BLOG

Service on Incompetent

by: Johnelle Rodriguez

What comes to mind when you think of the word “incompetent?”

According to dictionary.com, “incompetent” has some of the following definitions:
– Lacking qualification or ability
– Incapable
– Being unable or legally unqualified to perform specified acts
or to be held legally responsible for such acts (law)
– A person lacking power to act with legal effectiveness (law)
– A mentally deficient person

May is Mental Health Awareness Month.

Although service of process and investigations deal with legalities, mental health does play a role in executing these services. To be more specific, if someone is declared “incompetent,” special measures must be taken when serving documents on the individual.

But let’s back up a little.

First off, the court is the only entity that can declare an individual incompetent. This declaration is a medical opinion based on someone’s medical history, mental health issues, or physical health issues. And this is usually determined by a doctor.

“Your husband, your wife, your sister, your brother, your aunt, or your uncle can’t declare you an incompetent without a legal proceeding,” Bob Fischer, president of Professional Process Servers & Investigations, Inc., explains.

When it comes to court cases, anyone has the potential to be involved in one. We have served people who have been deemed incompetent, and they’re usually the defendants in a case. Sometimes, the attorneys for the plaintiff don’t know of the person’s condition until the process server actually goes out and tries to serve him or her. All this being said, there are specific ways to handle these services.

Guardians ad litem are those who sort of act as a voice for the incompetent, in general terms.

“The guardian ad litem is like a power of attorney, in a really broad sense,” Bob says.

They are usually appointed by the court for someone who is declared incompetent and has to be involved in a court proceeding. They usually have the best interest of those they are representing at heart. In order to become a guardian ad litem, you must be appointed by the court by going through a special procedure, proving you can handle the different legal practices for an incompetent person.

Florida Statute 48.042 outlines how these types of services should be handled. As a process server, when you know the individual is incompetent, you must serve under this statute. Two copies of the documents must be served on the person who has control over the incompetent, whether it’s a family member, a hospital administrator, a mental health hospital administrator, or a guardian ad litem. However, a process server who attempts to serve an individual may not have any idea that the person is incompetent. The address the server attempts could be a facility where the person is being kept or a residence, where the person lives. When the server is advised of the person’s condition, this must be verified by documentation provided by the court.

As in any situation, the server must use his or her discretion when seeking to obtain service in a hospital or a mental facility. A process server should know not to just go in and try to find the person and serve the documents at his or her bedside.

Bob says that when he goes to the facility, he makes contact with one of the directors, whether it’s the director of nursing or someone in the facility who has control. He explains why he’s there and the documents he has. Usually, the administrator can be served. Bob typically tries to determine the person’s condition and reason for being at the facility before he tries to serve the documents.

Sometimes, people will be in the hospital to try and avoid service, which has happened to Bob several times. One time, a person faked a heart attack and had the ambulance come and take him to the hospital. Luckily, a neighbor knew what hospital he was in. So Bob found this out, took matters into his own hands and went to the hospital and contacted the local security official. He explained what was going on, and the security laughed a little and said the guy he was looking for did not have a heart attack. He told Bob what bed he was in and where he was located in the hospital. As soon as Bob served him, he got up out the bed and walked out of the hospital, cursing and screaming and hollering at Bob.

“Be very careful,” Bob advises. “Tread very carefully. It’s a very thin line.”

If someone has a real problem, you don’t want to just walk into the hospital and try to serve him or her; the service can potentially put the individual over the edge. But if he or she has not been declared incompetent and is in a hospital, the server can go up to the individual’s hospital room and try to serve the documents.

Say the servee has a heart condition, for instance. Bob would contact the head nurse at the station and make a determination of the severity of the person’s condition, such as if something like serving process could trigger an episode. Therefore, being careful is key. Once he discovers this information, he usually goes back to the client to confirm what should be done next.

For additional information on serving documents in hospitals, check out the following link: How to Serve Papers in a Hospital.

Some mental health facilities will not grant servers access. Some rehabilitation facilities, such as drug rehab and substance abuse rehab centers will not let servers in, either. At times, they won’t even confirm or deny if the person being sought is there. And this is legal, especially if it’s a Federal Class A facility.

“You’re not gonna get anywhere near that individual,” Bob warns.

