Changes Are Coming to Process Serving Businesses in California

This article intends to provide a historical context of the changes to the legal definition of an independent contractor for process serving agencies and process servers and the impact of AB5

At the time of writing this, several large process serving agencies are warning independent contractor process servers that they will only contract with those who incorporate and will no longer continue business relationships with individuals operating otherwise. Whether you are a process server, or a process serving agency owner, you should start planning.

Each process server and process serving agency should consult with a lawyer and accountant to deciding whether or not to form a particular business structure or to contract with another, which is best suited for their unique situation. This law is new, and there will be considerable risks and costs associated with the decisions made about this issue. Solutions suggested in this article may not be appropriate in each circumstance.

What AB5 Does

Assembly Bill 5 (AB5) was signed by Governor Newsom and amends and adds California Labor Code §§ 3351 and 2750.3 and Unemployment Insurance Code §§ 606.5 and 621.  It codified the holding in  Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (Dynamex). It creates a presumption that a worker who performs services for a hirer is an employee for purposes of claims for wages and benefits arising under wage orders issued by the Industrial Welfare Commission. In essence, the laws redefine an independent contractor in California.

By amending the California Labor and Unemployment Insurance Codes, it expands the application of Dynamex, which was based on a wage-order claim,  to apply to all workers.

Borello Decision

The seminal case defining independent contractor status of a worker, prior to Dynamex, was set forth in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello). That decision instituted a multi-factor test, and opined, inter alia, that a worker is an independent contractor who is free from the control and direction of the hiring entity in connection with the performance of the work, the person performs work that is outside the usual course of the hiring entity’s business, and the person is customarily engaged in an independently established trade, occupation, or business.  

Process Server Industry Specific Tax Regulation

In 1995, after several tax audits had targeted process serving agencies, the California Employment Development Department (EDD) promulgated an industry-specific tax regulation for the process serving industry. It recognized, with significant CAPPS’ input, that process serving agencies customarily operated using individual process servers as independent contractors.  The regulation considered 15 factors and assigned a certain weight to each, evidencing whether the worker would be considered an employee or an independent contractor. (Title 22, CPR. Section 4304-11

The tax regulation tracked the specifically unique features of the process serving business in light of the holding in Borello. The legal status of this specific tax regulation is unknown at this point because Dynamex rejected the Borello decision for a more worker-friendly standard. This regulation is no longer a guide for process serving agencies and individual process servers.  It may offer a reliance defense if Dynamex is deemed to be applied retroactively.

The Dynamex Decision

The Dynamex decision redefined an independent contractor with what is referred to as the three-pronged “ABC Test”.

  1. The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
  2. that the worker performs work that is outside the usual course of the hiring entity’s business; and
  3. that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed

Each one of these factors must be rebutted by the hirer, the contracting entity, to show that the worker was not an employee but a bone fide independent contractor.

Part B of this “ABC Test” is the most difficult hurdle for a process serving agency because an individual independent contractor process server, heretofore allowed under Borello and the aforementioned tax regulation, would now not be performing work “outside the usual course of the hiring entity’s business.” They will now be presumed to be an employee.

Retroactivity

In May 2019, the U.S. Court of Appeals, Ninth Circuit ruled that Dynamex should be applied retroactively. (Vazquez v. Jan-Pro Franchising Int’l, Inc., 923 F.3d 575, 586-90 (9th Cir. 2019)) However, in July the court suspended its decision, granted the defendant’s petition for rehearing, and certified the question of retroactivity to the California Supreme Court to decide the question.

The California Supreme Court is currently considering that issue which was not addressed in the 2018 Dynamex decision.

Legislation – AB5

 There was a cluster of State Senate and Assembly bills introduced to overturn or alternatively, codify Dynamex. AB5 was the bill that ultimately prevailed.

 The law codified Dynamex and created exemptions for over fifty professions and types of businesses which allowed operation under the previous Borello decision.   These exempt occupations would include, among others, licensed insurance agents, certain licensed health care professionals, registered securities broker-dealers or investment advisers, direct sales salespersons, private investigators, real estate licensees, commercial fishermen, workers providing licensed barber or cosmetology services, and others performing work under a contract for professional services, with another business entity, or pursuant to a subcontract in the construction industry.

Since the process serving industry did not receive a specific exemption, they are affected by the new law which changed the definition of an independent contractor. This also affects other businesses that operate in California and use independent contractors such as UBER, LYFT, the construction industry, etc.

