Service of Process

That's a boring title.  Generally speaking, the subject matter is not much more thrilling.  But it is critical. It is essential.  It is the threshold issue to making a law suit a law suit.

The attorney can craft the most brilliant complaint every written, every cause of action spelled out to a "t," every fact intricately woven into the story capped by an ad damnum that brings tears to the Judge's eyes, but if you can't get the defendant served, you haven't got squat.

Service of process is about due process.  It is a fundamental, constitutional issue.  It is how the court becomes satisfied that the person you are suing has enough notice that he is being sued that you can get a judgment against him should he have the bad judgment to not respond to your complaint. If you get Service of the Process (the Complaint and Summons) then you get the defendant.  If you don't get Service of the Process then you are indeed tilting at windmills.  You have whole cloth and nothing more.

Different states have different rules about what constitutes Service of Process.  Some states allow Service of Process by First Class, United States Mail.  "Yeah, Judge.  I mailed it to her.  She knows to be here."  "Okay, sir.  I grant you the house, the cars, the kids and her bank account."  I don't think so.

I like Georgia's rules best because they provide the most likely guarantee that the Defendant has notice of the action.  Georgia requires personal service in most instances.  This means that the Defendant himself is actually handed the Process.  And not just handed the Process by any Tom, Dick or Harry, but by someone appointed by the Court to Serve Process.  This almost always is either a Sheriff's Deputy or a Private Process Server who has been specifically appointed by the Court to accomplish that result.

So, Service of Process is key.  Now on to the next issue.

Some Defendants like to hide out from Service of Process.  They play hard to get.  They figure if they lay low, the Plaintiff will just give up.  But why would the Plaintiff ever give up?  If it is a waiting game, Defendant is just forestalling the inevitable.  Like a fugitive, Defendant becomes a wanted man, hunted constantly, forever having to look over his shoulder for that outstretched arm with folded papers.  "Here you go, sir."  Will it happen at home, at 3:00 in the morning?  Will it happen at work during a critical staff meeting with the boss looking on?  Will it happen on a date just as the waiter pours the wine?  Will it happen at church just as the preacher calls for all sinners to come forth?  It's all over and all of Defendant's efforts were for naught.  Further, Defendant's shenanigans will cost him because the additional cost borne by Plaintiff to perfect service will be item number one when fees and expenses are sought.  "Good hiding, sir.  It took three extra months and $500 extra dollars to find you.  Now pay an additional $500 to Plaintiff over there."  I don't care who you are; I don't care what you do. I will find you, somewhere, somehow, some time.  The Process Server Man does not rest.

So, there is no point in hiding.  Now on to the next issue.

Sometimes the defendant is not in the state.  Maybe they are in the next state over.  Maybe they are in the next continent over.  However, each jurisdiction, whether it is Alabama or Albania has its own rules about Service of Process.  The States of the United States have agreements between them about Service of Process across State lines.  Member Nations have treaties between them on these issues.  Even if the defendant is holed up in a non member nation, if service is perfected by the rules of the plaintiff's jurisdiction, the Service will be recognized and the defendant will either have to show up for court or lose all.  "Would you like a vacation in Nigeria, Mr. Process Server?"

The point here is that there is a way to perfect Service anywhere on this globe.  We were recently asked how to perfect service in Afghanistan on a military contractor.  True, the agencies to perfect service there are spotty and unreliable and it is hard to pay a Georgia process server to place life and limb in war-torn peril.  Not much of a vacation there.  But then there is leverage.  Neither the military nor the State Department want any more glitches than they already have.  And having a defendant avoiding Service of Process and not taking care of his children is a serious public relations glitch the government would love to avoid.  So you perfect service by having the defendant put in a position where he either Acknowledges Service or is sent home by the government, never to return.  In reality, the State Department is filed with good people.  The State Department doesn't want dead beats who don't care for their kids avoiding their responsibilities by hiding behind the State Department's coat-tails. You can find these dead beats.  You can get these dead beats.

So, there is no where to run, no where to hide.

Later on I'll write about tracking down the dead beats.  There are great people who do just that.  For many of them, it is their passion.  But for now just know, if you've got an idea about where the dead beats are, you can Serve them.  You can have your day in Court.

Game On!

