RE: [legalxml-courtfiling] Contribution from OXCI project

I was reviewing this thread for one purpose and notice this discussion about
service of process. I've made note on other threads about the confusion of
terms and felt impelled to make a similar clarification on this thread,
particularly for our technical brethren with limited legal experience.

Sending a copy of a pleading to another lawyer or a pro se is a Certificate
of Service. This should not be confused with Service of Process of a
Complaint and Summons which may require filing a "Return of Service."

 Service of Process is best addressed in a separate set of steps in the
workflow. "Service of Process" occurs for filing an initial pleading,
setting up a case for the first time, getting a case number and delivering
or "serving" the complaint on the party (by mail, if allowed, or personal
delivery by a sheriff or other process server.)

Once the case has started there is a much simpler pattern for filing
responsive pleadings, which typically are sent to counsel and pro se
parties. In Maryland, where I practiced law, the attorney signs a separate
statement which affirms he/she has sent a copy of the pleading to the
parties or their counsel by pre-paid postage on such a date.  The lawyer's
signature allows discipline by the court for any misrepresentation. This
separate signed statement is called the CERTIFICATE OF SERVICE.

This certificate requires no "return of service", which is a term I only
encounter with the hand delivery of an original complaint. The eFile system
can indeed verify sending and receipt of the responsive pleading (or a least
that it was received and opened at a given mail address.

 To make things interesting, you can add a new party during the course of a
law suit. This requires service of process of the complaint and summons to
that new party, and possibly, yes, a certificate of service to the other
parties and their lawyers.  The terms are not interchangeable, however. They
have very powerful consequence for lawyers and parties alike.

For you history buffs, the term "Process" appears in the 5th Amendment to
the US Constitution which require "Due Process of Law"  which in turn is
based on the concept of fair notice of civil claim or criminal charge, a
right to be heard, a right to counsel, etc.

My comments are not theoretical. I am drawing on my experience as a trial
lawyer and in functional design of several eFiling systems for JusticeLink
(where I was Chief Legal Officer and as an advisor to a Private Process
Serving company) I also did an in-depth cost-benefit analysis and baseline
workflow study of eFiling for the Executive Office of the US Attorneys
(where our good friend and colleague, Diane Lewis works.)

Hope this clarifies and subtle but dramatic difference in the use of a
similar term in two different contexts.
James I. Keane
JKeane.Law.Pro
20 Esworthy Terrace
North Potomac MD 20878
301-948-4062 F: 301-947-1176 (N.B.: NEW FAX NUMBER)
www.jkeane.com <http://www.jkeane.com>