This legislation is also a reaction to a changing reality of the workforce.   In 2017, a report from the U.S. Bureau of Labor Statistics estimated that nationally, 35 percent of workers participate in some form in the “gig economy.” 

This will have an enormous impact on the California economy. Businesses might just leave California to avoid it. Those that stay will be paying more in taxes. Workers will lose the flexibility to set their own hours and control when and how they work.  

On the other hand, workers will be protected from work-related injuries, and the worker and the state will not be subsidizing uncovered medical costs. Furthermore, the state and local governments will be receiving more tax money. The law authorizes the California Attorney city attorneys and local prosecutors to sue companies for non-compliance.

Business to Business Exemption

The law also provides an exemption for business to business contracting relationships and sets forth specific guidelines. Those are codified in new Labor Code § 2750.3(e):

(e) Subdivision (a) and the holding in Dynamex do not apply to a bona fide business-to-business contracting relationship, as defined below, under the following conditions:

(1) If a business entity formed as a sole proprietorship, partnership, limited liability company, limited liability partnership, or corporation (“business service provider”) contracts to provide services to another such business (“contracting business”), the determination of employee or independent contractor status of the business services provider shall be governed by Borello, if the contracting business demonstrates that all of the following criteria are satisfied:

(A) The business service provider is free from the control and direction of the contracting business entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.

(B) The business service provider is providing services directly to the contracting business rather than to customers of the contracting business.

(C) The contract with the business service provider is in writing.

(D) If the work is performed in a jurisdiction that requires the business service provider to have a business license or business tax registration, the business service provider has the required business license or business tax registration.

(E) The business service provider maintains a business location that is separate from the business or work location of the contracting business.

(F) The business service provider is customarily engaged in an independently established business of the same nature as that involved in the work performed.

(G) The business service provider actually contracts with other businesses to provide the same or similar services and maintains a clientele without restrictions from the hiring entity.

(H) The business service provider advertises and holds itself out to the public as available to provide the same or similar services.

(I) The business service provider provides its own tools, vehicles, and equipment to perform the services.

(J) The business service provider can negotiate its own rates.

(K) Consistent with the nature of the work, the business service provider can set its own hours and location of work.

(L) The business service provider is not performing the type of work for which a license from the Contractor’s State License Board is required, pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code.

                The following is a summary of this section. If a process serving agency contracts with a legitimate business that operates in accord with Labor Code § 2750.3(e), they may operate under Borello.  Under the law, the burden is on the contracting business to show:

  • The process serving business must be legitimate, minimally operating as a sole proprietorship
  • The process serving business is free from the control of the manner and means of the contracting business
  • The process serving business is providing service to the contracting business and not directly to its customers
  • There is a contract evidenced with a writing  
  • If the work is performed in a jurisdiction requiring a business registration or license, it has obtained one
  • The process serving business maintains a separate location from that the contracting business
  • The process serving business is customarily operating as an independently established business of the same nature as the contracting business
  • The process serving business contracts similar services to the other businesses and maintains clientele without restriction from the hiring entity
  • The process serving business advertises and holds itself to the public to provide the same or similar service
  • The process serving business provides its own tools, vehicles, and equipment to provide the services
  • The business can negotiate its own rates
  • Consistent with the nature of the work, the business sets it own hours and location of work

If a process server is truly in business, then a process serving agency will be contracting with another business.

This, however, can make it harder to take on a new person who is looking for a job or wants to become a process server. A person who makes more than ten services of process must register as a process server.  Taking on a new person to provide service assignments will force a business to treat them first as an employee.  Only if they eventually form a business under the directives in Labor Code § 2750.3(e) can they contract as a business. As a business owner, it may be unlawful to condition employment on the employee eventually forming a business.

Individual Independent Contractors   

Labor Code § 2750.3(e)(2) addresses individuals who have not formed a business and are retained by a contracting business for services.  Those individual workers are deemed to be employees under the Labor Code.  

(2) This subdivision does not apply to an individual worker, as opposed to a business entity, who performs labor or services for a contracting business.

Costs for Misclassification

The costs for misclassification of a worker can be devastating to a business.  If an EDD auditor contacts the business and demands to see all of the 1099 forms, they may demand records from the prior four years. If they determine that some or all of the workers were suspected of misclassification, they can make an assessment for unpaid taxes on the full amount paid to the worker, which would also include penalties and interest.

If the workers are determined to be employees and not independent contractors, the employer will be responsible for paying both the employee and employers’ contribution of Social Security and payroll taxes, unemployment insurance and employment taxes.

