Evasion: an overview

On the other end of the defendant who accepts their papers without question is the evasive defendant. There's a number of different ways that someone can evade service of process, and there's a number of different ways to attempt to serve them. What's most important is knowing what you're getting into, and staying safe.

I'm all for a good talk. If someone opens the door I can usually convince them to take the papers, and, if they "want to see them first" well, they've done my job for me. The real issue is the defendant who yells through the door (and doesn't call the cops, if you've been following things up to now). What I really enjoy about the job is that at this point, when you get the "who is it?!!" you generally have to go by gut reaction as to what you do next.

I'm not very good at trickery, but I can talk a good game. Some servers have been known to play the "Ohh, does Ms. X still live here?" with that inflection. But there are two things I do. One is to ask for the person, in the plain Jane "does X live here?" question. But this is dependent on your intuition. Sometimes you'll get an answer and are able to serve/subserve the person living there, or you can begin talking your way to an inevitable serve. The other trick is to play hard of hearing and knock again. Knocking again works best for someone who isn't necessarily expecting you or isn't confrontational. Once they open the door, your success ratio is going to go up.

Now, let's say that Mr./Ms./Mrs. X is not home. but you are able to subserve. Here is when you want to read whether they know what's going on. If not, all is well! usually I play the you totally want what I have, and I'm going to be nice enough to give it to you route.

"hi, is Mr. X here"
"no"
"oh, ok, sorry to bug you, I have some documents for him, but I can leave them with you... do you live with here?"
"yes I do"
"oh, ok, I just need your name and I can give them to you." (keep the niceguy apologetic tone)
"Jane Doe"
"Ok, you're his wife?"
"sister"
"ahh, ok. that's fine, here you go *hand over papers*... Sorry to bug you... have a nice day"

Notice the 2 apologies. Compliments and apologies are the best way, for me at least, to keep away from getting too confrontational. Remember, the process server is just the messenger, and he puts himself into an awkward situation. Being apologetic is often your best way to get the papers over and getting the heck out of there.

But what about people that don't answer? In all honesty, I'm still developing these skills. For me there's an experimentation with multiple attempts -you might get someone else, say a naive 18 year old son or daugther- or they might just give up the evasion route and take the papers. But some people will never answer the door, or they will insult or ridicule you through the door (or worse). That's what affidavits of evasion are all about. For me, they pay nothing, but risking my hide for a serve is NOT what I went to law school for. I move on, sometimes it's not easy, especially when someone tries to push you around, but I'm not there to prove how tough I am, instead I do a job as best as I can without risking my safety.

Funny Story #1532: Guy has temper tantrum, calls police on me

Having laid down a little of the groundwork, it's time to tell a few stories from out in the field. I've been working as a process server for about 4 months now, and have plenty. I'll share some from the past and the present, (all the while hoping the future is an attorney job!).

This one is still one my favorites, and it's a good example of knowing the law and being persistent. My defendant owned a small business in a strip mall, and was being sued in contract. Pretty plain Jane stuff that you would expect would lend itself to an easy serve. Well, not really. I had some engagements in the morning and headed over to the business at about 9:30am. They weren't open so I headed next door for a cup of coffee and waited in my car. By 10, here comes the guy. He unlocks the door and I approach. -This was also a small lesson for me, when people see you come out of your car having obviously waited for them, and when they know you're not coming to give them a lollipop, they usually aren't happy.

He immediately locked the door back up and I knocked.
"Hi are you Mr. X?"
"This is private property!"
"Are you Mr. X"
*yelling at me through the window, I can't really hear what he's saying"
"can you open the door, I'm looking for Mr. X, I have documents for him"
"This is private property, get out of here!"
"Ok, I'll wait for Mr. X" (full knowing he's they guy, and the sidewalk in front of his business is not his property, AND I'm an invitee to the adjacent coffee shop. Oh, and it was a great cup of coffee)

Some time goes by. and I'm just hanging out there. Finally he bangs on the window at me.
"I'm calling the police!"
"Ok, you do that"

And he did that, the police showed up, 3 cars actually because no doubt he was trying to say I was attempted to break into his business. This is where I calmly walk over to the squad car.
"are you the guy that called us?"
"no sir, I'm a private process server and I have a summons to deliver to Mr. X. He flipped out and would not tell me if he was Mr. X. I made no attempt to get into his place, just tapped on the window and showed him the summons through it."
"ok."

it was there that police went and spoke to Mr. X. who was flipping out all the while and trying to argue about why he was being served.

Great moments include: "this is the United States of America! this shouldn't happen!" obviously understanding that's exactly why it was happening (see the due process discussion earlier).
also, after explaining that I was an uninterested 3rd party, just delivering papers, Mr. X was more or less at a loss for words: "well.... Good luck with that!" yet another person who thinks that a process server is making the suit happen as opposed to the party pressing it.

So, in the end. Mr. X got served, by the police. The whole thing was so funny that the junior officers on the scene were smirking at me during Mr. X's tirade. I even said to one of them "hey, my coffee's getting cold, you mind if I get it out of my car?" -"no, go ahead"

a good cup of coffee and live entertainment. This is a great story about someone making a fool of themselves and actually having themselves served and a warning issued, presumably because he made a false call to the police.

Moral of the story, don't wig out on the messenger or any other variant of that same saying. I get paid to give you papers. Please, let's not make it personal, leave me be so I can get on to the next serve. Moral for me: never lose your cool, if the guy is wrong, he's wrong and the police might just show up to do your job for you.

serving papers

serving the summons, subpoena, judgment, etc. is the heart of what a process server does. He hands over the court documents, "serves" them, to the intended party. If we are to take a glorified look at it, you can understand it as the 5th and 14th amendment in action, so to speak. The party is given notice and an opportunity to be heard when they receive the papers you are serving them so that they are not "deprived of life, liberty or property without due process of law". and that's as lofty as it's going to get. I wasn't a great Con law student, but that's pretty easy to understand. Our legal system provides its parties with notice so that when someone has a claim against them in court, they are "served" with notice of such so they have an opportunity to answer for the charges against them.

