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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 service.

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.

In order 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.

Practical Applications
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."

The Process Server
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 manner.

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.

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