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
