The Importance of Due Process and Due Diligence

At Torri’s Legal Services, we take process serving seriously. 

We strive to serve our clients’ papers without a hitch. This is not always possible due to various circumstances, such as a bad address, the absence of the recipient, evasion, or death. 

We understand that process servers play an integral law in the United States legal system and that their seemingly humble role is enshrined in the US Constitution. 

The Fifth Amendment describes “procedural due process” as “the constitutional requirement that when the federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by a neutral decisionmaker.” Due notice is “information that must be given or made available to a particular person or to the public within a legally mandated period of time so that its recipient will have the opportunity to respond to a situation or to allegations that affect the individual’s or public’s legal rights or duties.” 

It is the process server who serves due notice to a defendant/respondent.

“Due process” requires “notice of the proposed (legal) action and the grounds asserted for it.” When a process server delivers a complaint/lawsuit to a defendant, the recipient is being informed, in compliance with the US Constitution, of his/her rights to an “unbiased tribunal,” an “opportunity to present reasons why the proposed action should not be taken,” “the right to present evidence, including the right to call witnesses,” “the right to know opposing evidence,” “the right to cross-examine adverse witnesses,” “the opportunity to be represented by counsel,” etc. 

What we know from our many years of experience in the process serving profession is that process servers want to get their clients’ papers served: Prompt service makes their customers happy and more likely to become repeat clients. 

However, there are times when we are obligated to “non-serve” our clients’ papers due to a bad address, death, evasion, or other unforeseeable circumstances. 

At Torri’s Legal Services we stress to our process servers that they are “the boots on the ground.” They are, essentially, the eyes and ears of attorneys and pro se clients. 

In the case of a non-serve, the observations and notes of a process server are very important so that the plaintiff can seek a recourse of action. We preserve our servers’ field sheets, which might contain important notes and details to be incorporated into a “non-serve” affidavit, also known as an affidavit of due diligence. 

We understand due diligence to mean reasonable, diligent efforts to serve our clients’ papers to the intended party. 

For example, one of our clients who specializes in personal injury litigation, told us that non-serves should provide “as much detail as possible to support (our) Motion for Alternative Service.” Emphasizing the important role of process servers, he added, “Without service of process, I have nothing, and my case goes nowhere.” (B.S.K., personal injury litigation)

Another client who specializes in real estate and tax sale foreclosures said that he must adhere to the requirements of all the judges who require due diligence to ensure a tidy case resolution. 

This means doing thorough research on defendants so that “someone won’t come out of the woodwork down the road.” Non-serves are part of the effort to exhaust all means to serve defendants when a property is in question. 

Our clients appreciate non-serve affidavits detailing the onsite situation. 

Based on the information that we provide, they can request that we do a skip trace and provide them with another address, or apply to the court for alternative service. Process servers should see their efforts as intelligence gathering. 

Which details are pertinent in non-serves? Here is a general list:

  • Good description of person(s) encountered at a non-serve address (race – age – height – weight – hair color – glasses/markings, etc.)
  • Description and tag numbers of vehicles parked on or in front of property
  • Description of property: lights, sounds, signs of occupancy
  • Neighbors’ input about occupants of given address
  • Mail in plain sight identifying current occupants, such as Amazon or FEDEX packages. Note: You may not touch any mail or disturb the mailbox, but the information on mail in plain sight might confirm residency. 
  • Photographs are helpful!
  • If there is a real estate sign, take down the name of the agent for information.

Torri’s Legal Services has been in business for more than 30 years and can attest to the fact that clients appreciate affidavits of due diligence, also known as non-serves, that provide solid, informative details. These allow the client to move forward with alternative service, seek a new address, or contemplate a different outcome.  

Rita Berzins

Torri’s Legal Services

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