With halfway houses and some of these facilities, it’s up to the process server to use some ingenuity to get people served. For instance, if it’s an outdoor facility with people hanging out on the street corner or out in front of their apartments, it would be smart for the server to go up and ask for the person.

Grow a heart.

That’s the advice Bob has for some attorneys who just don’t care. Some want the server to go in and deliver documents, regardless of the servee’s medical condition or reason for being in the hospital, when there are other ways to handle the matter. ♦

Risky Business

by: Johnelle Rodriguez

It’s dangerous.

Think about it. Imagine you’re home alone and someone you don’t know approaches your front door and starts to knock. The average person will either answer the door with caution or will ignore the knocks if he or she does not know the person; I’d probably do the latter. If it’s dark out, even worse.

Being a process server is a risky job that comes with its own set of hazards.

Just two years ago, a 36-year-old process server was killed from an attack by several dogs (Dangers of Process Serving Hit Home in Texas). After she made an attempt at a rural location, she was walking back to her car, which was parked on the road, and was mauled. Her body was not discovered for several hours, when the caretaker of the dogs finally arrived and called the police.

Another situation in 2016 highlights a sheriff who was shot and killed when serving eviction papers to a man (Deputy killed, 2 deputies injured, serving eviction notice in Park County; Suspect shot and killed). Two other deputies accompanying him were also shot but survived. The recipient of the eviction was known to authorities and had even posted on Facebook that the cops wanted him dead.

Therefore, it helps to know who you are serving. Know if this person has a criminal history. Know whether there is a possibility that this person is going to be hostile toward you. If something happens, try to diffuse the situation as quickly as possible.

Bob has had guns pulled on him. There was one instance where if he had not disarmed someone, he would have gotten shot.

Service was taking place with out-of-state papers at an office in Miami-Dade County. Bob had a U.S. Marshal with him along with another process server. The marshal was there to repossess John Doe’s boat. The other process server was there to make sure things went smoothly.

They were taking precaution.

When they entered the office, they saw the Mr. Doe behind his desk, talking on the phone. The receptionist was hostile toward Bob and the two individuals with him. She told them the guy they were looking for was not in and that she didn’t want them in the office. She told them to leave.

The marshal identified himself with his credentials. At this time, Bob went into the office and identified himself as an officer of the court. Mr. Doe reached over to his left-hand side into a duffel bag, and Bob could immediately tell he was pulling out a gun. Mr. Doe racked a round into the chamber, and as soon as Bob saw this, he went over the desk and knocked over the chair.

Mind you, Bob is a tall guy, well over six feet. So his height was to his advantage.

Bob stood on Mr. Doe’s hand that was holding the gun, and then the marshal ran in and put Mr. Doe in handcuffs.

“The man lost his boat and lost his freedom,” Bob said.

Aside from dealing with guns, Bob has had people hit him with their cars and throw hot coffee on his face.

As crazy as all of this may sound to us, process servers can face this sort of thing every day; it is the norm. People may get up in their faces and will sometimes put hands on them. And this is considered assault. Sometimes, the local authorities step in and come to the scene in assistance.

However, process servers aren’t well liked by a lot of different agencies, especially sheriff’s departments, since they take a lot of work off their hands.

According to Florida Statues, papers can be served 24 hours a day, 6 days a week (Sundays are not included). Depending on the time of year, when it starts to get dark outside earlier, process servers may have a certain cut-off time when they will stop attempting papers. If not, they run the risk of people becoming afraid. For instance, a single mother most likely would not open the door during later hours of the evening.

However, there have been instances where service has had to take place in the middle of the night because that’s the only time the recipient was accessible. There was once a gentleman, John Smith, who was here from the Carolinas, on the beach. The client was with Bob, and they later discovered Mr. Smith was hiding in the dumpster at the back of the hotel parking lot. They knew Mr. Smith only went out at night and would return to the hotel around 1:30, 2:00 in the morning. So he got served at this hour.

All this being said, process servers accept their duty with a grain of salt. All they can do is to be prepared and use proper judgment with each service. From the outside, we don’t see all the dangers process servers face. They are to be highly respected. ♦

 

 

 

It all starts in house.

