Electronic Service of Process - Long Overdue Disucssion!

For some time now I have been writing on my Blog and on my facebook group SOPLF about Electronic Service and the challenges facing the industry, so much so, that I have made some in the process serving profession uncomfortable. A small group of individuals would rather I not provide my thoughts on these topics. A few have even seen fit criticize my motives for doing so on the social media platforms and list-serves. They have every right to do so. I just wish they were willing to encourage folks to think for themselves rather than discouraging a robust discussion of the issues facing the industry.

 

CALSPro gets it!  CALSPro is encouraging all in the industry to attend the California Association of Legal Support Professionals (CALSPro) annual conference later this month in Lake Tahoe, NV. Almost the entire conference is geared toward a robust and thoughtful discussion about the threats and opportunities facing the industry. 

 

Why would anyone want to discourage a discussion and exchange of ideas on what is arguably an important issue facing the private process serving industry? These folks believe that the threat of Electronic Service is "much a do about nothing".  Too bad most in the national leadership don't appear to get it. The only time they did was when I was involved and I did all the heavy lifting.  But I digress. 

 

Maybe they just don't like that someone other than themselves is expressing their views.   In my opinion that kind of attitude is irresponsible especially for those that might be in a position of authority for the private process serving profession. 

If nothing else I have gotten their attention and hopefully they are starting to acknowledge that we as a industry need to start paying more attention to electronic service of process and other challenges.  My intent all along has been to raise awareness so that the those in the industry  start to formulate strategies to help insure a path forward.

I will continue to seek out information about this and other challenges facing the industry so that process servers everywhere can make up their own minds and will hopefully be more informed.

 

The commentary and opinions expressed here are mine alone and not that of CALSPro or any other group or organization.

 

by Jeff Karotkin

 

Do an associations Bylaws matter? Do Robert's Rules of Order matter?

I for one think they do. 

The Bylaws are the constitution. They represent the framework for all affairs of the organization.  They help guide and govern an organization or association.  Bottom-line they are part of the glue that holds everything together.  Typically associations recognize Robert's Rules of Order to as the parliamentary authority that set forth the rules not specifically addressed in the Bylaws and are considered legally binding by associations that have adopted them.  NAPPS has a formal set of Bylaws and has adopted Robert's Rules. 

Yet for some reason NAPPS appears to have ignored its Bylaws and Robert's Rules when it comes to its last annual conference.  Either the folks running the association choose to violate the Bylaws or they just don't understand them.  At the end of the day it doesn't matter if they choose to ignore them or if the leaders are ignorant.  What matters is they (the bylaws and Robert’s Rules) MUST be complied with.  

I am referring to the election of Mr. Couch to the board of Directors.  There is no dispute as to his eligibility according to the associations Bylaws.  It has been acknowledged by all that have looked into the matter that he was not eligible.  I am told that the leadership or NAPPS sought a parliamentary ruling after the breach of the Bylaws was realized. 

It would appear based on the fact that Mr. Couch is still listed as a board member that whomever advised NAPPS may have told NAPPS that the timeliness to raise a Point of Order had passed.  If that was the advice they leaders received I submit they got bad advice.  If you refer to Roberts Rules and read the timeliness requirements for a Point of Order it says that a Point of Order must be raised promptly at the time the breach occurs. However this same section of Robert's goes on to list exceptions to this requirement.  The exception that I believe applies is as follows. See Page 251 of Robert's 11th Edition:

"The only exceptions to the rule that a point of order must be made at the time of the breach arise in connection with breaches that are of a continuing nature, in which case a point of order can be made at any time during the continuance of the breach. Instances of this kind occur when:

a) a main motion has been adopted that conflicts with the bylaws (constitution) of the organization or assembly" 

 A beach occurred, it continues to occur and in fact the breach conflicts with the Bylaws. 

In further support of this breach needing to be addressed by the members, I have also reviewed the section of Robert's that governs elections; specifically the rules for contesting the announced result of an election.  They allow an election to be contested by raising a point of order.  And as stated previously that point of order must be timely except where the breach conflicts with the Bylaws and where the breach continues.  Page 444 and 445 of Robert's specifically address when a point of order contesting an election can be raised.  On page 445 is says:

"Other exceptions to the general timeliness requirement are those that come with the five categories listed on page 251, lines 9-23, in which cases a point of order can be made at any time during the continuance in office of the individual declared elected.  For example:

If an individual does not meet the qualifications for the post established by the bylaw, his or her election is tantamount to the adoption of a main motion that conflicts with the bylaws."

