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Re-print from Bar Notes Official Monthly Publication of San Fernando Valley Bar Association
by Nelson Tucker, President of Attorney Services of Southern California Law schools seem to minimize the importance of the laws related to service of process. As with most laws, those involving process serving are continually changing and many legal professionals find it difficult to find the up-dates. So, to whom do you turn? A good process server who is fully knowledgeable about recent changes in the law will know it all! Many attorneys are not aware that recent changes actually make process serving easier than in previous years. Unfortunately, many experienced process servers also do not understand the current application of the laws and can cause delays, or even worse, a legal action against the attorney who requested the service. For years, process servers have been denied admittance to a guard gated-community for the purpose of serving a resident. Recently, Code of Civil Procedure 415.21 was amended to provide that the security guard must allow access to the actual residence of the person to be served and failure to allow such access allows a Registered Process Server to effect substituted service upon the guard. ["...SERVICE CANNOT BE AVOIDED by denying service and moving away without consenting to take the documents in hand"]Many attorneys do not understand that, if a defendant refuses to open the door after being advised as to the nature of the documents, the process server may simply post the papers on the front door of the residence. The concept originated in the 1934 case, In re Ball 2 Cal App 2d 578, in which the court asserted that " when [men] are within easy speaking distance of each other service cannot be avoided by denying service and moving away without consenting to take the documents in hand." More recent cases have affirmed the practice and allow service by calling the defendant on a mobile phone while standing outside the defendants door. Defendants are surprised when they learn that a substituted service was effected at an "old" address where they no longer live. This form of substituted service is appropriate if the defendant uses the address as the one on-file with the Department of Motor Vehicles [Vehicle Code 1808.21(c)], or uses the address as a mailing address [CCP 415.20(b)]. Substituted service may also be made at a business address by serving someone who is not an employee of entity being served. In Khourie v. Sabek (1990) 220 Cal App 3d 1009, the court ruled that service upon a third party non-employee, who was in custody and control of the office where service was being attempted and who allowed the documents to be discarded after substituted service, was appropriate since service may be made upon a person whose "relationship with the person to be served makes it more likely than not that they will deliver the process to the named party." A common application of this principle is the service upon a receptionist in a "Fegian suite" but who is not an employee of the entity being served. In summary, under California service of process laws, service is completed by the act of leaving the documents with an appropriate person and acceptance or refusal of the documents is not relevant. Any good process server knows that is the case. Nelson Tucker is President of Attorney Services of Southern California and teaches Service of Process and Court Filing Procedures at Los Angeles Valley College. He has authored 2 books on service of process. His website is www.processnet1.com
------------------- How to Avoid Filing Delays And Legal Malpractice By Nelson Tucker, President Attorney Services of Southern California Every attorneys worst nightmare is a legal malpractice suit. While some malpractice situations are uncontrollable, others are preventable by simply following established court filing procedures.The responsibility for timely filing rests ultimately with the law firm; however, the daily application of filing procedures lies with the attorneys office support staff. Every legal secretary must be fully trained in all aspects of court filing procedures to avoid missed statutes, unhappy clients, and lawsuits. Here are three simple ways to insure that every document submitted for court filing is completed timely. 1. Train the Office Staff Your legal secretary, paralegal assistant or paralegal must understand the importance of dotting every "i" and crossing every "t when it comes to filing documents with the court. Since virtually every court has different filing requirements, it is important that your office staff is current on the local filing requirements. Your attorney service should be able to provide your office with current filing guidelines and up-date your staff of changes in local rules. 2. Review Documents Prior to SigningWhen you sign a legal document, you are certifying that the information contained in the document is accurate, to the best of your knowledge. Attorneys have a duty to insure that the document is accurately completed prior to filing. Most attorneys are rushed to sign documents and take it for granted that their staff has properly completed the document. A quick, yet careful, review of the document prior to signing will often uncover minor errors or omissions which could result in filing delays. Unfortunately, a document typed on the wrong form or one that is incomplete will result in rejection, by the court, and ultimately reflects on the firms ability to practice law in a manner expected by their client. 3. Utilize Your Attorney ServiceAttorney services are more than just a filing service and process serving company. While one of the major functions of an attorney service is to get documents filed timely, they also have a duty to keep the law firm apprised of changes in court filing requirements, filing shortcuts, current backlog of specific documents within the court system, and ways to avoid filing rejections. A good attorney service is continually seeing ways to make the legal secretarys job easier by providing ideas on how to get documents through the court system in a timely manner. Written filing guidelines, court fee schedules and filing delay up-dates are regularly provided to law firms to provide the tools necessary to avoid unnecessary filing delays. Proper filing of court documents is a partnership between the attorney, law firm support staff and the attorney service. When all are working together, there is no worry about legal malpractice. Nelson Tucker is President of Attorney Services of Southern California in Chatsworth. He has trained legal secretaries, paralegals, and process servers for the past 21 years and has authored 2 books on legal support services. _________________________ International Service of Process: Why Every Attorney Should Beware by Nelson Tucker, President, Process Service Network Not only did law school minimize the importance of laws related to service of process, but they did not even mention international service. Right? Now, with the world shrinking and the global economy expanding, litigation between parties in the United States and foreign countries is increasing at a substantial rate annually, No doubt, within a short period of time, most U.S. attorneys will be faced with having a foreign defendant served with legal documents. What do you do, then? Most international disputes arise from such areas as personal injury, trademark and patent infringement, products liability, family law, collections, and real estate matters. International service of process seems to be a maze until you discover that certain rules and local laws actually make it easy. The most widely used treaty is the "Hague Service Convention" which outlines the methods of service in a specific country (not all). Another "formal" method is by Letters Rogatory, a cumbersome, expensive and time-consuming method that should be used only as a last resort. Understanding the procedures for compliance with applicable treaties and local laws will avoid civil and criminal penalties against the attorney and client who violate the law, albeit unknowingly. In most instances, U.S. state law does not apply to service outside the United States, so it is essential that the process begin with a complete understanding of the laws of the country involved. Some nations, such as Germany, Japan, Switzerland, South Korea and Italy currently outlaw service by private party. Others such as Taiwan, Australia, The Philippines, and Saudi Arabia do not have treaties in force and allow service by an "informal" method, such as by private process server. Many nations require the court documents to be translated into the official language of that country, while others accept an English version. Translation costs can often exceed the fee for service so it is vital to consult with an international service of process specialist prior to filing the case, if possible. The greatest challenge for most international services is meeting court-established deadlines. An extension of time for completion of service can normally be obtained by providing the court with a proper declaration from the process server. Although few private process servers understand the rules related to international service, some specialize in serving the needs of clients in foreign markets where the maze is simplified. Nelson Tucker is President of Process Service Network and conducts MCLE courses for attorneys on International Service of Process. He has authored 2 books on service of process. His website is www.processnet1.com _________________________________
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