 

When we think of serving documents, we think of the act of delivering papers to someone. And although this is essentially what service of process is, we tend to neglect what goes on behind the scenes.

The players include attorneys, paralegals, process servers, and staff of the process serving companies, and they all have respective roles that are equally necessary. Without attorneys, there would be no papers to serve. Without paralegals, work would not be distributed to process servers and communication between attorneys and process serving companies would be virtually nonexistent. Without process servers, there would be no one to serve documents. Without office staff of process serving companies, there would be no one to properly route documents to their rightful servers, there would be no one to generate affidavits of service, there would be no one to generate invoices, there would be no one to communicate between client and server, and there would be no one to micromanage each service to ensure clients are kept abreast of what’s going on.

As you can see, the office staff plays multiple roles, and the ones I listed are only a few. In our office, we have a manager, an assistant manager, a send-away clerk, two data entry clerks, a billing clerk, and an accountant. Each position comes with its own duties and challenges, but it’s important to recognize that every person plays an essential part in the day-to-day functions that make up our business. Without even one of these positions, we would fall short of a consistent flow. ♦

What Clients Want

Attorneys can be demanding.

People, in general, can be persistent when they want something. At Professional Process Servers & Investigators, Inc., our number one goal is to please the client. In order to do this, we must keep in mind what the client wants from us.

Below is a general infographic of what clients are typically looking for from process servers and process serving companies.

 

what do clients want (from process servers).png

More on what we Do

Bugs.

This is another name for listening devices that are used covertly. Our company, Professional Process Servers & Investigators, Inc., has the capability to electronically “sweep” for these bugs, and we do this for several large companies; they get swept twice a year.

To be more specific, we have had high-profile individuals here in South Florida who have been involved in divorce cases and hired us to sweep their new residences. The motive behind this was to make sure their spouses were not using these audio devices or hiring a detective to work on their behalf. We can also do counter-surveillance measures to make sure the husband or wife is not being followed by another investigator.

This type of service is something that is understandable for well-known individuals. However, it is not something we do on a regular basis.

Planting a bugging device on someone’s car to track where he/she is going seems like a simple fix to catch someone’s whereabouts. However, this is not legal. The only way this can lawfully be done is if someone hires an investigator and a device is placed on a vehicle this person owns. For instance, a guy may want to know where his wife is taking his or their vehicle at 2:00 in the morning. If you were in this position, wouldn’t you want to know the same?

“But we believe in not even getting close to the grey line,” Bob, President of Professional Process Servers & Investigators, Inc., warns.

The work we do is always legitimate, and we always make sure to abide by the law and by the Florida Statutes, especially because the majority of our clients are law firms.

A privilege we have, which is a key advantage for investigators and law enforcement agencies in general, is special access to databases and sites that allow us to obtain discreet information about individuals. For instance, say we are working on an accident case and have an accident report. There is a witness, John Doe, with an address and date of birth taken by the police officer at the scene. Three years later, the case is going to court and the witness needs to be subpoenaed to take a deposition. However, it is discovered this person moved two years ago.

There are certain sources we use that allow us to locate individuals in circumstances such as these. The company that owns this particular database monitors Bob, our lead investigator, to make sure all their information is secured, locked up, and shredded.

We have a responsibility to protect the privacy of the individual, just as we protect the dates of birth and social security numbers provided in subpoenas for records by redacting them. There is no reason for personal information to get out there. The only other party that needs to have the individual’s information (i.e. vehicle information, tag information, etc.) is the process server going out to serve the document(s).

Here at Professional Process Servers & Investigators, Inc., we also do simple asset searches of real properties, cars, boats, planes, trains, pretty much anything that is considered to be a real property. When it comes to banking-related information, we are able to obtain this, but because of the amendments to the Privacy Act of 1974 (Computer Matching and Privacy Protection amendments) that were enacted in the 1990s, as private investigators, with today’s new technology, it is practically next to impossible. However, with a certified copy of a judgment from our clients, we can search banks and search for individual bank accounts by using the person’s information.

Once we obtain this information, we forward it to the client, who then sends over a writ of garnishment and finds out how much money is in the account. This is how attorneys are able to satisfy judgments. Most of this work is actually done electronically.