The employee contribution amounts may be offset by obtaining affidavits from the employee stating that they filed their taxes predicated on the previous amounts reported on the 1099 they received from the business. They must provide separate affidavits for each yearly quarter at issue.

Nevertheless, the amounts a business may be obligated to pay can be substantial.

Furthermore, misclassified workers would likely be reported to another agency to audit a determination of whether worker’s compensation insurance was paid and add yet another round of assessments to the business.

These audits don’t always come directly from the agencies.  A worker, disgruntled or not, makes a claim to the Department of Labor alleging they did not make minimum wage, or were given appropriate breaks, or were underpaid for overtime hours. An independent contractor might make a claim to the EDD for unemployment benefits, and if they prevail, the case could ripen into a tax audit and a tax case. That happened to me 30 years ago.

As mentioned earlier, some process serving agencies are urging process servers to incorporate or form a limited liability company. They will ensure compliance with the law in two ways because a) they are operating under the business-to-business exemption under Borello and, most importantly, b) they do not have to send a corporation or LLC a 1099 form. On the other hand, this abrupt change in employment status could trigger a wrongful discharge suit.

Costs for Forming a Corporation

Costs for forming a corporation or LLC vary, but the filing fee is about $100 and the filing of a Statement of information is $25.  It can be done without a lawyer, or an estimate of about $500 through Legalzoom.com.  One lawyer estimated that forming through a lawyer would run about $1500.

Additionally, there are more operating costs by forming as a corporation.

  • There is a minimum yearly tax of $800
  • Yearly documentation to operate (estimated $500 per year for a lawyer to maintain proper records)
  • Maintain books and records which include shareholders, corporate minutes, accounting ledgers, opening and annual meeting minutes
    • Record all corporate decisions and actions of the corporation
    • Corporate resolutions to authorize corporate expenditures
  • Obtain an EIN and pay employees (including officers or managing members)
  • 2 tax returns to file by the business and owner: corporate and individual
  • Annual registration and annual fees

Finally, now is the time for process serving agencies to begin thinking about how to operate starting January 1, 2020.

A business will be taking on a greater burden by converting independent contractors as employees.  If the law changes again making it more advantageous to operate with independent contractors, converting back to treating employees as independent contractors, whether it is the same employee or those performing the same function as an employee will surely trigger an audit.  The presumption is that if the employee did perform or current performs the same job as an employee, all similarly situated workers would be deemed an employee.

There is not only tax liability.  There is also tort liability.  As an employer, a business is vicariously liable for the damages incurred by or to an employee.  If the employee is involved in an accident on the job, the employer is also responsible.  If the employee process server gets into a fistfight with the person being served, the damages incurred by that person is also the employer’s responsibility.  If the employee is injured involving these scenarios, the employer’s workers’ compensation policy will be there to compensate the employee for his or her injuries.

My Solution?

I will be notifying the few independent contractor process servers that, based upon a legitimate business decision, that I intend to contract only with businesses.

I will then form a checklist, predicated on the business-to-business directive, asking for the items on the list. If the server wants to be in business, we’ll do business. I now have a duty to show that the business is a bone fide business,

  • Form of Business
  • Business address
  • confirmation of process server registration.
  • Confirmation of a business license.
  • Employer Identification Number (EIN).
  • Price List list and negotiate it.
  • etc..

You get the idea.

Forms Committee Report – March, 2017

March 20, 2017

CALSPro Board Meeting 3/25/17

There are 2 form proposals I am monitoring and commenting on which will have an impact on process servers in 2018.

  • Request for Entry of Default (revise form CIV-100; adopt form CIV-105)

 There are proposals to revise the existing Request for Entry of Default form, and to adopt another specifically for default judgments against defendants whose debt was purchased and assigned to a third party.

Requirements of the Fair Debt Buying Practices Act

The Fair Debt Buying Practices Act, which took effect January 1, 2014, imposes a number of requirements on debt buyers pursuing collection efforts, including that no default judgment may be entered against a debtor defendant unless the debt buyer plaintiff submits certain documents, authenticated through a sworn declaration, to establish specified facts (Civ. Code § 1788.60(a), (b)). If the debt buyer has not complied with the Act’s requirements, the court cannot enter a default judgment for the debt buyer (Civ. Code § 1788.60(c)).


  • Writ of Execution (revise form EJ-130)

The writ of execution form changes were initiated last year, and were not revised due to a number of comments received.

