Robin's Ruminations

The courts, as is their nature, are relatively slow to change.  My observation is that they typically lag behind society in many respects.  In nearly all instances this is a good thing for our country.  There are many reasons for this and I can think of a couple which apply directly to the larger issues surrounding technology and e-service in particular.

The courts are highly respectful of precedent.  There are very few new things under the sun and the courts have already heard and considered and decided many of them.  Therefore, except in unusual situations, they are loath to reverse previous opinions and rulings.  The fundamental concepts involved in e-service aren't really founded in technology.  Instead they deal with the concept of service itself.

A corollary to the courts respect for precedent is that they are not overly influenced by fads or fashion.  Today FaceBook is the "be all/end all" when it comes to socializing on the web.  But the courts recognize it wasn't the "be all/end all" yesterday and probably won't be tomorrow.  So although there have been some serves allowed using such social networking sites, the courts have shied away from allowing such service to become a daily practice.  The same applies to the use of e-mail, fax, snail mail, and newspaper publication.

Without going too deep into the subject you should realize our profession springs directly from the 5th and 14th Amendments to the Constitution.  They require due process and due process requires notice and that is where the process server enters the picture.  When a civil action is brought by one person against another it is that person's intent to bring the power of the state against the second person.  This is our civilized way of keeping people from using more violent means to resolve their differences.  And if the power of the state is going to be employed then notice is required.

In general terms, most courts require service by a method which is reasonably calculated to insure the party receives actual notice of the proceeding.  There are all sorts of ways and manners in which this is done.  All you have to do is compare the rules of service of one state with that of another.  No one state's rules are "better" than another, they are simply different.  However, you will find a pattern.  

That pattern involves a spectrum of requirements.  For example, here in Washington the rules move from the restrictive (personal service) through a moderate level (abode service) to the least restrictive (publication or even posting).  But accompanying the ability to use the less restrictive methods are requirements for diligence.  California has a perfect example.  As I understand the abode service rule in California, the process server is not allowed to use that method until at least two previous attempts at personal service have been made.

So, in my opinion, the courts have been moving in the direction of allowing e-service at just about the rate I would expect.  Slowly and with caution.  In the situations of which I am aware, the courts have required proof the person could not otherwise be served even after appropriate diligence.  The technology for e-service exists today and has existed for some years.  But the court's natural conservative nature has played out true to form.  They haven't jumped on the technological "band wagon."

More in my next post.