Litigation Rule # 3: Don’t wait until the last minute to serve a complaint…you never know what will happen.

Every lawsuit has to start somewhere.

 

One of the very first things that happens in the litigation process after a complaint is drafted is that a physical copy of the complaint must be properly served on the defendant. Without proper service of process the case can be dismissed no matter how good the claim might be.

 

In some states, the lawsuit formally commences by filing a complaint with the court. At that point, there is a time limit to physically serve the complaint on the defendant. In other states, a defendant is served first and then the complaint is filed, along with an affidavit of service. Either way, the process server has to follow certain rules.

 

Though serving a complaint should be a straightforward process, sometimes things go wrong.

 

For example, in one recent case, the affidavit of service stated a particular attorney had been served with the complaint. The problem? The attorney was out of state at the time as proven by plane tickets. The legal malpractice plaintiff in that case managed to avoid a loss of a claim by asserting that the process server was misled into believing the right person was served. Many times plaintiffs are not so lucky and their claims are dismissed. 

 

If the statute of limitations expires while there is a dispute over whether service of process was proper, and if services found to be improper, the claim will be lost because the plaintiff will be unable to re-serve the complaint within the statute of limitations. It is better to avoid this risk altogether by serving a complaint far enough in advance of the expiration of the statute of limitations so that it can be re-served if a problem is discovered. The defendant claiming improper service will have to disclose why it was improper so if the service takes place far enough in advance it is unlikely the defendant will even raise the issue knowing that the complaint can be re-served based on the information the defendant is now disclosing. 

Howard Altschuler

 (Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2014 by Howard Altschuler, All Rights Reserved