For much of the history of our state, the statutory requirements for being a process server in Washington were, at least in the minds of most professional process servers, woefully inadequate. With that said, there are certain minimum standards and we’ll take this lesson to discuss them in detail.
Serving a legal document requires you to become a witness in the case at hand. As a witness you must provide your testimony to the court. That testimony is usually in the form of a proof of service (either a declaration or an affidavit) but it is not unknown for process servers to be required to testify in person. Regardless of whether you give your testimony in written form or in person, the duties upon you are the same. As a witness you fall immediately under the purview of this RCW:
RCW 5.60.020
Every person of sound mind and discretion, except as hereinafter provided, may be a witness in any action, or proceeding.
This RCW places two restraints on who can be a witness. As such, it places two restraints on who can serve process. First, you must be of sound mind and second you must possess discretion. Fortunately, RCW 5.60.050 expands on this by defining who are incompetent:
RCW 5.60.050
The following persons shall not be competent to testify:
1. Those who are of unsound mind, or intoxicated at the time of their production for examination, and
2. Those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.
It is reasonable to assume those who are taking this course are generally of sound mind. That said, paragraph #1 states clearly that a person of unsound mind is not competent to give testimony and, therefore, is not competent to be a process server. Note, however, the specific reference to intoxication. This prohibition applies to anyone intoxicated not only by alcohol but also by either legal or illegal drugs. By itself paragraph #1’s reference to intoxication applies to the witness only at the time he or she gives testimony. As stated above, a process server’s testimony is normally provided in the form of a proof of service. Therefore, the server must not be intoxicated at the time the server’s signature is applied to the proof.
This leaves us with the rather peculiar situation in which it initially appears a process server could be severely intoxicated at the time of service and yet still qualify as a legitimate process server! Fortunately paragraph #2 expands on this by disqualifying anyone “who appear(s) incapable of receiving just impressions of the facts … or of relating them truly.” A person who is intoxicated will fail the test of being able to receive just impressions or being able to relate them truly. Herein lies the danger.
Following is a brief story which lays out how easy it would be to fail the test set out in RCW 5.60.050. Going out for a beer (or two) and then proceeding to serve legal documents is a sure way to have a service overturned by a sharp attorney. Here is the scenario.
It is the end of a long hot day so you hook up with a couple of friends for a quick one at the local watering hole. You have a beer, just enough to leave the smell on your breath. You are legal to drive and operate heavy equipment. You say good night to your friends and decide to serve a couple of papers on your way home.
Your first stop is to serve a Summons and Complaint for Personal Injuries. The person you’re serving, Mrs. Smith, answers the door. You ask her name and she confirms she is the defendant. You present the papers and she accepts them. You ask her to sign for them but she declines to do so. At this point she notices the smell of alcohol on your breath but says nothing to you.
The next day she turns the documents over to her insurance company representative and comments on how you smelled like a brewery when you gave her the papers. This bit of information is passed along to the insurance company attorney.
The attorney waits until the statute of limitations has passed and then moves the court to have your proof of service thrown out based on Mrs. Smith’s declaration that you were not qualified to be a witness because you “appeared incapable of receiving just impressions of the facts” because of intoxication. The judge agrees, your service is now history and, along with it, your client’s case. Your next telephone call is to your E&O insurance carrier because your former client is now suing you. Tell me more.
We now move on to two court rules which also govern and restrict who is allowed to serve process in Washington.
CR4(c):
By Whom Served. Service of summons and process, except when service is by publication, shall be by the sheriff of the county wherein the service is made, or by his deputy, or by any person over 18 years of age who is competent to be a witness in the action, other than a party. Subpoenas may be served as provided in rule 45.
CR45(c):
Service. A subpoena may be served by any suitable person over 18 years of age, by exhibiting and reading it to the witness, or by giving him a copy thereof, or by leaving such copy at the place of his abode. When service is made by any other person than an officer authorized to serve process, proof of service shall be made by affidavit.
Obviously these are “minimum” standards. The requirements in CR4(c) can be broken out as follows:
- The server must be the sheriff of the county where the service takes place or;
- If not the sheriff then by his deputy or;
- If not the sheriff or his deputy then by any person who is over the age of 18 years and;
- Who is competent to be a witness in the action and;
- Who is not a party to the action.
CR45(c) is even less burdensome, requiring only:
- That the server be a “suitable person” and;
- That the server be over the age of 18 years.
The phrase “suitable person” remains undefined but it is reasonable to believe the court would look towards CR4(c) along with RCW’s 5.60.020 and 5.60.050 should it be required to provide a definition at some point.
RCW 5.60.020
Who may testify.
Every person of sound mind and discretion, except as hereinafter provided, may be a witness in any action, or proceeding.
RCW 5.60.050
Who are incompetent.
The following persons shall not be competent to testify:
(1) Those who are of unsound mind, or intoxicated at the time of their production for examination, and
(2) Those who appear incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly.
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This is a rough diagram of a typical courtroom in the state of Washington. Courtrooms vary a great deal from city to city and county to county but they all have the same basic structure.
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