Michael Manely
http://www.allfamilylaw.com/PracticeAreas/Divorce.asp

Practicing Desperation Law

Last night I wrote about the attorneys who practice family law as though it was were a tenet of faith.  Tonight I write about the attorneys who could care less.

On the opposite end of the spectrum from the zealot who imposes her convictions on you lies the "I just don't give a damn attorney."  They have more important things to do, like anything else that comes through the door.

By and large, family law is considered a peculiar specialty, as if those who practice it exclusively have an affliction.  As I wrote last night, who would sign on for this misery?  So family law cases are considered a blight, though perhaps a necessary evil for the general practitioner who handles anything that comes through the door.  They handle personal injury, bankruptcy, criminal law, commercial litigation and, yes, somewhere in there, family law.  I contend that they practice "Desperation Law." They seem to state, "I just want a retainer.  Any retainer."

Family law has its own rhythm, its own groove, certainly its own body of law, and its own bar (for those few of us who practice it exclusively).  Whether we practice in the same frame of mind or approach the subject from quite different perspectives, the exclusively family law lawyer generally knows the other exclusively family law lawyer.  We usually know each others strengths, weaknesses, quirks and pecadillos.  We speak the same language.  We understand the issues without a learning curve.

For those indecisive or disinterested souls who do anything for a buck, they are forever cast on the howling winds of rapid and irreconcilable change.  One morning they are representing a criminal defendant, wrapped up in the Fourth Amendment.  The next morning, they are knee deep in a contractual clause about non-competing burger stands, and the next morning they attempt to be immersed in a bitter custody dispute.  Jack of all trades, master of none.

I know this scenario all too well.  At one time I practiced this scenario.  And family law drove me nuts.  But I learned, it drove me nuts because I wasn't just practicing family law.  I'd attend a criminal calendar call as disinterested as I could be.  I was engaged in the sport, but the passion was non-existent.  I'd attend a commercial litigation calendar call and everyone there still seemed asleep and wishing they were on the golf course.  Not a happy crew.  Then I'd attend a family law calendar call and everyone was animated, involved, deep in discussion, negotiation, maybe resolution.  All of it meaningful.  All of it vitally real.

Eventually I determined that I should only practice family law.  I won't call it a calling, hence I would run afoul of the malady I cited last night.  No, it was my passion, my skill and my drive that directed me.  That, and family law attorneys are in court most often, second only to prosecutors.  My attorneys and I are often in Court three to five times a week.  A personal injury attorney is lucky to see the inside of a courtroom three times a year.  As I've said often, I live in the Courtroom.

So family law is home.  This is where I thrive.  This is where I can do the most good. 

I don't practice desperation law.  I won't handle anything that comes through my door, except family law.  So if you have a criminal case, you can call me because I know some great criminal lawyers to refer you to.  But if you have a family law case, call me or anyone who practices exclusively in family law.  Our passion and our practice shows.

Michael Manely

Is it a calling?

I have an unusual job.  I help people get divorced.  I work in family crisis day in and day out.  I am buried, nay smothered in daily drama.

Why would anyone sign on for this misery?

Some in my profession appear to posit that their's is a calling, that they are led to this line of work in the same way that preachers are.  And like preachers, they claim passion and deeply held, fervent beliefs.  They hold convictions and operate from dogma about how things must be.  Their client's lives become testaments to the attorney's convictions.  And the family drama plays out in moralistic terms, good versus evil and righteousness must prevail.  There is the victor and there must be the vanquished.

I definitely like what I do.  I don't want to do anything else, work wise.  I'm drawn to the Courtroom, not because it is my life's mission but because I'm good at it.  And I'm good at it because I like a good, serious legal contest.  I'm good at it because I care to be.  And I like what I do because I find meaning in helping real people obtain real solutions for real problems.  What's not to like about that? Family law fits me. 

I would hope that everyone should be able to make a living, doing what they enjoy.  It makes life richer.

But I don't hold dogmatic positions.  I don't pass judgment.  I don't exact my principles on my client's lives.  I do bring all my talents to bear on their issues.  I make solutions.

I'm not a preacher. I'm not a saint.  I'm not a voluteer.  I'm a mercenary.  I am well paid to be successful for my clients.  I am paid to advocate for their interests and paid to tell them the truth. 

So if you want someone to be a bishop over your life, to tilt at the windmills of their own past in your present, I'm not for you.  If you want to fix a problem, come see me.

So, is family law my calling?  No.  It's my business.