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