Proper service of process is an essential step in most litigation whether criminal, civil or administrative. This certainly would include summons, subpoenas, court orders and various other documents necessary to provide sue process notice to the parties of an action at bar. Poor or improper service can change the outcome of these proceedings sometimes resulting in extreme and/or irreversible detriment to those seeking justice or provide a procedural escape route to another not so deserving. A very simple example is the trial subpoena that either is not served timely or not at all on a critical witness.
This place the attorney in the position of arguing to have a deposition admitted as testimony, should a deposition had been take, or arguing under the evidence code pursuant to witness not available all of which is a very slippery slope (and, picking up that “five hundred” pound phone and placing Lawyers Mutual on notice of an impending claim). Proper preparation is critical as to the pleadings and timing of the service. However, the one factor that is not under definitive control is the availability and location of witnesses when they are needed for testimony or to be served with documents bringing the under the jurisdiction of a particular court or administrative body.
First Things First
Communication with legal counsel is extremely important. The proper name address, appearance date, time and location should be double checked. It is the policy of many investigative services organizations to review the service package before delivery. Many times it is the investigator that was involved in the research relating to the case serving the documents as they know the witnesses and parties, what they look like, as well as their attitudes concerning willingness to testify. They know the facts of the case and can certainly review a subpoena duces tecum for the requested documents and point out items that may be missing.
A current address is certainly of great value. How many times have we all made multiple trips to a residence only to find on the eve of trial that the witness has moved leaving no forwarding address? This is exactly why an experienced investigator will ask for a contact or relative as part of the interview process. Sadly, missing witnesses are not found in a timely manner which can have an effect as set forth above. Thus, it places the investigator into a skip trace setting that becomes somewhat frantic and expensive at the last minute. The number one rule is to compel counsel to start early on getting witnesses or parties under the jurisdiction of the court.
First Time Contacts
So, the investigator has never had contact with the witness or party. The first visits to an address, home or work may be fruitless. The investigator should note vehicles, license plate numbers, state where licensed. Vehicles can tell many stories. There may be signs or stickers denoting a place of employment or self employment. Documents, paper and things in plain sight can-disclose employment, children and if there is a spouse. This would mean the children and spouse may be around early in the morning departing for school. How old are the children? The toys, size of bicycles and footprints are of value. It does seem that children that are older are much more likely to be involved in after school activities and therefore the parent(s) just might not be home in the evenings.
Animals are a very good clue because they must be provided care daily. Evening service is best in these situations.
Tire tracks are helpful if available. They depict the type of vehicle such as a truck, comings and goings, how many vehicles and how fresh the tracks are will disclose how often and when the party is coming or leaving home. This works very well in rural settings, dirt roads and snow country.
How about rural areas? Skillful investigators will check for a forwarding address at the local post office on the trip back if no contact can be made. Sometimes these rural postal clerks will voluntarily talk about the party and provide a place of employment, new address and so forth. Not rural? A trip to the post office that handles forwarding addresses for a particular zip code should be visited. It is best to telephone the post office first because in congested cities there can be several postal annexes for one zip code, but only one provides forwarding addresses. Make sure to bring the service documents to show the postal clerk along with the proper request form in compliance with your state’s statutes the Code of Federal Regulations 39 CFR. 265.6(d)(5)(ii).
We all have been faced with the dreaded post office box number as the only address. A request under 39 CFR 265.6(d)(5)(ii) will allow an investigator to obtain a physical address for the purposes of service of process. Once the physical address has been obtained, some investigators have another form filled out for a forwarding address on the physical address just provided to be extra cautious as at times, the physical address is not current. A box owned by a business is fair game and the information as to the physical address is far easier to request – verbally and asking to look at the application. If the physical address is not current, the investigator can simply return to the postal clerk and ask that mail be held while an update notice is placed in the box by the clerk. If the clerk is cooperative, they may even call the investigator when the new information is provided by the box holder.
Another way to catch a witness is to call the local sanitation service for the address being worked. Then the investigator can wait either in the evening or early morning for the party to exit the residence to set out the trash bin. Of course, some of these methods assume that the person is avoiding service – which we all know how uncommon that is!
One at times has to be part mountain goat to access some properties these days. However, a simple three step folding ladder can overcome many situations. The law is clear on these matters, and a person legally authorized to serve civil or criminal process has an absolute privilege to enter property to deliver legal documents. A “no trespassing” sign is not valid. However, a sign some crazed human being posts stating “the use of deadly force is authorized” should be eyed with appropriate caution. Perhaps waiting for someone to exit would seem more prudent.