Our services are not confined within the United States; we actually perform investigative duties internationally. If a client wants to pay money for the team to go to another country, find an individual, and perform surveillance on this person, we can do this. We have a network of mostly retired FBI agents whose members are tactful and ready to take on these heavy jobs.

Once, there was an individual here from Sweden who was claiming a very severe injury. He showed up in court unable to walk, unable to talk, and barely able to lift his head. Afterward, he got on the plane and went back to Sweden. One of our retired FBI agents there was able to get video of the gentleman walking his grandchild into the park, and he was playing with the child, pushing the child on the swings, throwing the child up in the air and catching it.

“It was pretty damaging,” Bob said.

When the man came to his next hearing, he showed up in court in a wheelchair. When the video was shown in the courtroom, the case was thrown out.

Our most popular investigative service at Professional Process Servers & Investigators, Inc. is running skip traces. We do about 5-10 of these a day, and we do an average of two background checks a day.

The point of sharing what other services we do on a regular and on a not-so-regular basis is to expose what actually goes into a typical investigation. Sure, serving documents is the bulk of our business, but the investigative side of things is a lot more intricate and is necessary at times. There will always be jobs that require some extra attention and thorough examination.

Even when documents are served to someone, this does not mean that everything is over. There are still trials and hearings and depositions that subsequently take place that ultimately determine the weight of the case, and sometimes, along with these, come investigations of the persons seeking relief.

As I stated in my previous post on surveillance, no, we are not stalkers. However, the investigative work we do requires us to act covertly and use our best judgment to obtain as much information as we can on an individual. The main objective of the investigator is to gather information and nothing more. Investigators do not enforce laws and are not directly involved in the cases they work.

The simple goal is to get to the truth. ♦

Why surveillance?

White on rice.

When we think surveillance, we think of the investigator being on top of the person of interest, not letting that person out of his sight. In movies and TV shows, we see detectives and officers going on high-speed chases and hiding out on tops of buildings with binoculars to keep an eye on their subjects.

Think of The Wire. In efforts to crack drug cases, the detectives in the show went to all sorts of lengths to catch suspects. They would perch on roofs of buildings, hide on top floors of multiple-story buildings and peer through windows with their binoculars and cameras, and would sit in their patrol cars and surveille for hours on end. They would even go undercover and use deception when necessary, but this did not always turn out well.

Unlike the surveillance done on screen, the type of work done by our company usually involves non-criminal cases, mostly insurance defense work with someone claiming injuries, workers’ compensation injuries, and medical malpractice injuries. Therefore, the people of interest are not the kind who would be considered dangerous.

A typical surveillance is done as follows. We receive an assignment from the client, who is usually an attorney or an insurance adjuster. The client provides us with the individual’s name and address, and lots of times, they want to tell us what the injury being scrutinized is. However, we tend to reject receiving this particular piece of information. If we know what the injury is, we may be biased or may be accused of being biased by the opposing counsel when we get on the stand to testify.

If the subject is claiming a knee injury, for instance, and we know this, we would look out for the person limping or favoring the other leg or moving about as if nothing is wrong. Even if we try to ignore the fact that the injury is known to us, we may subconsciously still examine the individual in a biased manner.

So to avoid any conflict, we choose the oblivious route.

The stakeout typically runs from early morning to early evening and is usually done in the daytime because of the types of people involved. Generally speaking, it is easier to keep an eye on people when they are less suspecting they are being filmed. We usually get to our hiding places early in the morning, around 6, 6:30 a.m. or so, while it is still dark out. We set up on the property down the street, where we can conspicuously watch the individual come in or leave.

As far as equipment goes, the surveillance teams all possess different types of cameras. They use standard handheld cameras, their cellphones, pinhole cameras, buttonhole cameras, cameras in their hats—it all depends on the situation which they decide to use. For instance, if an investigator is following someone in a department store, he cannot realistically use a handheld camera to track this person down. The security will more than likely stop him. So under a circumstance like this, something like a body camera would be used.

When it comes to observing people in their houses or on their properties, things get a little trickier.

Sport hunting concealed cameras, which are camouflaged, are usually used in these situations. If we are having difficulty capturing video footage of someone coming out of a house, we place this type of viewer at the base of a tree with some shrubs around it and get video footage that way, for example.

