PS 101 – Chapter 1 – Article 5 – The Process Server’s Place in the Legal System

Our nation is based on the rule of law. Embedded within the fundamental structure of the body of law on which we operate is a requirement for a concept known as due process. Indeed, in the 5th Amendment to the Constitution of the United States is found the following: “No person shall …. be deprived of life, liberty, or property, without due process of law ….” As with all parts of the 5th Amendment, this clause (the Due Process Clause) seeks to protect individuals against government authority. It is considered by many to be one of the most important provisions in the entire Constitution. Its intent is to force government officials to use established procedures (the process) in exercising their power. These “established procedures” are, in large part, the laws which govern us.

That a country should be ruled by law infers that the law is known, or at least knowable, to the citizenry. The law is in the public domain and, indeed, is made by the public and is therefore owned by the public. Court proceedings are, or at least most of them are, conducted in public. Without this public aspect the rule of law would fail and the public’s ownership of the law would end. It would become the property of those in power and democracy, as we know it, would cease to exist.

One purpose of a democratic government, especially one based on the rule of law, is to provide a system by which grievances and disputes between individuals can be adjudicated in a way which, among other things, is consistent from day to day, place to place, and person to person. Part of that system removes the “right” of revenge or redress from the individual and embodies it within the power of the state. Thus, when there is a dispute, perhaps over the location of a property line or the repayment of a debt, the aggrieved individual cannot simply thump the other party over the head and take what he believes is his. If he does so then he commits a crime and may be punished. Instead he must use the courts, and through the courts the power of the government, to decide the issue.

Thanks to the 5th Amendment, the other party is entitled to “notice” that someone is about to use the power of the government to resolve their dispute. This notice is generally provided when a process server serves a legal document on the other party. Without this notice, being given in a manner prescribed by law, the first party (usually the “plaintiff”) cannot bring the power of the state to bear against the second party (usually the “defendant”).

Once the power of the state (the court) is brought to bear through service the plaintiff can eventually, should he prevail in court, end up with a judgment against the defendant which will allow him to use additional powers of the state to make him whole (move the property line, collect on the debt, etc). However, at almost any time, should the defendant be able to establish he was not given proper notice, the judgment can be overturned and, under certain circumstances, the plaintiff may lose his right to any further attempt to use the legal system to address the original issue between the parties. Tell me more.

NOTE: Service can fail at any time. There are cases in which the defendant, many years after the fact, was able to convince a court that proper service was not made. The judgment against the defendant was overturned and the plaintiff was left without recourse since the statute of limitations had long past.

Thus, for our purposes, the progress of a dispute can be visualized as two triangles balanced as shown in the diagram on the left. At the center is the point in time when service occurs. If, at a later time, the defendant is able to show service was not properly achieved, then the entire case can fail. Service of process is vital not only to the individual case but to the underlying system on which our government and society is based. 

Service Succeeds	Service Fails

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