|
#1
11th February 2010, 01:19 PM
|
||||
|
||||
|
"You've been served" - why all the bullshit?
I admit that this question is based on what I've seen on TV, so if it's completely unfounded then by all means say so.
I've now seen quite a few times in films and shows set in the US people being served legal notices i.e. notice of divorce, being sued etc. But more often than not the person having the notice handed to them is almost tricked into taking it, like in a TV show I saw recently where a woman stumbles over and the guy being served stops to help her and as she stands up she hands him the notice and walks off. In "Burn after reading" one of the main characters has his divorce notice served by someone pretending he was and old university friend, which he did so that the character would say his name. Does this happen? Why? I get the feeling it's not essential to do it like this as in another show I've just seen two people have been served notices just by asking their name and then handing them the notice (and of course saying "You've been served"). So what's the 
|
|
#2
11th February 2010, 01:30 PM
|
||||
|
||||
|
Uh oh. A legal question.
*ducks* (Ok. I'm just kidding. But the first one to say "hire a lawyer" goes in the box for 48 hours)
|
|
#4
11th February 2010, 01:33 PM
|
||||
|
||||
|
As we all know, the plural of anecdote is data,
 so here's my story.I've been served once and only once in my life. The day before a lawyer called me telling me they wanted me to be a witness in a trial. I told him I honestly didn't remember all that much from the event in question as this was some six months after the fact, but he said he wanted me anyway. The next day, sure enough, someone showed up at my door with some court-y piece of paper. I was served.
|
|
#6
11th February 2010, 01:50 PM
|
||||
|
||||
|
Quote:
I think the myth is if you avoid the person serving the papers you can avoid or postpone going to court. This is not always the case though. The last time I had to take someone to court, all I needed to do is prove reasonable attempt of service. This is basically a certified, signature letter handled by the post office. If they refused to sign to receive the letter all I needed to do is provide the court proof it was their current address and that the letter was sent but returned. If they decided to try and dodge signing for the letter and didn't appear in court it would have meant a win in my case - which it was anyway.  When I served my ex-wife divorce papers I had to have a third party (my friend) attempt the service. If she has refused to take the paper all he needed to do is drop it at her feet and verbally inform her of what it was. Same of she refused to open a door or something. On the paperwork my friend signed he would swear he took the correct steps in serving the person the documents. If I recall, there was even a place to state the details if they were hostile.
|
|
#7
11th February 2010, 02:22 PM
|
||||
|
||||
|
Primus, where civil proceedings (not criminal) are concerned, they are trying to:
1. Aggravate the plaintiff; and/or 2. Delay the clock from starting on a default judgment against them. Once a person is served notice of a proceedings against them, a plaintiff can apply for default judgment if you do not file a Notice of Defense in the matter within the prescribed time (60 days on average, IIRC). Each court of law (divorce, small claims, etc.) has their own Rules of Court which dictate (among many other things) how service shall be made against someone (via single-registered or double-registered mail, or personally, all of which requires an Affidavit of Service* to be filed) and the time allotted to respond before a default judgment can be sought. In cases where an individual cannot be located to serve notice of proceedings against them, a plaintiff can ask the court to grant an order for substitutional service--usually by placing an advertisement/notice in a newspaper serving the last known address. Does it happen? All the time. *The Affidavit of Service can be found on the back of standard forms for small claims court, to a separate document being drafted by a paralegal who swears the plaintiff was served notice by SR or DR mail, affixing the receipt to the document as an Exhibit. /Canadian perspective
|
|
#9
11th February 2010, 02:44 PM
|
||||
|
||||
|
Quote:
Most of the time the actual plaintiff won't hear about the nonsense the defendant is doing.
|
|
#10
11th February 2010, 04:45 PM
|
||||
|
||||
|
A former coworker of mine was served to go to court to be a witness regarding something that happened in our department (I work in the health care field). I was there but am apparently low enough in rank where they didn't ask me about it further than the paperwork regarding the original in-house investigation (I also didn't have anything to do with it, so they didn't ask further).