Audio recording is never allowed and is deemed illegal without permission from the person who is speaking. So if someone is in the privacy of their own space, we, by no means, want to have any sort of soundtrack. If the person gets in the car and drives somewhere, we follow them. There have been people who have claimed they are not working who have left the house at 7:00 a.m. with a toolbox and got in their pickup trucks to start their work day. They go to their worksites, and we then get video footage of them hammering sawing, carrying buckets, etc.

“The video doesn’t lie,” Bob says.

This simple statement describes the foundation of surveillance. What better way to obtain information than to do so completely objectively? By solely speaking to someone, you may never get the whole truth. If money and benefits are involved, some people will lie through their teeth and fabricate injuries in order to collect the “good stuff.” But by recording someone without that person knowing, investigators can see what is really going on, whether the person is being honest or dishonest.

As stated in my previous post, Deception, we never use deception in handling our cases. We also don’t like to encounter the individual or engage in conversation with this person.

Hypothetically, say the investigator is a physically attractive young female. We would never put her in the position to act as though her car is broken down and needs help. She would not go up to the subject and say, “Hey. Can you help me with my car for a second?”

The video is more than enough. It tells the truth, and we never want to have any influence on it. ♦

Communication Between Server and Client

Probably one of the most, if not the most, important aspects of service of process is communication.

It all starts with the basics. The client reaches out to us, requesting service on an individual or a business. Along with the document, the client sends us specific instructions, such as whether this service should be attempted on a regular or rush basis. In addition, the client may include pictures, descriptions, and special guidelines, such as a specific time window in which the paper should be attempted. Already, communication is being used, and the document has not even been processed yet.

We acknowledge receipt of the document, process the document, and assign it to a server to be attempted. Once the paper leaves the client’s hands, we are responsible for it and everything that happens regarding that particular service. This entails keeping in regular communication with the client without hesitation. Once the paper is attempted, whether it is served or it is not, the client needs to know.

We are usually in touch with paralegals, and sometimes attorneys, and they have deadlines as to when they need notifications. So to avoid them hovering over us and calling us every minute to ask what’s going on with their documents, we try our hardest to reach out to them first. In our office, once servers have updates, they give them to us via e-mail, over the phone, or in person. As soon as we receive these statuses, we enter them into our system and forward them to the client. Sometimes, we call the client to provide this information, depending on how urgent and time-sensitive the service is.

When we require further instructions, such as whether we have permission to attempt an alternate address or how we should generally move forward with serving a document if service has been unsuccessful, we have to reach out to the client. Sometimes, the client does not reply immediately. In these cases, it is our duty to be persistent and continue to try and make contact with the client until we receive a response. That way, we are not holding on to papers for weeks and months at a time.

Sometimes, the client simply has other cases to be worrying about, so that’s where his main focus lies. He will receive our status e-mails and may look right over them if other matters are taking precedence at the time. But if a document, such as a summons, is left inactive for too long, it will expire. So it’s our duty to keep on top of each paper to make sure the statuses we have in our system are up to date.

Interaction between us and the client is imperative from the initial stages up until the document is served and the affidavit of service is signed and mailed to the client. The key to any relationship is communication. At the end of the day, our focus is meeting the client’s needs. Without communication between the server and the client, documents cannot get properly served. And this simple act is the foundation of what we do, right? ♦

What if we can’t get a paper served?

We are not perfect.

Not every single paper we receive is going to get successfully served. Therefore, it is necessary to explore alternate routes when we run into problems.

The infographics below show the procedures we follow for serving residences and businesses when our original attempts are unsuccessful.

1

 

2

 

 

It’s not a pizza.

Who enjoys have documents served on them? My best guess is no one.

This being said, the role of a process server is one that needs to be scrutinized by clients before they assign jobs to be served. Clients must understand that servers are not delivery guys. Servers are not delivering documents that people want to receive. So when the recipients of these documents attempt to avoid service, we are usually not alarmed.

As Bob states, when attorneys draft these documents, they are doing so because they are after either your money (if it’s a summons) or your time (if it’s a subpoena). If someone knows legal documents are on the way, he/she may do whatever it takes to make sure this process is not completed so an appearance in court cannot happen. However, although this may seem effective for some time, eventually, the person will most likely lose the race and will get discovered.

