Why Am I Living in 17th Century England?

Almost everyone is at least somewhat familiar with the concept of “service” in a lawsuit: defendants are brought into a lawsuit when they are “served,” i.e. receive in-hand delivery of legal papers. The basic notion is that until the defendant is personally given a copy of the papers, legal proceedings against him cannot begin. Significantly, it does not matter whether the defendant actually knows that there is a lawsuit; nothing can begin until the defendant is “tagged” with the documents.

The American legal system traces the personal service requirement from the English common law system in place during the colonial period. The custom itself is rooted in an imminently practical and just notion: a court should not enter a judgment against a defendant who is unaware that a lawsuit even exists. The rule requiring personal, in-hand delivery was a necessary measure of the 1600's, where communication over distance was unreliable and there were no central listings of where people could be found. In short, when there were no good means to simply send a message to a defendant that an action against him was pending. While the conditions justifying the strict enforcement of the personal service requirement have changed dramatically, the rule remains in effect.

A result of this rule is that a defendant who is completely aware of a lawsuit can move the court to get rid of it (“quash it”) on the grounds that he was not properly served. Thus, we have the absurd spectacle of a defendant appearing in court to argue that the case should come to a halt because made nobody made him aware of that very case! The usual claim made by defendants is that the process server gave it to a neighbor and not the defendant himself. In these cases, the defendant is not simply asking for more time to prepare or a chance for a rehearing on an issue decided in default. If the judge buys the defendant's story, the case is treated as though it had not yet begun. The lawsuit is returned to square one; the plaintiff must get a new summons issued and have the defendant re-served.

Experienced litigants are well aware of this rule and often take great pains to avoid “knowing” about a lawsuit by, sometimes literally, running from the process server. At a minimum, the crafty defendant will frustrate service by simply refusing to open the door when the sheriff arrives. In one case, a husband who's wife had filed for divorce (they continued to live in the same house) wanted to avoid getting served with the divorce papers. To avoid receiving “notice” of the divorce he constructed a locked room in the basement where he spent most of his time so that he could hide inside his basement fort when his wife let the process server into the home.

This frequently necessitates the use of private investigators who employ a vast arsenal of tricks to locate a defendant and get within arms length to effect personal service. Many of these methods are of dubious legality and involve somewhat distasteful deception (one investigator I know pretended to be delivering a singing telegram to get a defendant to open his apartment door). Nonetheless, our strict adherence to an outdated rule means that these shenanigans are a fixture of our civil justice system.

A rule of law that allows Defendants to avoid responsibility for their actions by simply burying their heads in the sand and refusing to open their doors is offensive to a basic sense of justice. In our modern era, law enforcement and credit bureau databases can locate most anybody within minutes. A generally reliable postal service, telephones, oh and lets not forget the internet, make it pretty hard to shut out bad news if even a modicum of effort is put into informing a person of a pending lawsuit. Essentially, the means currently exist for clerks of court to reliably send out notice to defendants, without the need for our centuries-old game of legal tag.

Let me be clear, I am not in any way blaming lawyers who bring these motions on behalf of clients. As attorneys, we have an ethical obligation to use any rule to our client's advantage. Rather, the blame lies with a system of justice that continues to maintain a practice rooted in an era of carriages and petticoats in the age of the internet.

As it seems unlikely that personal service will be entirely abandoned anytime soon, I offer a modest proposal: modify the civil procedure rules so that a defendant claiming improper service can at most vacate any judgments and treat the case as though that defendant had just filed a proper appearance. If defendants know that feigning ignorance will gain them little or nothing, far fewer will choose to act like children by covering their eyes or building a fort in their basements.