In order to fix this breach a member must raise a point of order contesting the election.  It is the correct and lawful thing to do in order to address the breach of the Bylaws.   I have no axe to grind with Mr. Couch; I have heard nothing but good things about the man. This isn't really about him; it is about following the rules and doing the right thing.

I suspect a simple mistake was made when it was assumed by all members present that Mr. Couch was eligible to hold office.  Now is the time for a simple solution to be applied. 

This issue is ultimately about credibility.  If NAPPS continues to ignore this issue it will represent another black eye for an industry whose image in the media of late has been less than perfect.  Or NAPPS can continue to play the game like Calvin and Hobs.  Seriously... you either have rules that matter or no rules at all!

 

by Jeff Karotkin

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.      

Service of Process on Foreign Corps in the U.S.

United States Senate Bill S. 1946 introduced in the 112th Congress: 2011-2012; would require foreign manufacturers of products imported into the United States to establish registered agents in the United States who are authorized to accept service of process against such manufacturers. This is the third time that such a bill has been proposed in Congress. I believe that this bill deserves to be supported by all the state and national associations. If this bill were passed it could mean a new stream of process to be served in the United States.

In the past NAPPS took a neutral position on similar bills. Neither support or oppose; why? Without getting into the merits of the bill and if it is enforceable, why wouldn’t it be a good thing to allow process to be served in the U.S. on foreign entities doing business here? It seems to me that could generate a lot more work for process servers here. Those who are heavily invested in serving foreign process would naturally oppose this bill.

What do you think?

Remember you heard about this first from SOPLF! The associations follow this blog, my SOPLF group and ServeNow if they want timely, actionable and relevant process serving related content.

Jeff H. Karotkin
jeff@karotkin.com
Facebook group : http://www.facebook.com/#!/groups/serviceofprocess/
Twitter: http://twitter.com/#!/SOPLF

Lessons Learned from a Lifetime in State and National Process Serving Associations

I am encouraged by the number of new state process serving associations that have been established recently. Congratulations on having the courage and fortitude to roll up your sleeves and do the hard work necessary to create meaningful results for your industry. From where I sit it appears that Alabama, Illinois and Colorado to name a few are off to great start. Keep up the good work.


These developments are exciting and fun to watch. As I observe the successes of these associations it got me thinking about what works and what doesn’t when one is trying to work for the good of the association. I have the benefit of experiencing both the good and the bad firsthand - having literally grown up in the process serving industry/profession - so I thought I would share my experiences, thoughts, and concerns in the hopes that the new and established associations might benefit from them.

Learning the ropes as a CAPPS member

I will never forget my first annual meeting as an adult. Yes, I attended one or two as a minor over 30 years ago thanks to mom and dad dragging us kids along. My first annual conference as an adult was a CAPPS (now CALSPro) conference in 1984 or 1985. I have a very clear recollection of the business meeting and how impressed I was with the leaders of the association and how they gave their time and energy for the good of the industry. I came away from that meeting thinking that anyone who does not get involved and take an active role in helping to shape the future of the industry was foolish; that only good could come from such a collaborative effort. I was proud to call myself a CAPPS member and I wanted to know where to sign up to do whatever I could to help make a difference.

I did sign up and started attending board meetings, I agreed to be an area governor, and I joined a committee or two. A few years later I was elected to the board. At first I was very quiet, I saw my job as the “newbie” to listen and absorb as much information as possible. I hoped to contribute in my small way to create value for the members. Things were good.

It did not take long before I was exposed to the bad. I do not remember if it was my second or third year on the board but there was an issue that became very divisive within the organization. So much so that several members started a recall petition of certain board members. The issue had to do with the courts adopting Fax Filing in CA. Many members apparently felt that because there were several board members who were all active with the formation of a new company (Fax Court Filing not to be confused with Fax & File), that posed a potential conflict and they sought to recall all of those board members. Long story short, I was one of the individuals targeted for recall. I quickly became disenchanted with the notion that we were all working for the common good of the industry and that this nonsense was not what I signed up for. So I resigned in principle rather than take sides and fight with my fellow members. A few years later I got involved again after tempers settled.

Over the years CAPPS accomplished a lot and became an important and meaningful force in the process serving profession. To this day I am so honored and proud to have been a small part of CAPPS’s (now CALSPro) successes. One of things that made CAPPS successful was its willingness to nurture and encourage the younger generation to get involved and take an active role. It was as if the founders of CAPPS knew that they needed a succession plan in order to preserve and grow the association.

