When a process server from another state accidentally hired me to try to serve the same defendant again, I had questions.
Several weeks ago, I had a process serving assignment that had me shaking my head and thinking “WTF?!” But after a beer or two, it caused me to ponder some Big Issue Questions, like “Who’s the boss: the client or the server?” and “What responsibilities do process servers have to be honest with each other when subcontracting out work?”
By way of introduction, I’m a licensed PI in the Midwest. Most of my business is service of process, although I also do skip tracing, court record searches, and criminal defense work. Like many PIs, I worked as an employee of another firm before deciding to hang out my own shingle. I try to keep friendly relations with everyone — including former employers — so I’ve regularly been in contact with that firm for ten years now, just to check in or talk shop.
So I wasn’t terribly surprised last March when the agency called to ask if I’d be interested in helping out temporarily. One of their employees was taking a break due to COVID-19 concerns, and they needed the extra manpower. My work had nearly ground to a halt, so I was happy to take on anything I could get.
And Then Came the Weird Assignment
A few weeks ago, I non-served some papers for a routine automobile accident case. The service address was the parent’s address. According to the father, the defendant lived elsewhere, although he wouldn’t tell me where. We had the defendant’s vehicle license plate number, and it wasn’t in the driveway at the time of the attempt. So far, everything made sense.
About two weeks later, an out-of-state process server (We’ll call him the “OSPS.”) contacted my agency directly to see if we could serve some papers for him. When he emailed me the details, I was a little surprised to find out that this was the same defendant I’d just non-served two weeks earlier. My curiosity was aroused. If this was just a case of one defendant with multiple lawsuits from different sources, OK fine. I’ve seen that show before. Still, something smelled off.
I found my field sheet for the old serve (yes, I’m a packrat — I’ve saved either a physical copy or a scan of the field sheet for every single paper I’ve ever served). And believe it or not, it was for the exact same case.
My first thought was that there was some kind of issue or hard feelings between this OSPS and my colleague’s agency. That seemed weird: His agency is one of the premier agencies in our area and has a sterling reputation. I called the office manager and confirmed that this was, in fact, the same OSPS who sent the same case to them and to me. The office manager wasn’t aware of any complaints from the OSPS about their agency’s work.
Armed with this info, I thought it was time to call the OSPS and do a little investigation of my own. I wanted to know why he never mentioned that the address had been attempted before, and why he didn’t notice the name on the non-service affidavit and the name on my company website are the same name. (I’m not exactly a Smith or Jones.) I called the OSPS and politely asked him why he was sending the same assignment after I’d already non-served it.
After some hemming and hawing, he finally spilled the beans: His client, a law firm, apparently required “three diligent attempts” before non-serving an assignment.
Undue Diligence?
Now that may sound completely logical to an attorney or paralegal, but out on the streets, there’s a completely different reality. Sometimes it only takes one attempt to determine that a subject doesn’t live at the given address. If the client feels differently, I say, “Then give me the proof, and I’ll be happy to go back.” It’s not exactly effective to head back to the service address, confront the resident, and say, “I think you’re lying, but I can’t prove it.”
I think we owe it to each other to be as forthcoming as possible about every assignment we send to someone else, especially where a potential for conflict exists.
What can prove it? Usually the defendant’s vehicle license plate number (It’s kind of hard to argue that you don’t know the defendant when their vehicle is parked in the driveway.) or social media evidence. (A recent selfie in front of the house with the caption “so good to be back home living with mom and dad!” would work for me.)
Obviously, I can do the skip-tracing work, but that extra cost wasn’t factored into this job. The original process server was responsible for that, and it sounded to me like nobody wanted to foot the bill to get this job done right.
I think the breakdown started when the OSPS didn’t “police” his client. We’re fortunate to work in an industry where the customer isn’t always right. I don’t expect our customers (and even attorneys and paralegals) to know the law, what is ethical, or even what is reasonable in the field. We have a responsibility to educate our clients to the law and to sometimes say, “No, we cannot do that because it isn’t legal/ethical/make sense here out on the streets.” Or at the very least, why not spend a little more up-front money for additional due diligence on that address, to avoid wasting any more resources on non-serves?
I have a feeling that the OSPS, rather than doing any of the above, which can often be uncomfortable, chose to take the easy way out by doing nothing and seeing if he could find another process server to make up the missing “diligence” attempts.
Transparency & Responsibility
This leads me to the second question: What responsibility do we as PIs and process servers have to each other?
Imagine that the “new assignment” had gone to a completely different process server instead of to me that day. And now, imagine that dad, who was mildly annoyed before, now points a shotgun at the new process server while screaming, “I told you two weeks ago that my son doesn’t live here. Why are you back on my property?” In this case, the OSPS might have put another process server’s safety at risk because of his lack of transparency.
Sure, that worst-case scenario probably wouldn’t have happened. But what’s so hard about just stating up front that someone has already attempted service? I think we owe it to each other to be as forthcoming as possible about every assignment we send to someone else, especially where a potential for conflict exists.
So in a nutshell, what happened? I explained to the OSPS that I wasn’t going to make “three diligent attempts” because I had already been there before and non-served the assignment. I offered to go back and knock again if he could provide proof that the defendant lived there (he couldn’t) or to drive by three different times and knock IF I saw the defendant’s vehicle there.
My client declined both options but decided to run a database report. He found a new address at an apartment complex in the same town. I went there and served the defendant personally without any problems. See how easy that was?
The Takeaway
In the grand scheme of things, asking me to waste my time and a client’s money on a pointless second attempt at service (just so the attorney can check a few boxes) isn’t the worst thing I’ve ever been asked to do. But it’s a slippery slope when attorneys start asking us to perform stupid or futile services, assuming we’ll agree out of need or desperation. How long will it be before the expectations become unreasonable, unethical, or even dangerous?
If we accede to ever more absurd demands, we make monsters of our attorney-clients, and there’s no going back. In the end, it’s probably better to draw a line in the sand early on, when the first odd request comes in, so they’ll know exactly where that line is.
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.
