When you bring a personal injury lawsuit against the person you think is responsible for your injuries, as the Plaintiff you file the initial papers (the "Complaint" and any exhibits) with the appropriate court, and the case is assigned to a judge of that court. However, the case cannot proceed against the responsible party (known as the "Defendant"), until the Defendant is served with copies of the suit papers. Read on for the details.
The Summons and Complaint
A document known as a Summons is prepared along with the Complaint, and both documents must be served on the Defendant before any court proceedings can take place in connection with your personal injury case. (Learn more about The Complaint in a Personal Injury Lawsuit.)
The specifics of how you serve these papers on the Defendant will depend on the rules of procedure in your particular court; however, there are some basic rules that apply universally when it comes to serving the Defendant in a personal injury lawsuit.
Serving the Defendant
The first rule of service is that reasonable efforts must be made to serve the Defendant in person by handing the suit papers to him or her (or to an agent who has been authorized to receive service). The reason for this rule is that the court wants to be satisfied that the Defendant has actual notice of the suit in the event that the Defendant fails to respond to the suit in a timely manner.
In most jurisdictions, service can be made by a competent adult who is not a party to the case. Although there are process serving companies who serve suit papers for a fee, it is not usually necessary to hire one of these companies. If you do not have someone you trust to serve the suit papers on the Defendant, another alternative is to have the papers served by your local sheriff's office, although the agency will charge a fee for this service. For example, the Cook County Sheriff (Illinois) charges $60 per defendant for service of process, and the Los Angeles County Sheriff charges $40 for service of a summons and complaint.
One thing to keep in mind when deciding who will serve the suit papers is that the Defendant may attempt to evade service if he or she knows it's coming, and professional process servers are skilled in locating elusive Defendants.
(Learn more about Service of Process in a Civil Case.)
Proof of Service and the Defendant's Response
Once service by hand delivery to the Defendant is made, a document called a Proof of Service must be filed with the court so that there is a record of the date, time, and location of the service.
The Defendant must respond to the lawsuit papers by filing an answer within the required time period -- for example, in Texas, the defendant must file a written answer to the plaintiff's complaint on or before 10:00 a.m. on the Monday after the expiration of twenty days after the date of service.
If the Defendant fails to respond within the allotted time, you will be entitled to seek a default judgment. Default proceedings cannot go forward, however, unless you demonstrate to the court that the Defendant was properly served, and you can make this showing by presenting the Proof of Service as evidence.
While personal service by hand delivery of the suit papers is the preferred method of service, there are times when personal service cannot be made. In these cases, the court rules typically allow what is known as Substituted Service, which involves either:
- publication of notice of the filing of the lawsuit in a newspaper of general circulation
- the posting of the suit papers at the Defendant's residence
- the certified mailing of the suit papers to the Defendant at his last known address, or
- a combination of these efforts.
In most jurisdictions, you will have to seek the court's permission to proceed with Substituted Service, which will only be granted if you can persuade the court that you have made reasonable yet unsuccessful efforts to serve the Defendant personally.
Learn more about the Basics of a Personal Injury Lawsuit.