The Significance of Effective Service
The importance of proper service cannot be overstated; it is the process by which a party to a lawsuit is properly notified of the proceedings against them. Proper service also guarantees that the plaintiff did their part, and fairly gave legal notice of the suit. If service was improperly done by the plaintiff, the court system will set aside any judgments that results from the improperly noticed proceeding. If you do not properly serve a party, and that party loses the case, the improper service likely will work in favor of the defendant because he or she will be able to show that the case was not fairly and properly brought against them .
In the event of improper service, the judge or other officer of a court will set aside the judgment unless good cause is shown for the failure and there is no prejudice to the party affected by the error in failing to request proper service. You must never assume that a party has been properly served. There are some cases in which minor errors in service do not warrant setting aside a judgment. The reason behind this is that the big picture is service of the court papers ensures that the defendant is given all legal means of knowledge of the proceedings taking place against him or her. In a few, very specific cases, the court will allow for the fair and just outcome of the case without service due to a judgment being fair and supported.
Who is Eligible to Serve Court Documents in Colorado?
Most people can serve court papers in Colorado, provided that they are at least 18 years old and are not involved in the case they are serving. Colorado Statutes stipulate that "in all cases and through all stages of the proceedings, [service of process] shall be performed by a person 18 years of age or older." As explained on Colorado’s Judicial Branch website, "This means you cannot have your child serve the paperwork." Volunteers – who must be trained and certified in order to serve – are also not generally required. That said, some exemption may apply for cases involving family matters or dependency and neglect issues; this includes the service of all court forms and documents as part of a larger legal action or divorce matter. The Colorado Judicial Branch website also notes that "law enforcement personnel may serve any type of document, including summons and subpoenas," each of which is described in further detail below. In addition, Colorado allows for officials of the state (i.e., public trustees) or those acting as other legal representatives (i.e., receivers, guardians or conservators) to serve certain papers. When it comes to serving, some residents of the state elect to hire private process servers to handle service of court papers. In Colorado, anyone acting for pay in the service of process is required by law to be registered. The private process server registries in Colorado include: Registration is not mandatory, however, and thus the use of private process servers in Colorado will ultimately depend on the nature of the case – and thus the restrictions on the service of process – for individuals and for lawyers alike.
Methods for Serving Court Papers
Methods of Serving Court Papers in Colorado
When it comes to serving court papers in Colorado, there are several methods available, and the appropriate method largely depends on the circumstances of your case. By law, there are three primary ways to serve court papers.
- Personal service — This is exactly what it sounds like: giving a copy of each paper to the other party. If the other party does not have a lawyer, you can give them the papers directly, after which they complete the Return on Service and file it with the Clerk of the Court. If the other party does have a lawyer, you need to give the papers to their lawyer. The Return on Service also needs to be filed with the Clerk of the Court, but when you file it, you’ll need to state what happened each step of the way (that you attempted to give the other party a copy of the papers, whether you were or were not successful, whether they refused to accept service, and so forth). You must do this within 63 days of the date the first paper was filed with the court.
- Substituted service — If the other party is avoiding being served, the court may allow substituted service on them by any of the following methods: This only applies to papers served in a family law proceeding. Once you do this, you file the original with the Clerk of the Court (within 63 days of the date the first paper was filed with the court), and a copy is served on the other party.
- Servicing by mail — This method only works for cases where the other party has a lawyer (and not for divorce, legal separation, or allocation of parental responsibilities proceedings). Otherwise, this method is typically only available if all of the following is true: If all of the above are true, you send a copy of the papers to the other party by telling the court that you are doing so by mail. You still have to go through the process of the other two methods once you have confirmation that the papers were received. The verified statement needs to be filed within 10 days of its receipt.
Service Timeframes and Deadlines
When serving court papers, there are timelines or deadlines that must be accomplished in a specific amount of time and deducted from that time period and any other deadline to accomplish something. For example, with filing a Complaint, you must have it served within 120-days from the filing of the Complaint or the Judge will dismiss your case. If a summons or subpoena is being served, the time period for that shall be not less than 10-days. A civil subpoena may be served within 3-days of the date of issuance in the following circumstances: (1) if you want to secure attendance information of a witness; (2) if you wish to delay the start of a trial or hearing; (3) or seek the production of records within 24-hours. Proof of service must contain: (a) the cause number; (b) the title, (c) the method of service used, (d) the date of service, (e) the name of the individual who served the documents, (f) the time of service, if not made at the regular office hours of the individual who made the service, and; (g) the cost of service.
Dealing with Challenging Scenarios in Service
While the legal process surrounding service of process is cut and dry in the eyes of the law, that does not mean that the process itself will be straightforward. Belaboring the point, evasive defendants exist and they are not likely to make the process any easier. It can take a great deal of time to catch up with them or to find out if they have even moved to begin with.
It may also happen that you show up to serve someone at their home or workplace and discover that your information is faulty — the address could be a phantom or simply out of date. Sometimes someone just might take a message over the phone and tell you that the person you are trying to serve is on vacation or away on business. Finding the real person behind the wall is one of the more difficult hurdles when it comes to service of process.
So how do you handle situations where the address is faulty or when the person is actively avoiding service? In Colorado, there are some definitive answers — several rules may apply.
When service is attempted at residence or workplace , you can leave a copy with the person; in either case that person must be 18 years of age or older, and competent.
When you can’t reach the defendant in person, you can file a motion asking the court to allow service to be made in a way that’s otherwise acceptable and permitted by the law (service by mail, publication, email, or fax). You’ll have to show the court exactly what you’ve done to try to serve the defendant prior to asking for help.
If you don’t have an address or phone number, but you have some other info about where the defendant might be, you call a private investigator or skip tracer. Some of these professionals can track someone down — or they can sell you software that will help you track someone down.
You might investigate additional sources, such as an address database, personal references or a professional repository.
Some of the best skip tracers can track down the preposterous like nobody can. But remember that its not a game. The reason you’re tracking this person down is because of a legal matter, and your efforts should comply with legal and ethical standards.
Proof of Service: How to Document and File
After serving court papers in a case, the person serving them should get a sworn affidavit or declaration stating when and where the papers were served. While it’s important to have proof of service as soon as possible, you don’t have to get it done on the same day the papers were served. Once you have it, though, you should file the papers immediately with the court. Any mistakes will then need to be fixed through a "Motion to Set Aside," and that requires an extra filing fee and even more time spent getting everything lined up.
The information needed for the proof of service includes the date it was done, the address where it happened, and the method of service. You also have to include the names of the people who delivered and received the papers, along with the date and place of delivery. Failing to get this done quickly and accurately can waste time and resources. That makes it important to get it right the first time. A small mistake can cause court dates to be missed, or worse yet, a judge could issue a bench warrant for a party who is actually not missing.
Exceptions and Special Circumstances
In the realm of family law, however, there are some exceptions and special cases. For example, under Colorado law, special rules apply when serving papers on minor children of the marriage or to out-of-state defendants. The Colorado Civil Rules of Procedure specifies that service of process on children may be accomplished by the following methods: Special rules also apply when serving a spouse living out of state. Essentially, the process must be sent by certified mail, registered mail, or something similar so that delivery can be proven as having been received by the right person. In this case , the rules for how service is carried out differ from the standard rules, and other processes are not allowed. The Colorado Secretary of State may also accept service at the discretion of the courts as an out-of-state respondent. Although these rules differ from the standard methods, the party who served the documents must provide proof of service, submit it to the courts, and related fees must be paid. While there are special circumstances, the basic principles for how papers are served are still fundamentally the same.
