settlement amount.  Now that might put a dent in the process serving industries pocket.

When is the process serving industry going to acknowledge that service by electronic means is not much ado about nothing?   If you listen to some in the process serving industries leadership it is clear they are either out of touch or naive.  Either way, how you as a process server remain relevant is your responsibility.  If you are waiting for your national association to step up and save the day, I submit it will be too late.

by Jeff H. Karotkin

Technology is Modernizing Process Serving

This from InsideArm, an accounts recieveable managment association that caters to the consumer debt collection indsutry...

The industry’s leading process service companies are now deploying sophisticated technology and mobile devices to add substantive evidence that legal documents are properly served and that collections agencies and attorneys are providing defendants proper notice of legal proceedings. says Steve Carrigan of ABC Legal

http://www.insidearm.com/opinion/technology-is-modernizing-debt-collection-process-serving/ 

What do you think?  Is all this monitoring of process servers a good thing?   Later this month a process serving standards summit will be held in Denver to discuss the possible adoption of minimum industry standards for process servers serving consumer debt collection matters.   View the proposed standards here. http://www.processservingstandards.com/ 

by Jeff Karotkin

Quebec Bailiffs are Becoming Digital Process Servers

I had the pleasure of being a guest of the Chambres de Huissiers du Justice (Quebec Bailiffs Association) in Montreal a few weeks ago.  The annual "congress" was focused on technology and how the Quebec Association of Bailiffs have developed a product called "Notabene".  Notabene is a platform that acts as a disinterested third party that performs many of the same functions as a physical process server only electronically.  Clearly the Bailiffs in Quebec recognized that fax and email was eroding their business so they sought to create a platform that enabled them to become the equivalent of an electronic process server.  

“There has been a lot of talk in the legal community about electronic notice and, to help make that happen, we are offering a vehicle that is secure and operated by a trusted third party,” says Louis-Raymond Maranda, president of the Chambre des huissiers de justice du Québec. 

Read more: http://www.montrealgazette.com/Strictly+Legal+Quebec+bailiffs+become+digital+process+servers/6821874/story.html#ixzz1yZjLBDmn

As the article indicates the product is owned by the association and the actual members of the association.  It is a very interesting product that currently allows lawyers to serve each other (notice to opposing counsel) in an inexpressive, secure and trusted manner.  

The important point (at least to me) is that this effort in Quebec is a great example of folks with a common interest (survival and prosperity) coming together to create something that allows them to remain relevant in an increasingly digital world that threatens their very existence. 

Thank you to Chambre des huissiers de justice du Québec allowing me to address their members as a guest speaker at their conference.  I spoke to them about eFiling, eService, change management.  

Jeff H. Karotkin  

Alernative Service of Process - Service Via Website Posting

Last week a UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Judge Ordered Service by alternative means pursuant to the Federal Rules of Civil Procedure 4(f)(3).  This manner of service is somewhat unique and as far as I know has only been ordered exactly this way in one other case.

The Order reads in part as follows:

1. Plaintiff shall serve each Defendant's Summons, Complaint, and all other current
 and future filings in this matter, upon Defendant 8 - chanelbags-2010.com via desianerbags@live.com; upon Defendant 10 - chanelpricelist.com via TopGiftzolzt@gmail.com; upon Defendant l 5 - designerbagsoutlets.com via designerbagsoutlets@hotmail.com; upon Defendant 28 madeinputian.com via madeinputian@hotmail.com; upon Defendant 39
sobestreplicahandbags.com via goodhandbagsonsaleçzgmail.com; upon Defendant 42
swissetawatches.com via saleslwatchzbuy.com; and upon Defendant 46 - topshoesshop.net via
topshoesshopro@hotmail.com ;

2. Plaintiff shall also serve each Defendant's Summons, a copy of the Complaint,
and all other current and future filings in this matter, upon each Defendant in this action via (A)
the e-mail addresses provided by Defendants (i) as part of the domain registration data for each
of their respective domain names, including service via registrar, or (ii) on their websites,
including by onsite submission form s, and/or

3. Plaintiff may effectuate service of process on Defendants via publication by
posting a copy of the Complaint, and Summonses on the Internet website appearing at the URL www.servingnotice.com/sdm/index.html

If you visit the website provided in the Order ( link above) you will find that it is the equivalent of an electronic publication of all the relevant documents in the case that would provide the defendants with actual notice of the lawsuit.  That is assuming they actually visited the site.  The complete Order in this case case her found here.