In his op-ed piece, Five Reasons not to Avoid Service of Process!, Dave Krieger advises, “When you don’t understand WHO is coming after you, you won’t know how to establish an “End Game Strategy” to beat down the action being taken against you.”

Doesn’t this make sense? Wouldn’t you want to know who is after you if you don’t already? And if you do, wouldn’t you want this notification so you can figure out a way to come up with a solution?

Krieger goes on to say, “Judges don’t like it when the party being served deliberately says “NO” to process, because it’s their right to know what they’re being accused of doing (or not doing)…No matter what the outcome of service, time is working against you the longer you wait to accept service.”

In these cases when we are unable to serve an individual at his/her house or business address, we run skip traces to seek alternate addresses or execute wait time and surveillance to catch him/her coming or leaving from their current address.

The delivery of legal documents is not always simple; sometimes it requires extra steps and most of all, loads of patience. ♦

Deception

We are not stalkers.

Sometimes, people have the misconception that process servers stalk individuals to try and obtain service or go on wild goose chases to create an encounter. It may even be perceived that servers disguise themselves as alternate personas to try and fool the individual being sought.

Although servers do have to sometimes go extra lengths to obtain service, they do not use deception by any means. Locally speaking, the Broward County Sheriff does not allow us to practice this technique.

In the older days, deception was used quite often to get people to come out of their homes. For instance, there was a situation where a process server hired a paint crew to set up shop outside someone’s residence to do some painting. The guy whom service was being attempted on came out and asked the crew what they were doing, and that’s how the documents were able to be delivered to him.

“I’ve had a lot of interesting serves,” Bob says.

Sometimes, when attempting to serve documents, the events that take place can feel surreal, as if they’re being played out in a film onscreen. But the things that happen to process servers on a daily basis are products of real life encounters.

From witnessing individuals completely disrobed to having others blatantly lie to you about their identities when you already have a description of them and know what they look like to having people hide out in their homes for hours on end because they know you’re outside waiting on them to come out of the house, each service has endless enigmatic possibilities.

Bob recalls one service in particular, where he chased a gentleman in his Ferrari around Fort Lauderdale for about 30 minutes. Being the skilled investigator he is, he went back to the man’s house and discovered from the neighbor that the man liked to take his stray dog he found for walks by the Intracoastal. He would do this in the evenings when it was already dark out and no one would be around to see him. He did this without fear of being served.

But he should’ve thought twice.

At the time, Bob had a Dachshund and took the dog along with him on this quest to obtain service. He parked up the street in a vacant lot near where the Intracoastal was. Bob heard the man coming up the street with his dog, so he released his dog, and the two dogs started doing “dog things,” playing around and exploring each other.

So Bob called his dog, and the man called his dog to calm it down. Bob approached the man, apologizing that his dog had gotten loose. He told him he was sorry to bother him and said he was here from New Jersey, visiting his son who lived up the street. The guy introduced himself, telling Bob his name and shaking his hand. Immediately after, Bob pulled the documents out from his back, where he usually likes to hide them, and told the man he was served.

Needless to say, Bob enjoyed this serve.

“To me, that’s not deception,” he says. “That’s just being creative.”

Deception would be identifying yourself as a postman or a pizza delivery man or something of that nature. It’s hard to put a finger on what deception actually is because sometimes you do have to tell a small lie to get past a guard or past a neighbor or something of that nature.

Think about it. In general, all occupations come with their own sets of difficulties, just as life has a way of throwing hurdles at us from time to time. That being said, all services are never going to be cut and dry, especially when they are taking place at residences. Sometimes, servers must think of a tactic that could cause the servee to comply if he/she is avoiding.

We can’t say we are from the Broward Sheriff’s Office, nor can we identify ourselves as deputies or use language that infers we are. Most process servers use the line, “I am a special process server appointed by the Broward Sheriff’s Office.” But if you just walk up to someone and say, “Broward Sheriff’s Office,” that’s considered deception because you are not a deputy nor a police officer nor an employee of the sheriff’s department.

So, although process servers may have to bend the truth just slightly or use a creative approach to obtain service from time to time, deception is never acceptable. ♦