She was served and said "ok, sure." to being served to be a witness. The guy serving her thanked her and told her often people get really pissed and scream and yell and threaten. She asked what he does in some extreme cases and, in our region at least, to legally serve someone who isn't willing you have to physically touch the envelope or paperwork or whatever to the person. I thought it was odd, but eh, whatever. My other coworkers whose presence was required were all just notified by legal paperwork in interoffice mail.
|
|
#11
11th February 2010, 05:08 PM
|
||||
|
||||
|
Damn you, reality, for not living up to my expectations of quick-witted, zany legal service gambits involving Zepplins and people disguised as elevator repairmen!
|
|
#12
11th February 2010, 05:10 PM
|
||||
|
||||
|
Victor, there are plenty of people who know what's coming and actively avoid being served. They think they're simply being a dick and annoying the plaintiff but they fail to realize (or they do realize and don't care) that the plaintiff can ask for costs to be awarded, which the avoidant plaintiff drives up by making the lawyers touch the file more than necessary or causing a process server to make multiple attempts on them. It's most common in small claims and divorce courts.
A plaintiff with a lawyer on record will only usually only hear of service problems if it comes to seeking an order for substitutional service. Sheriffs in Canada don't perform exactly the same duties as those in the U.S. They do serve court documents, but I believe that's for Orders to Appear as Witness in criminal court. I don't recall that lay persons can contact them for process service in civil or small claims courts. Last edited by Taur; 11th February 2010 at 05:14 PM.
|
|
#13
12th February 2010, 12:47 AM
|
||||
|
||||
|
On holiday in the States a few years ago, I watched Serving Sara, which was an awful RomCom which involved this as a plot device. IIRC, a big play was made of noting the time when the papers were served, by taking a photo of the serving taking place, with the server's watch in shot. By the very fact that it appeared in the film, this is almost certainly a complete fabrication.
|
|
#15
12th February 2010, 05:28 AM
|
||||
|
||||
|
I used to serve eviction and other papers for a law firm in D.C. In general, service is fairly simple, even when the guys is expecting it. Usually I'd just walk up to whoever it was (I susually had a good description, occasionally a picture) and say "Hi [Defendant's Name], this is yours." 99 percent of the time they would just take it from me. Those few who were bright enough to not take it were considered legally served if I left the paper with them, even on the ground. Those that hid or refused to answer doors were legally served by my affixing the service to the front door of thier home address.
The fallacy that most people beleive is that the paper has to be put in your hand, and that's not correct at all. Attempting service is what counts. And when you actually serve someone, it can become ugly and/or frightening sometimes, depending on the neighborhood and what the case is about.
|
|
#16
12th February 2010, 05:39 AM
|
||||
|
||||
|
Getting properly served with papers and notice is part of your due process rights. If there's a defect in service it's a strong defense to the action. The rules for service are different for every state. Most states are fairly modern, permitting service by publication/substitution etc etc but a few holdouts still require personal service in certain cases. AFAIK New York is one of the ones that requires personal service, meaning the summons has to actually touch the person to be served, for alimony actions.
There's a legend about a process server that tracked his quarry onto an airplane, sat next to him until he was sure the plane had flown over the New York state lane, then turned to him and put the summons in his lap. Dunno if it's true though. Must have been alot of alimony.
|
|
#17
12th February 2010, 06:00 AM
|
|||
|
|||
|
Another recent anecdote:
I recently initiated divorce proceedings against my wife (we live in Massachusetts). Due to the fact that she If she had hired a lawyer my lawyer would simply have sent the documents to her lawyer's office and that would have counted. Since she decided to make it part of the big game she thinks is being played on her my lawyer instead had to hire a constable to bring the papers to the house. He didn't leave them there the couple of times he got there and she wasn't home (or didn't answer the door), he had to actually hand them to her. I don't think she tried very hard to actively avoid him.
|
|
#18
12th February 2010, 08:08 AM
|
||||
|
||||
|
Sometimes it can get very ugly--example being a situation I ran into as a courier. I thought it was no big deal, got an envelope to deliver to a house and thought nothing of it until I was walking up to the door and heard a shotgun racking inside the house and a guy yelled at me to GTFO his property. I had no idea what the fuck was going on so I announced I was a courier with [Company name] and that I had a package for Mr SoandSo and the guy just screamed louder at me and threatened to shoot so I bailed tout de suite. Got on the horn with my dispatcher and she called the client--turns out the guy in the house was in a lawsuit with the client and the motherfucker was using us as a process server and hadn't let anyone know that. My dispatcher was pissed, let the guy no in no uncertain terms that we don't DO that sort of work and charged him a huge fee for the attempt--which I got half of.