The other instance of service via a website that is very similar to this example can be found be visiting: www.serviceofpleadings.com  In this case the judge ordered the copies of the pleading to be posting in both English and Chinese as it was believed that the defendant might be of Chinese decent. 

By Jeff Karotkin

Federal Judge Rejects 'Unorthodox' Plea to Permit Service by Facebook

Judge John Keenan of the U.S. District Court for the Southern District of New York decided that Service of Process by Publication was more effective manner of alternative service than posting an update to the Facebook page of the defendant.    

The Plaintiff after being unable to locate and serve the defendant petitioned the court to allow service by electronic mail, publication, Facebook and mail.  The judge determined that service by publication in 5 newspapers was the most likely to provide actual notice.  

The Judge said "Service by Facebook is unorthodox to say the least, and this court is unaware of any other court that has authorized such service," Keenan said. "Furthermore, in those cases where service by email has been judicially approved, the movant supplied the Court with facts indicating that the person to be served would be likely to receive the summons and complaint at the given email address."

The judge went on to say "give the Court a degree of certainty that the Facebook profile its investigator located is in fact maintained by Nicole or that the email address listed on the Facebook profile is operational and accessed by Nicole."  "Indeed, the Court's understanding is that anyone can make a Facebook profile using real, fake, or incomplete information, and thus, there is no way for the Court to confirm whether the Nicole Fortunato the investigator found is in fact the third-party Defendant to be served."

I for one happen to agree at least in part with the judge in this instance.  Unless the moving parties can establish that the profile did in fact belong to the defendant, that manner of service is not reasonably calculated to provide actual notice.   That said, service by publication is not much better, but it has a long history of being a means of last resort where service by social media does not.  

Service via social media platforms has been picking up momentum in recent years and I believe it would be threat to due process rights of the parties to accept it as a reliable manner of service just because Facebook has established a platform and brand that is used the world over. 

The courts should be looking to craft and adopt Best Practices for Electronic Service of Process for parties that opt-in or for instances where all of manner of service have been exhausted.  Perhaps judge should be more aware of the the American Bar Association adopted a set of best practices way back in 2006.    I would argue that is it time to dust them off and make sure that they are as relevant today as they were meant to be back then.  The bench and bar should be socializing them across the country so that judges have as much information as possible before they rule on motion to allow alternative forms of service of process.  

HAS NAPPS LOST ITS WHY?

This post is my perceptive and opinion based on years of first hand experience "inside baseball" analysis.


A few newsletters ago the Administrator Gary Crowe wrote about what he believes NAPPS is and what it does and how it does it.  From my perspective he was telling the members what was important and how things are supposed to work with the association as it relates to the members rights and responsibilities.

Whether you are or disagree with his assessment is not really important, what his message told me is that he and several others of the inner circle of NAPPS leadership over the years have lost sight of “why” NAPPS is important and was founded in the first place.  Notice I did not say they lost their way.  You would have to have a clearly articulated plan and an idea of how you intend to execute on that plan in order to have lost your way.  Without an idea of where you are going and how you hope to achieve your goals and objectives you can’t lose your WAY.

I contend that everything that NAPPS does and doesn’t do should flow from or be the result of its WHY.  Why does NAPPS exist?  Why is NAPPS important? Instead it appears to me as evidenced by the Administrators message and the messages of the leadership everything has become about WHAT and HOW.

In the early years of NAPPS it did have a very clear sense of WHY; not anymore.  NAPPS the brand, NAPPS the organization has lost some of its appeal, it is no longer as special as it once was, it no longer commands the respect and stature it did years ago.   It has lost its WHY.
Let’s face it, there are many process server directories in print and online, some arguably do a much better job providing their members and subscribers with real and meaningful value.  Members and non-members alike have gravitated toward other directories and forums to educate themselves, share ideas and network with their peers.

NAPPS can no longer differentiate itself and its brand from the others as the leader in the industry.  This was not always the case.  It was once like APPLE (the company) everyone wanted to be a part of it, everyone wanted to be associated with its brand.  Being a member of NAPPS differentiated you as a professional.   Unfortunately that is not as true as it once was.
If you were to ask an avid skier, cyclist or fly fisherman and someone asked you why you participate in those activities, you will likely answer that question be demonstrating your passion for that activity.   If you ask a NAPPS member why they are a member or a board member why they want to serve I contend that they will not be able to answer you with the same passion and enthusiasm as the fisherman, cyclist or skier.