The form is going through a significant revision.  The identifier as to whether the case is a limited or unlimited case has been refined, eliminating the apparent confusion and rejection for a failure to distinguish small claims case and family law case as limited or unlimited cases.  The designation is critical for the sheriff to determine timeliness for the time to appeal (30 vs. 60 days) when a claim of exemption is filed.

The item numbers are being rearranged, a belief that making the entries fall more logically while calculating debits, accrued interest, and how credits are applied.

To accommodate notice to the Judgment debtor, a third page is being added.

The committee is also revising and cross-referencing the Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest (form MC-012) to more fully integrate the information on this form to prepare the writ form more accurately.

The committee is also developing a proposing a new form, Information Sheet for Calculating Interest and Amount Owed on a Judgment (new form MC-013-INFO) to explain how credit payments received from the debtor towards interest, costs, and judgment principal, and refers the creditor to form MC-012.


The Judicial Council Invitation to Comment Memos are linked below and explain these changes in more detail, and displays the proposed changes to the existing forms, and the proposed new forms.  You may also register comments.

Civil Practice and Procedure: Request for Entry of Default

Civil Practice and Procedure: Writ of Execution

Tony Klein

New Prejudgment Claim of Right to Possession form

The Prejudgment Claim of Right to Possession form has been revised to conform to a change in the law governing the service of unknown occupants in an unlawful detainer action. Although the law codified the form as of January 1, 2015, it was only published by the California Judicial Council on June 15, 2015.

The change in the law, CCP § 415.46, requires an unnamed occupant claiming a right to possession to use the form Claim of Right to Possession and Notice of Hearing to file if they were not served with a Prejudgment Claim of Right to Possession.

By inference, process servers now should be serving the new Prejudgment Claim form on the unnamed occupant(s) so they can use it for filing a claim.

The new form reconciles prior amendments to the prejudgment claim procedure further assuring notice to unnamed occupants of a foreclosed property.

The forms are linked below:

Prejudgment Claim of Right to Possession

Claim of Right to Possession and Notice of Hearing


My CALSPro Forms Committee Report references other changes to the forms that may affect California process servers.


Back to Process Server Institute home

 

What is a Proper Proof of Service?

By Tony Klein, Reprinted from the May 2007 Edition of PSI Newsletter

Failure to Prove Service Results in Dismissal of $7.7 million Case

In April, 2007 I received a memo, indirectly, from a process server that referenced a $7.7 million case that was dismissed because an attorney service signed a proof of service instead of the process server.

Attached to that memo was a copy of an order from a US District Court Judge in Central District who set aside a $7.7 million default judgment because the process server stated at the hearing that a) the signature on the proof of service was not hers, and b) she could not provide accurate details because she did not have her “work order” containing her service notes. The judge also ordered the Plaintiff to notify the court as to who signed the invalid proof of service for possible criminal prosecution for perjury and forgery.

Before rendering its decision to dismiss the case, the court attempted to determine whether proper service had been made. A proof of service signed on behalf of another is not the “best evidence” to prove service. It was later learned that the forwarding service had indeed signed the proof of service, but apparently at the direction and authorization of the company who hired or contracted with the person who actually served the lawsuit.

Notwithstanding the invalidly signed proof of service, the court sought to ascertain whether service had been made through other evidence. It attempted to do so through the process server’s testimony and business records. Unfortunately, the process server testified that she did not have the work order, her notes, or any other record prepared at or near the date of the service. Because the plaintiff could not support the service efforts, the judgment was set aside.

A subsequent $7.7 million complaint was filed in US District Court in San Diego. Sholodge, Inc., the plaintiff in the previous two cases filed a third suit against the forwarding agency, APEX Attorney Services, Incorporated, and the servicing agency, XL Professional Services, Inc., alleging negligence, breach of contract, and negligent and intentional misrepresentation. An answer was filed by APEX with an affirmative defense that XL gave them permission to sign. As of April 27, 2007, XL was in default and had yet to file any response.

Other Illustrated Cases

In the 1970s New York City saw a number of investigations into “sewer services”. The term is used colloquially for when a server tosses the legal documents in the sewer instead of serving them, and then claims that they were served. The FBI seized state court records to create databases of affidavits of service. Some affidavits of service showed that one server purportedly served papers in four boroughs at the same time. Process servers where jailed for this. A local process serving licensing law was enacted, and required that a sequential service journal be maintained under threat of fine or revocation.

A few years ago ABC Legal was requested to serve documents for Lassen County (California) – Department of Child Support Services. One such defendant was purportedly served in Kansas, and a forged proof of service was provided to the court. The defendant found out about it later when his wages were garnished, tax refunds intercepted, and he was denied a loan to buy a house. A default judgment had been entered against him.