So the real problem isn't anything to do with the general process of serving papers--that's pretty cut and dried. The problem is that sometimes people involved in legal stuff are batshit crazy and think if the person holding the papers can be forestalled somehow the whole legal problem will go away, which is fucking ludicrous, but that's batshit insane person thinking for ya.
|
|
#19
26th February 2010, 07:24 AM
|
||||
|
||||
|
This reminds me of the time that I was young and stupid. Today, I am but merely stupid. But when I was also young I was involved with the buy five thousand CDs for a penny scheme and was quite surprised when I continued to get CDs that I didn't want via the real mail along with bills for thousands of dollars. I ignored these real mails. Then they sent registered mail that allegedly said that I allegedly owed them thousands more dollars, but being the clever clogs that I am I refused to accept or sign for these registered real mails. The bottom line is that I eventually paid. The lesson is that you are fucked with regards to being or have been served, no matter what and no matter how little drama is involved in the "serving" process. That said, I really enjoyed the movie "Pineapple Express," and its process-server protagonist.
|
|
#20
26th February 2010, 08:45 AM
|
||||
|
||||
|
Quote:
I was in a similar situation to you, but in my case, my (slightly naive) wife thought it would be nice to sign me up to a book club.  Same deal as you; I got loads of stuff I didn't want - "No obligation to buy!" - and eventually got fed up of mailing it back so didn't bother. They chased me for hundreds of pounds and I eventually told them to present me with any paperwork which showed I had entered into any sort of contract with them. So they did. The signature? My wife's, of course. Despite the fact that this effectively made the contract null and void from day one, they then they started threatening her for money. Except the joke was on them - by this time she was dead. So, um, yeah. Not exactly a victory there, but it definitely shut them up. P.s. Thank you for the facepalm icon, whoever is responsible for it  .
|
|
#21
26th February 2010, 09:29 AM
|
||||
|
||||
|
Ouch. Not exactly a victory, indeed. Cheers, mi amigo.
|
|
#22
26th February 2010, 10:47 AM
|
||||
|
||||
|
On balance, Mrs. Mako would have found it hilarious in hindsight.
I won't go into it here, but she deliberately set up loads of awkward (future) situations when she knew she was on her way out. Every time I trip over one, I remember her with the fondness I know she intended.
|
|
#23
1st March 2010, 07:02 AM
|
||||
|
||||
|
In lawschool we read about a situation where a process server was having a hell of a time serving one person in particular; I can't recall the jurisdiction or what the problems were, it doesn't matter.
Anyway, what he eventually did was to watch the guy's apartment for a few days & discovered that the guy often came out onto the balcony for a while in the morning, then would go back inside but would leave the slider open. Just inside the slider was a table, on which was an empty fruit bowl. The recipient's apartment was on the 2nd or 3rd floor. The server decided on a plan, which evidently was the only way he could successfully serve the guy. He went home and rigged up a climbing rig and rope from a tree in his backyard and practiced for a couple days swinging back & forth in front of a window to his house, and kept lobbing rolled-up papers through the window until he was able to land them in a bowl in his kitchen with some accuracy. Eventually he goes back to the apartment building, sets up his rig from the balcony above, or maybe the roof of the building, and waits for the guy to leave his balcony and walk back inside. He starts swinging, tosses the papers through the slider, and lands them perfectly in the fruit bowl. You've been served.
|
|
#24
2nd March 2010, 12:42 AM
|
||||
|
||||
|
Couldn't he have, you know, just knocked on the guy's door and (if he didn't answer it) leave it on the mat shouting "you've been served" through it?
|
|
#25
2nd March 2010, 04:20 AM
|
||||
|
||||
|
I think the guy was expecting him and wouldn't answer the door, or something. I read about it something like 15 years ago, so I've forgotten some of the more mundane details. Swinging from a rope and tossing the papers through an open door into a fruit bowl- that's the memorable part.
|
|
#26
2nd March 2010, 05:41 PM
|
|||
|
|||
|
Non-professional process server here. You need to know who you are serving. Adult came to the door of residence is sufficient for substituted service, but if I'm just out on the street you are only pretty sure it is me, so I want to say in my declaration of service that you identified yourself. This is very rare. We try to get them at home or work.
|
|
#27
2nd March 2010, 07:54 PM
|
||||
|
||||
|
Another anecdote here, but a friend of mine was trying to serve her ex-boyfriend some sort of legal papers- not sure if it had to do with the lease (they had lived together) or something entirely different, it's been a while.
Either way, he wouldn't answer the door and this was in a state (NY) where it had to be personally served to him. So they followed him to the bar he frequented and served him while he was sipping his pint. I'm sure that put a damper on his evening festivities.
|
 |
|
|
Linear Mode
