Robin's Ruminations

Let’s take a moment to recall how this story started. It is meant to demonstrate three interesting aspects of being a process server.

First – Clients often have information they don’t know is valuable to the job at hand.

Second – Clients have a bad habit of forewarning the person they want served.

Third – Process servers are frequently involved in situations which turn out to be anticlimactic in nature.

To recap where we are:

The target, Mr. Doe, is an accomplished avoider. He knows the papers are coming. He lives on an island but visits the mainland regularly.

Ms. Jones, at our client’s office, has managed (with some guidance) to provide some good information. We know Mr. Doe’s car, pickup, boat trailer, and boat. We know where he comes ashore. We know about his sons’ baseball games and we have Mr. Doe’s photograph.

Now back to the story.

It was Friday afternoon. Mr. Doe’s habit was to come ashore, trailer his boat, and go on about the visitation with his boys.

I prepared detailed instructions for the server assigned to this case but I just couldn’t keep my hands off of it. As the father of four children and the grandfather of four grandchildren, I get perturbed by “men” who fail to take care of their obligations. And some “men” will go to considerable lengths to avoid those obligations.

Having made a second set of service documents I went down to Fairhaven Harbor and found Mr. Doe’s truck again. It hadn’t moved since last I saw it. There was a lot of parking available so I could position myself well so as to watch both the pickup and the boat launch and yet be within easy striking distance if he showed up.

And there I sat for over two hours. Thank goodness the weather was nice. But I couldn’t stay there all evening. My wife (Lynn) and I make a point of going out with friends for dinner every Friday evening.

I left the harbor and picked up Lynn. Then, before going to dinner, I cruised back through the harbor parking area. The pickup was still there and the boat trailer was still empty.

We went to dinner and had a pleasant time with a very dear friend. Then, naturally, I drove back down to the harbor before going home. But Mr. Doe had come and gone. The pickup and trailer were no longer there. Cursing slightly under my breath I knew we still had another shot at him his boy’s baseball game the next day, Saturday.

The Mighty Casey was still at bat but now he had two strikes against him.

I had assigned this job to one of my best servers. Mike Aparicio. He’s been with me for a while, proven himself very dependable, and recently passed his certification tests to become a Washington Certified Process Server.

Saturday morning arrived and I was waiting for Mike’s call. What would he report? Did he make the serve or not? Would there be a confrontation? Just how much trouble would Mr. Doe create for Mike?

Finally, in the late morning, Mike called. “Hi Robin. Got him served. He said thank you. No problems.”

My initial reaction was to pump my fist and shout “YES!”

Then, there it was again. A strange feeling it was and always is. All the buildup, all the work and thought and time and …….. Another anticlimax.

Casey had swung at that last pitch and knocked the ball out of the park. But the crowd simply yawned and went home.

And, quite frankly, that is the way I like it.

Comments (0)
Robin Mullins May 8th, 2012 02:23:19 PM

After conducting a thorough review of the information we had on Mr. Doe I sent what turned out to be a rather lengthy e-mail to Ms. Jones at our client’s office. I wasn’t exactly optimistic at the time.

(Let me point out here that we were attempting to serve Mr. Doe with, among other documents, a court order which would result in his arrest if he failed to appear in court as ordered. Also, remember that I’ve changed a number of the details to protect the innocent and the not so innocent.)

The first thing I pointed out was that Mr. Doe was a known avoider and yet he (through his attorney) had been informed the papers were looking for him. I went on to explain, politely, that this always makes a process server’s job more difficult. Ms. Jones later wrote back assuring me this would not happen again.

Then I explained exactly what would be needed in order to have any reasonable chance of serving this fellow. Here are the main parts of my email to Ms. Jones.

First - We need to be able to identify him without the need for him to confirm his identity. This means we need a good photo or a third party to point him out. Without one of those all he has to do is deny being himself and walk away. Your office provided us with a brief description for him but there a great many people who fit that description. We are open to serious liability if we serve the wrong person and Mr. Doe is later arrested based on our proof of service.

Second - We need good intelligence about his activities. I note in some of the communications with my office it has been pointed out that he is changing his routines. This is almost certainly because he knows someone is looking for him. A few questions for you about him:

1. Does he attend church?
2. Is he religious?
3. How does he support himself?
4. What skills does he have?
5. What hobbies does he have?
6. What are his visitation rights with his children?
7. What would happen if the visitation rights were refused?
8. Does he belong to any organizations?
9. What does he do for entertainment?
10. What is his employment history?
11. What are his politics?

Third - Resources, we only have so much time and effort we can put into an assignment.