So you'd think that, since the matter is already being pursued by one party in the court, that the party who is to be served would want to accept service as quickly and painlessly as possible so they can go about building their case? well, of course not! The process server has a difficult job for this very reason, parties to be served will often do ANYTHING to avoid being served. Most often it's because they think that if they avoid you, they can somehow avoid the lawsuit.

Avoiding process can delay a case, which makes interest add up, or cause scheduling difficulty for a lawyer trying to have witnesses testify, or cause just about any legal headache you can imagine. It will NOT stop a case. When a party evades process the court will allow for substituted service, or even allow the summons to be posted to their door. I always get a chuckle out of taping a summons (when permissible) on the door of a defendant who thought he outwitted me.

Then there are those who want the service, and are eager to get their case moving. If every serve were like this, they'd pay process servers next to nothing. But the reality of the matter is that most serves fall somewhere between the eager recipient and the guy who calls the police on you. Here is what I call the "awkward zone" and it's where I spend most of my day.

Here's a snapshot into the day of a process server: You have an address and a name, maybe a phone number but you don't necessarily want to try that because it may tip off a defendant that will try and avoid process. If it's a residential address you go there sometime after rush hour. the dinner hour is perfect, but really anytime you get to them and they aren't (necessarily) expecting you, you stand a good chance at serving the paper.

*Knock Knock*
*defendant opens door* (you breathe a sigh of relief that they're not playing the yell through the door game)
"hello, are you Mr. X"
"yes... um... who are you?" (or some kind of variant)
"oh, I'm courier, I have documents for you..." (the awkwardness is beginning)
*Pull off cover sheet*
.......
It's here that the defendant will either take the paper from you, or begin asking questions about what the paper's about. A good process server has a ton of tricks at hand to avoid a prolonged discussion and get the paper served. My usual technique is the stupid courier act. "Not sure, I don't read them" or if you need to be a little devious: "Yea, I don't really know...wanna look?" -which is a great trick because once they "look" they have the papers in their possession, and they are served. You can do your old school daffy duck laugh and go bouncing off into the sunset. More often than not, you just need to be quick and reveal as little info as possible. "court documents" is all they need to know. You can't say it's a Nobel prize, but you also don't have to tell them the merits of their case. Just deliver.

The moment the party receives the paper is what I like to call that "special moment" because if they aren't sure what's going on, and they take the papers without asking, they immediately begin reading....S U M M O N S.... and the gravity of the situation beings to flood in for them. This is when you need to be making your way for your car, keeping an eye on the served person and hoping he doesn't have a shotgun in the umbrella stand.

Social engineering goes a long way, especially if you have to serve a certain person in the house and someone else answers. Always be kind, nice, and stupid. A few months ago I had a personal serve on a defendant who's boyfriend opened the door. As he was calling for her I immediately struck up conversation by complimenting their TV. Compliments go far, and will do wonders for getting someone to put down their guard. When the defendant came and took the papers, she immediately knew what was going on and said "oh what the hell is this!?" at which point I looked at her boyfriend, after having had a great 3 minute conversation about his flat screen TV and said "yea, so that's what I do for a living" and made for the door.

Then there is just persistence. Some people know exactly what you are there for, but won't come to the door. There's a number of ways to get people to answer, which I can detail later, but A good example of persistence is the knockknockknockknock... (you get it) approach. I had to serve a complaint for unpaid rent and I could tell the tenants weren't likely to be combative but they just wouldn't answer the door. I could hear them walking around, pacing. Every time I knocked their dog went nuts (dogs are a blessing and a curse this way). After 10 minutes of knocking one of the tenants finally answered the door, and did her best act of "golly I just heard the door".

The beauty of the job is that every serve is different. You have to organize logistics, deadlines, gas expenses, potentially evasive defendants, and actually evasive defendants into a productive work week. Every job could demand quick thinking, people skills and even legal knowledge. So I guess its not a bad gig until I get a "real" law job.

Why Process Serving?

This is the worst legal market in 30 years. Having been recently awarded a J.D. no legal connections at "daddy's firm" and sitting squarely in the middle of my class, job prospects are not good. Process serving, or, as I often refer to it as being a legal garbage man, is the closest I can get to the action. Better to be chasing around people with summonses than playing the job hunt game. Or something like that.

If anything, it does "get you in the game" as a good friend and law professor told me. And I'm glad I took the advice and began my new career path (starting from rock bottom). I work for a company that provides me with the papers to serve, so there's no worry about trying to build my own business. As you might imagine, I don't want to do this forever. I work "for" this company as an independent contractor, which means in the end, I decide when and where to work, and can work my own schedule. Pretty cool huh?

Of course, in order to make money, you have to serve people. This is commission only. Process servers generally don't get paid by the hour unless they are staking someone out. This kind of independent contractor work also requires you to keep track of your expenses, these companies don't do income tax deductions, so you had better keep track of your mileage and other business expenses, or you might find yourself on the other end of the process server dichotomy when you find out you owe the IRS.

But having survived law school, not being able to track expenses and keep deadlines would make me the worst prospect possible for an attorney, so these drawbacks to process server work are fairly minimal. Keep track of expenses... keep deadlines. The deadlines of course are the more difficult thing, if you don't server your defendant on time, the summons goes dormant, and your out of a commission. That, as you might imagine is where things get interesting, the serving part. I'll pick up with that in the next post.