The concept of social distancing was one of the defining characteristics of 2020. Given the rapid transmission of the coronavirus, it became common practice for people to stay at least 6 feet away from each other. Eventually, lockdowns were implemented to drastically lessen the risk of spreading the virus. The pandemic made everyone aware of the harsh realities that a global crisis can bring.
The legal profession became one of the most affected by this fact. They were plunged into uncharted waters without sufficient means of navigating through them. More particularly, the service of process was severely hindered in observance of the safety protocols that were put in effect. Consequently, this forced professional process servers and their businesses to a standstill.
Service of Process
Generally, courts are prohibited from exercising personal jurisdiction over a defendant unless they have been given proper notice of the court’s proceedings. This is stated in the Due Process clauses of the United States Constitution.
The service of process is essentially the practice that requires the plaintiff to give the defendant an appropriate notice in order to meet this rule. Only then will the courts be able to exercise their power to formally judge matters directed against a person.
Depending on the jurisdiction, rules governing the service of process may vary. These rules highlight how and when a recipient should be served. For instance, the courts of New York recommend that a subpoena must be delivered by a licensed process server five days prior to the earliest date of compliance.
Process Serving Businesses
Sending the legal documents through the mail is often not enough. The summons and complaint — collectively called “process” — must be given directly to the defendant or left with a suitable person at their home or place of business. This service may be performed by an adult who is not a party to the lawsuit or by process servers.
Process servers are professionals who make a living delivering court documents. Summons and complaints, as aforementioned, are legal documents crucial for a trial to begin. Multiple jurisdictions usually license and regulate process servers. There are certain process servers that specialize in delivering documents to defendants who are deliberately evading the service of process.
Hindrances to the Service of Process
The pandemic undoubtedly made the service of process more difficult for both the serving parties and parties to be served. With the closing down of businesses and potential health concerns, very few emergency protocols essentially tackled the rules of service.
If effective guidelines and policies were put in place at the onset of the pandemic, there would have been no need for the service of process to virtually cease. Certain problems, like a reported case early in 2020, might have been avoided as well.
This case involves an FBI agent named Darren Cox. Agent Cox was served a subpoena at his home in Arlington, Virginia by a process server. It was later insisted that the process server’s actions “jeopardized the health and safety of Agent Cox and his family” by increasing the risk of COVID-19 transmission.
Legal Guidance
Similar instances that are perceived as undermining social distancing orders and health protocols are detrimental to the systems of the court and the legal profession, in general.
Difficult as it may be to personally serve persons given the current circumstances, there are still other methods by which the service of process may be recognized as constitutional. Nonetheless, be wary of the differences in rules per jurisdiction.
It would be worthwhile to review the case of Milliken v. Meyer (1940). The case stated that the Supreme Court held the “substituted service may be wholly adequate to meet the requirements of due process” so long as he was given actual notice of the proceedings.
Business As Usual
Fortunately, with the manufacturing of a vaccine, the lockdowns in several jurisdictions have begun to ease. Surely process serving businesses will experience a surge as litigation ramps up and slowly return to normal.
The need for physical distancing and other guidelines will certainly still be in effect post-pandemic. For businesses aiming to reopen safely, make sure to establish policies that are in line with health protocols. Train employees to practice these policies diligently to prepare them for the new normal.
Likewise, proper equipment should be given to professional process servers. Masks, gloves, and other necessary sanitary items must be present at all times. Ensure that everything is well documented to guarantee the validity of the serve.
The previous year was definitely riddled with all sorts of unfortunate events. The legal profession was severely distressed and overwhelmed. In 2021, all of that is about to change.