I contend that the reason is because in part NAPPS has lost its WHY, its reason for existing, its focus on what is truly important, the reason the organization was started in the first place.  NAPPS was about preserving and protecting the private process serving industry.  That was its mission, its core reason for existence, its purpose.

Today, NAPPS has become about differing segments of members fighting over the pie.  Fighting over money, board seats, it has become about the personalities that are unwilling to set aside their egos for the good of the organization because they fear they are losing control.  If NAPPS is good at anything lately it is good at reacting to threats and even that is debatable.  It certainly is not looking for opportunities to ensure we as an industry remain relevant.

NAPPS was created with a clear set of objectives, its purpose or why was to ensure that private process and their role in ensuring the due process right of litigant was protected.  Simply put the WHY was always about making sure that private process servers remained relevant.

If you accept my premise and if any of it resonated with you, I content it is time that NAPPS found its WHY.   Once found, NAPPS should hold a strategic summit with leaders from all the state chartered associations to discuss and adopt a new or refreshed purpose or WHY.   With the WHY formally agreed upon our leaders should then go about defining a clear set of short and long term objectives that flow from that WHY.  Then and only then will NAPPS be able to measure it success against something meaningful.  In order to effectively execute on the goals and objectives NAPPS needs to make sure that someone  is ultimately responsible and accountable for producing results that get us from where we are today to where we want and deserve to be tomorrow.

Unfortunately in the last few years the leadership and management structure not only doesn’t support or embrace that kind of accountability and transparency, it resists it.  The time has come for NAPPS to reexamine its WHY and get back to what is important and why it was created in the first place.   This kind of commitment requires courage and leadership.  It requires willing and able participants who are truly invested in bringing NAPPS from the cusp of falling from greatness.

Let’s hope that this coming year doesn’t become a repeat of the last few where the agenda included constant fights over minutes for no good reason, kicking out a duly elected board member, issuing sanctions against those that dare to ask difficult questions and demand more accountability and the constant disregard for our established published policies.

Based on what I saw this last weekend there were a few glimmers of hope but overall it appears that this year will be about hunting down and lynching those that have been critical of NAPPS and some of its leaders.  One of the attendees this weekend actually called for hangings.  If the goal was to create an angry irrational mob then the leaders succeeded.  If that is what we can expect NAPPS it is truly doomed to fall from greatness.   It is time to heal and rise of above the BS and put this ugly chapter behind the organization.   It can’t afford to waste another year; the status-quo will not carry the day.

By Jeff H. Karotkin

Process Servers - From Here to There

Process Servers and Our Association; How Do we Get from Here to There

Private Process Servers - - - Do you and does your industry or association have a road map?  What I mean is do we have a clearly articulated set of goals and objectives from which we can plot a course that ensures we remain as important and as relevant to the legal system as we have been for many decades?   Depending upon who you ask the answer to these questions will vary.   Another way of putting it is… are we renewing our greatness or are we dangerously on the cusp of falling from greatness and ceasing to remain relevant?  

To be sure there are several forces that are having an impact on our industry in a negative way.  The ever increasing pace at which technology is causing the legal profession to evolve is a challenge that many in our industry have failed to recognize.   Case and point, is the number of process servers that no longer have a role in fulfilling their clients’ needs at the courts.   If your court is has not already implemented electronic access to case files and electronic filing it will over the next few years.  This evolution alone threatens to diminish our role and relevancy in the eyes of the legal profession.  With electronic filing comes electronic service between parties.   I attended a demonstration recently given by LexisNexis File & Serve where they demonstrated their product.  They showed that they have filed and served millions of documents with the court and enabled electronic service (party to party) service.  They are serving 5,400 transactions per calendar day electronically.     All that business is gone or otherwise out of reach to the typical process server/legal support agency.   Why is Lexis so successful?  They are successful because they figured out how to remain relevant and bring value to what had been a very labor intensive paper based fulfillment process.  They embraced change and made it work for them and their customers.

Private Process Servers need to take a page from their playbook and start evolving.  I am not talking about creating a website or online order placement or stat using systems.  That is easy and though important in today’s marketplace it will not win the day.

Process Servers in my opinion should be looking outside the box and should be trying to figure out how they can enable electronic service between parties (law firms) and even enable electronic service to defendants directly.  I know that makes process servers uncomfortable.  Well guess what if you don’t figure it out someone else will.

