The Rights of the Person Being Served Process service is a very important part of the legal system. In fact, this step
is so critical that many cases are thrown out because of improper service. But
why is it so important? What should the process server know in order to protect
the recipient's rights? Why exactly must process service be carefully regulated?
Process service helps to protect the legal rights of someone who is named in a
legal proceeding. Although the following does not constitute legal advice, presented
here is a general guide to understanding the rights that are protected by process
Due Process of Law
At its heart, process service protects
the defendant's Constitutional right to due process of law. In some countries
at some times throughout history, defendants were not entitled to know when court
proceedings were instituted against them. A plaintiff could potentially sue a
defendant and win, with the defendant having no opportunity to defend himself
against the allegation. Sometimes the first notice was given by the officials
who turned up to collect money and property to settle the debt.
to avoid this possibility in the United States, the Constitution requires a procedure
known as due process of law. Both the Fifth Amendment and the Fourteenth Amendment
require due process, with the Fifth Amendment referencing federal courts and the
Fourteenth expanding it to individual states.
Due process has become extremely
complicated in its interpretation. Specific advice and interpretation should be
undertaken only with the assistance of a qualified attorney. However, in general,
due process can be seen to represent fairness. In regards to process service,
it can be seen as the right of an accused person to respond to the accusations
against him or her.
The person who is being
served process has the right to know exactly what the charges against him are.
He has the right to obtain an attorney to represent him, and he has the right
to develop a defense. He also has the right to countersue the plaintiff, provided
that the countersuit is related to the original lawsuit. If he wishes, he may
also file a new suit against the plaintiff on unrelated charges. In short, the
defendant is entitled to "have his day in court."
While the actual act of serving process is designed to ensure the
Constitutional right to due process, the process server must be careful not to
infringe on any of the recipient's other rights. This is why process service is
so highly regulated. Depending on the jurisdiction, the recipient may have the
right not to be served on Sundays or holidays, at certain times of day or in certain
locations. Special regulations may apply to serving process at the recipient's
home as opposed to in a public location. The process server is responsible for
knowing all of the applicable laws and regulations and acting in a legal and ethical
The Bottom Line
The Constitutional right to due process
of law makes the act of process serving extremely important. Proper process service
is one of the cornerstones of the legal system, and improper service can cause
a court case to be thrown out. The process server must be careful not to infringe
on the rights of the person being served, including those rights that are provided
by federal, state and local law. Always consult with a qualified attorney when
in doubt, and be sure to stay aware of changes in the law.