One of the most important things in my opinion that CAPPS did several years ago was to acknowledge that it needed to question what it stood for and what its goals and objectives were both long and short term. Doing things the way they had always been done was no longer going to win the day. The association needed a goal and more importantly a plan for executing on that goal. So it gathered the leaders of the association, committee chairs and other interested parties for a strategic retreat. A two-day meeting with a goal to re-cast the goals and objectives of the association was held. The time and money spent to undertake this endeavor was money well spent and among other things the California Association of Legal Support Professionals (CALSPro) was born. To this day CALSPro continues to thrive because its leaders past and present understood what it would take to ensure the association and industry in CA would have a meaningful purpose and future.

I credit vision, courage and the leadership of the founders with helping create the environment where the association could evolve and prosper.

Getting involved on a national level with NAPPS

Leading up to the CALSPro evolution I decided to get active with NAPPS, figuring that what worked for CAPPS would work for NAPPS. It took time to get accepted but I persevered, having learned from my early years in CAPPS that things are not always going to go your way and that you need to hang in there.

Despite several challenges, I found my niche as the technology chair. I also found out the hard way that NAPPS and CAPPS, though similar in many ways, operated very differently. There was not the same willingness to nurture or even accept that others might have ideas worth considering. Rather, you learned that if you were going to be active in NAPPS there were two paths to follow. The path of least resistance was to accept your role and in time you would raise through the ranks and perhaps you would chair an important committee.

The other path was less traveled for good reason. It was fraught with potholes and roadblocks.

I found myself torn as I tried to be accepted and as I tried to create change. Both were difficult. As a result I found myself on and off the NAPPS board a few times.

When I decided I wanted to be president, I knew I would have to play nicer. At some level I decided it was more important to play long if I wanted to make a difference. I rationalized that the only way I was going to be able to make a meaningful difference was to do so from within the organization and that meant toning down my approach. Once president I was naïve because I actually thought that I had earned the respect of some of my fellow board members. I thought that I could help shape the future of the organization as president. Instead I found myself constantly on an island isolated aside from one or two supporters on the board. Because there were no clearly defined goals and objectives for the association each board member had their own view of what was important. As a result we were all pulling in different directions.

Those two years as president were not fun. I did manage to make a few changes and hope that I influenced a few people.

Now, for the first time in decades, you have a crop of new leaders coming through the ranks and the old guard is finally getting the message that they need to loosen their grip and let the association and industry evolve. If I played even a small role in helping to create the environment for this evolution to be possible then I am proud of my contributions.

Lessons to help all associations evolve and prosper

It is not always going to be easy and more than likely there will be significant challenges. Whether a new association or old, I think either can benefit from the experiences of those that came before.

My hope is that NAPPS and the new associations will take my observations in the manner they are intended - constructive - and apply the lessons learned.

Not that anyone asked but I am going to offer my specific advice anyway.

1.Clearly define the association’s goals and objectives both short and long term.

2.Clearly articulate those goals and objectives to the membership so as to ensure everyone is pulling in the same direction.

3.Create a plan for executing the stated goals and objectives.

4.Constantly take stock of your progress and be willing to take corrective steps when necessary to get things back on track.

5.Periodically reconvene the leaders of the association to re-examine the goals and objectives so as to ensure they are still relevant. It is important that you guard against group-think and include non-board members when you define the association and what it hopes to accomplish.

6.Celebrate successes and learn from your failures. Don’t give up.

7.Constantly nurture and encourage the future leaders of your organization.

8.Challenge yourself and the organization to question the status quo.

9.Be open to and embrace change. Not for change’s sake, but as a way of encouraging the growth and evolution of the organization.

10.Recognize when it is time to get out of the way and let others lead. Have a succession plan.

NATIONAL PROCESS SERVERS ASSOCIATION LAUDS N.Y. DECISION

“The National Association of Professional Process Servers (NAPPS) wishes to extend its congratulations to the New York State Professional Process Servers Association (NYSPPSA) in its agreement with the New York City Department of Consumer Affairs to a 30-day extension before implementing the newly adopted process server rules and law for New York."

“NYSPPSA worked closely with the New York City Department of Consumer Affairs in coming to this agreement and we are pleased that the Department has also agreed to continue negotiations as both sides have a shared goal in providing quality services to the legal system and ultimately justice for those who engage that system."

Posted by Jeff Karotkin