This brings me to your association and its role if any in leading the industry forward so as to ensure all of us are informed and in position to bring value to the legal industry.  From where I sit I think that for the most part your associations have failed this test and as stated earlier in this piece; they too are on the cusp of falling from greatness and are dangerously close to ceasing to remain relevant.

I would submit that NAPPS and the state chartered associations have a responsibility to address the fundamental problems and challenges facing the industry.  Whether they are technological challenges, Sewer Service or the likelihood of increased government regulations, an effective accountable and transparent association will be crucial to getting the industry From Here to There.

In order for that goal to be realized the associations must reexamine their structure, their purpose and their goals and objectives.  I believe that these thing must be refreshed if the associations are going to be effective in the years to come.

It is clear to me that it is not good enough to be reactive to the challenges I have noted in the piece, rather recognize that the legal eco-system that we exist and live in has been evolving for some time and we have not.  We are at a crossroads that will determine whether or not each of businesses will evolve or die a slow death.

I don't proclaim to have a crystal ball but I do know that we (the associations and our industry) are on the cusp of falling from greatness.    Some of us will not only survive but will thrive, while others will not.  That is just the way things work.  Call it natural selection or evolution, whatever you chose to call it you need to decide which side of the fence you plan or being on.  

I have watched and participated in a few associations and I have learned few lessons along the way.  One of the most important among them is those that we consider the forefathers or founders did an amazing thing by leading earlier on, but now is the time for the next generation of leaders to step up, they need to refresh, reorganize and reenergize the association and the industry.  It is time to acknowledge where we are as an industry and that the status-quo thinking and decisions are outdated, they lack vision and purpose.   We need and should demand leaders that will roll up their sleeves, embrace change and ensure we do not fall from greatness but remain relevant and prosper for years and decades to come.
 

Jeff H. Karotkin

Can you Serve Summons & Complaint by Email?

The answer to that question depends upon who you ask.  Those that have been following this blog for the last few years know I have explored this and other challenging questions and concerns that are impacting the private process serving industry. 

Service of legal documents by electronic means has been evolving for more than a decade.  So it is no surprise to me that hardly a month goes by when there is another example of how technology is changing the way law is practiced and how the Service of Process is performed.  

Recently, I was made aware of another example of how things are changing that affect the process serving industry.  The example was a blog post by a company I have been following for some time.  I have considered them worthy of watching because I thought it was likely that their registered email product could be used to displace or disrupt traditional manners of service of process in use today.  That company is RPost.  

Before I forget, upon passing the baton a few years ago to Bob Musser and Eric Vennes (the last two NAPPS Technology committee chairs) I made sure that they knew that I felt strongly that they should be watching RPost.    Whether or not they took my advice, I do not know.

OK, back to RPost, they published a story on their blog recently that posed the question I asked above.  Can you Serve Court Papers by Email.   The quick answer is it depends upon a number of factors including applicable laws, statutes and individual judge rulings that hear requests for alternative forms of service.  Interestingly story cites a case pending before the United States District Court for the Eastern District of the Texas where RPost was the plaintiff.  The judge in that case Ordered service of process by email and the plaintiff attorneys used RPost's own registered email product to effectuate service on a foreign defendant.  IN my opinion one of the more important aspects of this story is that RPost is now touting its product as a being reliable, secure and court admissible proof of delivery for the Service of court documents.   

It is also be worth noting that RPost recently participated in a roundtable discussion hosted by the Federal Trade Commission.  The roundtable explored how changing technologies affects the ways debt collectors communicate with consumers and how emails are being used by collection agencies in the collection process.  

Now imagine if the debt collector is allowed under the FDCPA regulations to communicate with the debtors using regular email or RPost's product.  If that happens why couldn't a debt collector send a Summons to the debtor using a reliable and secure electronic channel?  The collector might say in the email I can send the summons to you by email or i can send a process server or Sheriff to serve you... You pick, but keep in mind if I send a process server I might include the cost of service in the judgment or settlement amount.  Now that might put a dent in the process serving industries pocket.

 

Of course I am speculating as to what could happen, but I submit my speculation is not too far-fetched. My blog cites more than a dozen examples in recent years where service by electronic means is becoming more and more common. 

If you are a process server that plans on remaining relevant over the next few years you should be asking yourself what are you doing and/or what is your association doing to address these challenges?  If you opt to not take these and the other examples of how the industry is changing seriously you have no one to blame but yourself.