Pandemic safety measures have changed the way we do business. Some new procedures may be here to stay.
It would be an understatement to say that 2020 has ended radically differently than it began. In less than a year, Covid-19 has changed life as we know it. Fortunately, a vaccine is now available, and we are finally playing offense instead of defense. I’m looking forward to 2021 with hope instead of dread. But there are some things, for good or ill, that may never go back to the way they were before.
The pandemic has greatly altered the way we do business in the PI and process serving industries. Jury trials have pretty much ground to a halt. Zoom court is the new norm for routine appearances. And for process servers, masks and hand sanitizer have become part of daily life. For the time being it also usually means being six feet or more away from your defendant when serving them.
In-Hand vs. Drop Service
In the “good-old days,” service was expected to be “in-hand” only. The person you were serving needed to physically take possession of the papers being served, except in extreme circumstances, for service to be considered valid. The alternative when someone refused to accept papers “in-hand” was to simply drop the papers at their feet and walk away.
This method was called “drop service” and was almost universally frowned upon by attorneys.
Do not confuse “drop service” with “sewer service.” Sewer service is claiming that you’d served someone without having actually done so. The service info is completely fabricated, and the papers are then thrown away (i.e., into the sewer). This is unethical and illegal and has no place in the process serving industry.
So, is there anything legally inferior about drop service?
In my home state of Illinois, there doesn’t seem to be. Per Illinois 735 ILCS 5/2-203(a): “Except as otherwise expressly provided, service of summons upon an individual defendant shall be made (1) by leaving a copy of the summons with the defendant personally.” Nothing specifically states that the defendant must take possession of the documents by hand.
Furthermore, I’m not aware of any cases in Illinois where service has been successfully quashed by a defendant claiming that they weren’t served “in-hand.” Therefore, I’m not sure where the prior insistence on “in-hand’ service came from, but I imagine it was the byproduct of a generation of attorneys worried about any way their serves could be challenged in court.
Socially Distant Service
Since March, and especially in the first days and months of the pandemic, most servers were not serving documents “in-hand.” In fact, many large process serving agencies were instructing their servers NOT to directly hand legal documents to a defendant. The usual method was to drop the documents at least six feet away from the defendant, retreat a safe distance, and then watch the defendant walk over and pick up them up. So if this is now perfectly fine during a pandemic, should we expect to go back to the “old days” once the pandemic is over?
I asked an expert in the field, attorney Fred Nickl of the law firm Williams & Nickl, LLC in Chicago, IL. Here’s what he says:
“We get questions from our private detective and process serving clients all the time on what constitutes ‘good service.’ Going forward, COVID-19 is such a good reason to avoid being near the subject that we anticipate process servers relying more and more on the case Freund Equipment, Inc. v. Fox, a 1998 appellate court case stating that a defendant is personally served if the papers are placed ‘in the general vicinity of the person to be served and announcing the nature of the papers.’ I cannot imagine a judge in this state quashing service if you follow Department of Public Health guidelines and stay 6 feet away while dropping the papers and announcing what they are to the subject.”
My opinion is that it’s time to “drop” the name “drop serve.” A serve is a serve, whether the papers are placed in the defendant’s hand or dropped near them. Whether 2020 will be considered the end of the “drop serve” remains to be seen.
The year 2021 will likely see the end of the pandemic, but its effects will be felt for years to come. People may continue to avoid large crowds and worry about getting “too close” to someone they don’t know who knocks on the door. But regardless of what comes our way, I really hope that the next time I see the words “drop serve,” they’ll be on a list of words that were “so 2019.”
About the author:
Jacob Osojnak is a licensed private detective in Illinois and Michigan. He is also an Illinois Concealed Carry license holder and NRA Certified Range Safety Office and has written about concealed carry issues for the Illinois Association of Professional Process Servers (ILAPPS). He is a graduate of Michigan State University and has been serving legal papers since 2001.