When the Lassen County DA refused his request to set aside the judgment, he was forced hire a lawyer and filed a motion to set it aside. He then sued ABC for his legal costs, the damages he incurred in tarnishing his credit, and for exemplary damages due to the forged proof of service.

ABC filed a cross-complaint against Kansas Investigative Services and the process server. They were demurred out of the case after the process server provided a written record attesting that he did not serve the defendant.

The case ultimately settled but its affects are still felt. Although fax filings are permitted in California, Lassen County Superior Court will no longer file anything other than an originally signed proof of service.

A more recent case of fraudulent affidavits came to light in the Maryland.

Kevin Patrick Fitzgerald of Patrick Investigations was sentenced to three years of a ten year sentence, $20,000 in fines and five years of supervision on an earlier conviction for conspiracy, perjury, subornation of perjury and obstruction of justice in connection with a scheme to defraud the District Court of Maryland in Towson. Fitzgerald was convicted of creating and filing hundreds of fraudulent affidavits of service that did not occur. When the defendants failed to show for the court dates, default judgments were obtained.

Quoting from a Maryland Attorney General press release, ”Judge Finifter characterized the Defendant’s actions as, “a major, massive scheme to defraud the District Court, consumers and his own client, . . . resulting in a substantial interference with the administration of justice.”

Impact on Our Profession

Events such as these bring notoriety to the process serving industry and cast a negative image upon our profession. Fortunately, these practices are the exception rather than the rule. Openly discussing them allows us to bring into focus the importance of the professional process server’s responsibility for providing proper proof of service, and maintaining proper process serving records.

The proof of service is a process server’s work product. A valid proof of service is what we receive compensation for. It is the final act in a series of events that our clients and the courts depend upon. When the integrity of the proof of service is compromised, the efforts leading up to it are likewise compromised. Without proper service, and proof thereof, what follows in any civil case may be jeopardized as illustrated by these cases.

An Introspective Look at Our Business Practices

Attorney service businesses have evolved into multi-million dollar enterprises.  We all take advantage of technologies that make our businesses more efficient. Those efficiencies may involve a fax machine and a cell phone. For some that’s where it stops. There are some process servers who still type proofs of service, and others who have never typed one. Others are quickly out-pacing those and are developing intra and interstate consortiums and partnerships that transfer documents electronically between themselves, and the courts, and have their servers inputting real time service information from their BlackBerry enabled phones.

The technology has changed, but the manner of service of process, and providing proof of service, has remained relatively unchanged. The courts continue to rely on personal delivery of paper documents. When a dispute arises over whether service was proper, they rely on a document signed by the server, much the same way they have since our country began.

What has changed is the expectation of our clients. Large law firms, equally wired to the world as the more technologically advanced process serving agencies, expect immediate responses. When they send a “hair-on-fire” assignment to a process server, they need continuing status reports. They want the assignments commenced immediately and want proofs of service just as quickly. It does not matter that a subpoena, set for a month and a half from now; is sent out on Thursday evening to be served that same evening on the other side of the state. They want proof of service with a wet signature on their desk by Friday at 9:30 AM. If it is not there, they will be on the phone asking for one.

Maybe it’s a senior partner in a firm who screams at everyone within shouting distance who wants it. Maybe it is the client of the law firm with a short timeline. Maybe someone in the firm sat on the assignment for a week, and now needs rapid action to save his job. Regardless of the reasons, these ever shortening timelines, fueled in part by the instant communication, affect our businesses.

It is within the context of these time expectations that that errors in judgment can be made and shortcuts taken to have the proof of service back to the client, or the court, quickly. Signing the name of a process server, with or without that person’s consent, is a shortcut that is not only improper but illegal as well. This illegality would be compounded should a person sign on behalf of a process server and that signature is attested to by a notary as a sworn statement of that process server. Obviously, these acts must be avoided.

The need for speed is not limited to large firms with high profile or multi-million dollar cases. It happens with large government contract assignments as well. Depending on the jurisdiction, and the negotiated rates, these contracts regularly run well into six figures per year. Since they involve hundreds of process serving assignments, aggressive process serving agencies submit low ball bids that drives the “per service” cost down considerably. These contracts are granted to the lowest, or in many cases the most experienced bidder, and are “adhesion contracts,” a term generally meaning a one-sided “take it or leave it basis.” It is not uncommon to see a requirement for daily pickups, weekly status, and proof of service return within 5 days of service, and a 20% discount for late responses.

