How to Serve a Defendant in a Lawsuit
One of the first things they teach you in law school is service of process. It’s a fundamental pillar of our legal system; courts don’t like when people get sued and don’t know about it. Service of process means giving the defendant a copy of the complaint and summons to appear in court, or in other words, telling them “You’re being sued”. Unfortunately, when inexperienced lawyers are starting out in their practice, good service can get lost in the mix. Since service is usually handled by the sheriff's office, it’s easy for an attorney to delegate the duty and forget. The problem is that without good service, a plaintiff’s attorney has no case. For an attorney and their client, messing up service can mean the difference between winning a personal injury case and malpractice.Service of Process 101
The basics of service are relatively straightforward but, like everything in the practice of law, the devil’s in the details. Service is a “bedrock of due process”. It’s our protection from being sued without knowing about it which is guided by the fundamental theory of fairness. Without service, the court has no jurisdiction over a defendant and therefore there’s no case. If the Defendant raises an objection to service and the Plaintiff can’t provide proof of service, the case will likely be dismissed. If the statute of limitations has run, then case is gone forever. You can see why this stuff is so important.
There are a few different kinds of service and each carries their own nuances:
- Personal service is most effective and the easiest to back up in court.Personal service is when a sheriff's deputy, or special process server, hands the Defendant a copy of the summons and complaint. The sheriff’s deputy then files proof of service with the clerk of court and service is complete - the case can commence. Courts prefer personal service because it leaves few loose ends and little ambiguity.
- Notorious service occurs when a copy of the summons and complaint is left at the Defendant’s residence with a person of “suitable age and discretion then residing therein”. Notorious service opens the door to many claims for defective service which can doom a case. For example, the process server serves a 12 year-old kid who claims the Defendant lives there. Unknown to the Plaintiff, however, the kid is friends with the defendant’s son and therefore not “residing therein”. Service is defective. There are countless examples of how notorious service can go wrong. A plaintiff’s attorney should be very wary of relying on notorious service in lieu of personal service.
- Service by publication is the least desirable of service options and rarely used in personal injury cases with a few exceptions. If a Defendant is actively evading service and the Plaintiff has diligently attempted to serve the Defendant, service by publication may serve as a means to get a default judgment. This is a useful tactic for the Plaintiff to utilize their own Uninsured Motorist insurance if they are unable to effectively sue defendant.
The best advice I can give to a new lawyer in regards to service is to be aware and we diligent. It’s easy, with mountains of work put on you, to miss which box gets checked on the service form. A good plaintiff’s attorney learns how to manage the big picture and the small details effectively. Check each case to make sure service was properly made and, if it wasn’t, be super diligent in getting it corrected.
Some say the best way to learn is from your own mistakes. I’d like to think the best way to learn is from the mistakes of those who have gone before you, it hurts less. So learn from those who have made service mistakes, be aware, be diligent, and do the best for your client.Common Service Pitfalls
New attorneys can find themselves in trouble by falling into some common service of process pitfalls.The Wrong Defendant
In a Georgia car crash or personal injury claim arising out of a car accident, barring some exceptions, the complaint and summons must be filed on the other driver, not the insurance company. I was talking to a woman last week who tried to handle her own car accident case Pro Se. She wrote up a complaint and summons and had it served on the defendant. The problem was she filed the complaint against the wrong defendant, the insurance company. Unfortunately, the woman was barred from re-filing because the statute of limitations had run by the time she figured it out. It was a hard lesson to learn and a good reason for those hurt in car accidents to reach out to an attorney for advice.
An exception to not suing the insurance company is when the Plaintiff is going after her own insurance carrier for Uninsured Motorist coverage. In this case, the Plaintiff must serve the insurance company’s registered agent, not an individual agent and not by publication in addition to suing the defendant driver.Georgia Non Resident Motorist Act
Another tricky area is correctly completing service on a nonresident under the Georgia Nonresident Motorist Act. Under the act, a nonresident motorist who causes a wreck in Georgia can be sued either in the county of the accident or in the Plaintiff’s home county. But how about service of process?
The best way to explain is by example. Imagine your uncle lives in South Carolina and he’s driving to Atlanta for Thanksgiving. By driving on Georgia highways, he’s availing himself to Georgia law. As he’s driving on I 85 South he causes an accident. The injured party can sue your uncle either in the county in which the accident took place or in the Plaintiff’s home county. By driving on Georgia highways, your uncle also “appoints” the Secretary of State as his authorized agent. So in order to perfect service, the injured party will have to serve the Secretary of State a copy of the complaint and summons and also send your uncle, by registered or certified mail, a copy of all suit papers to his address in South Carolina.
The last mistake, and possibly the most common, is failing to make timely service near the end of the statute of limitations (SOL). The SOL for personal injury claims in Georgia is 2 years. That’s 2 years from the day of the injury. By statute, service made within 5 days from filing the complaint will “relate back” to the time of filing. If service takes longer than 5 days, the burden shifts to the plaintiff to exercise “the greatest possible diligence” to perfect service as quickly as possible.
Let’s talk about “the greatest possible diligence” for second. There’s nothing that pisses off a judge more than a lazy lawyer. If you are anywhere near the running of the SOL when you file a case you better be on top of making sure service is properly made. The defendant can seek dismissal of the case as time barred if service is made any time after the SOL runs. The only way a Plaintiff’s attorney can keep that from happening is by showing “the greatest possible diligence” in getting the defendant served. That means hiring a PI, going to his neighborhood and talking to his neighbors, calling his job, doing whatever it takes to perfect service. Judges will appreciate and respect an attorney who takes action and will generally rule in their favor.Takeaways
Here’s what a new attorney should remember from these articles on service:
Know the law - Take some time to study the nuances of service of process in Georgia especially as it relates to personal injury. Being a nerd about the law can save you time and headaches and will make you a much better lawyer.
Know your timeline - Have a method to know each case’s timeline so you are aware as deadlines approach. Getting Things Done is a great tool for managing time and increasing productivity.
Act with diligence - Don’t be a lazy lawyer. There are way too many of them out there. Care about your cases. Act purposefully. Do the best for your client.
Ask for help - It’s not easy starting out in a law career. We know that. There are many experienced attorneys out here who are willing to help out a younger attorney. Reach out to a more experienced attorney if you find yourself in over your head or just for advice.