In more urban settings, the investigator may be faced with the community that uses remote control devices or punch in key pads to activate a gate. In these cases, it is best to wait until a resident enters and follow them right on through with the car. Anytime after 5 p.m. is typically a good time due to the amount of traffic and the server can just slide in with the traffic flow. Then of course there is the situation of the full fledged guarded premises with a uniformed chap waiving vehicles to stop. In this case, explain the law, if such exists in that particular state and the purpose of the visit is to deliver official court process. Unfortunately, the guard may call the resident asking for permission to allow access or make the call after to warn the homeowner of what is approaching. California Code of Civil Procedure 415.21 et. seq. sets fort that that a (manned) gated community must allow access to a registered process server or one that is
a licensed private investigator in keeping with California Business and Professions Code Section 22350 et. seq. In the same respect, federal law relating to appointed and other process servers cannot be interfered with can be found at 18 U.S.C 1501.
As a last resort, look for a way in other than the gate. A stream or lake may be a good point of access or a hiking trail. One enterprising investigator recently served a very wealthy man living a few doors from John Elway (Denver Broncos, retired QB) by turning off of a road in the maintenance area for the golf course, picked up and drove at night on a golf path, turned onto a paved road and drove right up to the house. Take note, this defendant was purposely evading service. The investigator was dressed in dark clothing and waited across from the residence near a lake. The key was not to move around. The human eye does not perceive colors and shapes as well as slight movement. A short time later, the defendant walked out to start his barbeque and was served.
Sometimes driving up to guard in a BMW or a Mercedes gets a cursory waive through as the investigator appears to belong there.
Certainly the most frequently encountered animal is going to be a dog. Multiple dogs are even worse. An old trick is to utilize dog treats, which seems to work well, but do not run out of “Beggin’ Strips” or the lunch menu could change quickly. Never touch an animal as most will perceive this as a threatening action. Fast movement or running away seems to incite trouble. Certain breads of dogs are bad news. Ranch dogs seem to be friendly enough, but a fenced
yard sporting a couple of pit bulls is a bad omen. Find a different way by waiting or utilize the trash pick-up maneuver or newspaper in the morning technique.
Do I have the right house? If you have a phone number, one can telephone while at the door. Can the ring be heard inside? A check with the neighbors can be helpful, especially when homes are rural. Apartment dwellers are tough to serve at times. Most renters do not stay put in it particular place, usually a matter of months…oftentimes they never seem to be home and the neighbors never seem to know each other. These types of problems are better researched ahead of time with database searches such as IRB (http://irbsearch.com/) – pay particular attention towards motor vehicles so you can conduct a motor vehicle search. If the vehicle is there, it is safe to say they still live there. Think the property manager will disclose whether or not a person lives in a particular apartment? Guess again…most likely not. Informing the manager you already know the party lives there can be helpful with the manager’s cooperation; the manager may confirm the facts you have obtained and identify or confirm the apartment number.
Seems like there are some cities where the residents are all just dead set constructing cages around the entry ways of their homes. San Francisco is a classic example. In this situation the big question seems to be – how does one ring the door bell or knock on the door? In my experience I have found a simple broom stick solves the problem. It can be fished through the bars or cage to knock or press the button.
In order to ascertain whether or not someone is coming and going from a residence, buy a newspaper, put a rubber band around it, and leave it on the door step. Another alternative is leave the door mat ajar and see if it gets moved back into place. Try taking a digital photo to use on the next trip. Has the position of the curtains or drapes changed? How about the lights? Lastly always take note of the positions of any automobiles? Have they changed since your first trip to the location?
An investigator/process server should always document all dates, times and addresses regarding service. Due diligence may be required for substitute service and information regarding service attempts are necessary for the construction of an Affidavit of Service, Affidavit of Non-Service, Affidavit of Due Diligence, or due diligence via publication. Publication policies of courts and jurisdictions vary. Generally, a motion and order are needed to publish a summons. The motion will likely need an affidavit setting forth the activities of the investigator/process server’s efforts to obtain personal service. There are some courts that require information on whether or not the subject is still residing at the particular address. This may require motor vehicle records, voter information or a postal forwarding address request form marked as “good as addressed.” If you get suck on all the requirements, a call to the clerk is always beneficial or taking a look at a successfully published file in court records works too.
The attorney should be asked if an interview is desirable at the time of service. Of course, the party should be asked if they are represented by a lawyer relating to the proceeding before commencing. The investigator can then gather important information and serve the witness or party when done.
About the Author
Craig Wesley Rimer, C.L.I., J.D is the current President of Cardinal Pointe Pretrial and Investigative Services located in Denver, Colorado. Mr. Rimer has been a licensed California Investigator for twenty-four years. He is one of one hundred twenty-five Certified Legal Investigators practicing in the United States and is certified as a financial investigator by the National Association of Certified Investigators. He is published both in hardback and softback in the area of pretrial preparation and has been on the teaching staff of the University of California at Davis. As an investigator, Craig Rimer has conducted in excess of eleven thousand civil and criminal investigations throughout the United States and many cases in Europe, on the Pacific Rim and South/Central America.
Craig Wesley Rimer, C.L.I., J.D
President, Cardinal Pointe Pretrial and Investigative Services