What Lessons Can Be Learned From These Incidents and Our Experiences?

First, “sewer” or fraudulent service of process is illegal and should not be countenanced by anyone. Knowledge of such events and failure to report them, or take action to prevent them, implicates all involved. As professionals, we have an obligation to conduct ourselves ethically and to insist that others in our profession do the same.

As a process server, and as an attorney service operator, we owe it to the courts and our clients to provide professional service. We also owe a duty to the public. Our professionalism, our word and our talents are necessary. They are all interlinked, and if any of those fail, it all crumbles. The public is affected, our clients’ cases are affected, and the impact on the court can be substantial.

Second, it is the process server’s responsibility to sign his or her own proof of service. Do not allow anyone to sign it for you no matter what pressure is exerted upon you. Service is the hard part. Providing proof of service is equally challenging, and is as important to the court as the service is. It is the culmination of the entire series of events. If a notarized affidavit is sign by someone other than the actual affiant, it’s a crime for the signer and the notary public. Every process server knows that, or should know that.

A proof of service is challenging because it must be prepared properly and accurately. It must be signed and attested to. Process servers are busy, attorney service operators are busy, and coordinating schedules for signatures can be the ultimate challenge. Once completed, shipping, delivery, or filing the proof takes additional time and effort. A nagging or demanding client for a late proof is not only annoying but a significant impact to any office. Forwarding the proof of service is the final act of the services that we provide, and it holds up the bill. Few clients will pay a bill for service without the proof of service.

Third, maintain records.

Maintaining Records

Document anything relevant or remotely relevant. The attorney service is responsible for retaining documentation, e-mails, text messages, notes of phone calls, especially when the original instructions change.

Evidence of any service assignment should be reflected in documentation. An attorney service and process server creates that evidence starting when the assignment is received. Some states, such as Texas and Florida, require the server to state when he or she received the process for service.

The attorney service agency receives evidence when first contact is made. It might be a phone message, a fax or e-mail. Keeping a record of that, such as a fax cover sheet or e-mail header, clock-stamps the date and time how and when the assignment was received, and approximates when the service was dispatched. Server’s notes and office entries preserve the record and memory and create evidence of service.

Notes of attempted contact can be part of that evidence. A record of a phone call to the defendant, even if there is no answer, constitutes evidence of due diligence.  Saving a company business card or building security sticker, or signing a security guard’s for entry into a building can evidence attempted service   The observations of the server – the cars parked around the house, the date and time of attempts at service, names, descriptions, and conversations, and manner of service  – all are also evidence of service. Proof of service memorializes of act of the service.  Without the server signing a proof of service based upon personal knowledge, the value of it is greatly diminished.
Written records are vital to this process. When made at the time of the event, it is presumed to be more trustworthy than a later recitation or reconstruction of events. Since the record is made by the server, contemporaneously with the service act, it can be relied upon, with proper foundation, as better evidence than the proof of service. It is also invaluable when proving service, especially when the server is unavailable. Testimony of the custodian of record, such as a process manager, could attest to the business practice of the attorney service. The written record of the server, if not maintained by the server alone, may be relied upon to prove service, although it holds far less persuasive value than the server’s personally signed declaration.

A server should also keep independent records of their services, but I would be surprised if more than 20% do.

What Can We Do To Improve Our Profession?

The attorney service is indeed in business to make a profit, but our essential obligation is to the court. If a proof of service is provided to a client and the court, it should be signed by the person who has personal knowledge of the facts they are attesting to. Otherwise, it is a forgery, or a misrepresentation, and subject to both criminal and civil sanction, and could expose the offender to significant liability. Since it is an intentional act, the errors and omissions carrier would likely deny coverage.

Keep written records. Write thorough service notes on work orders, or at least capture relevant facts and observations. Keep a file, and be consistent with record-keeping. If it is necessary to support a service at court, make sure the process server is prepared with copies of the written record. If the process server is unavailable for timely proof of service, prepare a written record, based upon business records, and attach relevant copies to the declaration. If necessary, plan on testifying about the service and bring the original records for the court to review.

This issue will certainly become increasingly relevant as the advancing technologies of electronic or digital signatures and e-notarization become more common. At present, the use of these technologies has not been universally accepted by the courts. Eventually proofs and affidavits of service will be integrated into the process serving profession. The courts must have absolute assurance that these “signed” declarations are indeed that of the person making the statement.  The analogy with paper filings, and what an original signature represents, must be consistent.  This must be an industry standard.