We can try to accomplish service but I recommend you allow him time to settle into a new routine, i.e. get comfortable and let down his guard. If possible even let it be known the effort has been abandoned and he has nothing to worry about. Then, given actionable intelligence and a photograph we might stand a chance to get a solid service on him.

This email turned out to be rather productive. Ms. Jones replied and, though she didn’t have many answers to my questions, provided this tidbit of information.

He also owns a boat that enables him to travel between his mother’s home in Bellingham and his girlfriend’s home on Eliza Island frequently.

I wrote back immediately asking a number of questions about the boat.  Such as: What did it look like? Where does he dock it on the mainland?

Ms. Jones checked with Ms. Smith and was able to provide a number of details about the boat.

"It is a green and gold boat with blue accents. He used to have a slip in Blaine Harbor but I think he primarily pulls the boat in and out now. He launches multiple times a week at the launch near Boulevard Park. I can try to figure out a more specific location for you."

Needless to say I knew exactly the place she was describing. Ms. Jones went on to supply me with information about the boat trailer likely to be used by Mr. Doe. She even managed to come up with a photograph of him.

I went immediately to Fairhaven Harbor and found his pickup and boat trailer. It was parked near the boat launch.

Further email exchanges with Ms. Jones resulted in another fantastic piece of information. Mr. Doe always took his sons to their baseball games on the weekends. I immediately asked for the name of their team, a description of their uniforms, and the location of the games. Guess what, all of this information was known and quickly provided.

Remember, when this story started I felt like we were in our own 9^th inning with two outs against us. Now it was looking like things had changed. Casey was coming up to bat for Mudville.

Would he strike out again?

Comments (0)
Robin Mullins May 8th, 2012 12:57:33 PM

Dealing with people as a professional process server you begin to see certain patterns of behavior as the years go by. In this little story I’m going to describe three such patterns. Needless to say, names and details have been changed to protect everyone involved.

One that I’ve found interesting has to do with the fact that clients don’t always realize the value of the information they have in their file. This usually comes up once or twice a year as we’re working an especially difficult assignment.

The second is that some clients can’t resist giving the person being served “just one more chance” to be served voluntarily. As with the first this one also occurs a few times a year.

The third pattern is that process serving is filled with situations which are anticlimactic in nature. This is demonstrated on an almost daily basis.

Like a perfect storm, an example involving all three patterns presented itself to me and my servers over the past few weeks.

Let me set the scene.

The Target
Mr. Doe, middle age, white male, about 6 feet, and around 200 lbs. Based on the descriptive information initially provided you could call him Mr. Everyman.

The Client’s Legal Support Professional
Ms. Jones at a local law office, highly competent and good to work with. She responds quickly to all communications and goes out of her way to help.

The Client’s Client
Ms. Smith, a nice person and well-meaning but stuck in a bad situation with Mr. Doe.

The Background
Mr. Doe owes a lot of back child support to Ms. Smith. He avoids service on a regular basis. He’s managed to avoid process servers working for the state and has avoided Sheriff’s deputies as well. He lives on a small island in the San Juans which is only reachable by small boat or airplane. He is self employed as a contractor. He maintains a trailer in a local RV park.

Ms. Jones had some pretty good information regarding Mr. Doe including a couple of vehicles he was known to drive. One being a teal Ford pickup, A12345B, and the other a white Honda, ABC123.

Early on we are informed that the Client (Ms. Jones’s boss) sent a letter to Mr. Doe’s attorney informing him that if Mr. Doe wouldn’t accept service then he would be “served.” I’ll give you one guess as to whether or not this information was relayed along to Mr. Doe. Of course it was. So we (the process servers) already had one out against us in the bottom of the 9^th and, for us at least, the game had only just started.

The first thing my servers did was to start checking the RV. Sure enough the white Honda was there. The tabs were expired. No one answered our knocks on the door of the trailer. It was always dark and quiet.

We reported to Ms. Jones and were informed that Mr. Doe still had visitation rights with his two children. His habit was to pick them up himself but lately (since he was informed a process server is looking for him) he had started sending a family member to pick them up. This told us his family was helping him avoid his obligations and helped confirm he knew someone was looking for him.

Ms. Jones supplied us with an alternate address for him here in Bellingham. It turned out to be his mother’s place. She told us he often had the children there. My servers made a couple of attempts at this location but, needless to say, Mr. Doe was never there and his mother claimed she didn’t know where he might be found.

It was at about this point the assignment was brought to my attention. I reviewed the situation and my gut was telling me this service was not likely to happen. We already had a fair amount of work into it and the client is one with whom we are contracted at a specific rate. It was now feeling like we were in the bottom of the 9^th with two outs against us.

My initial thought was to make some diligence attempts at the two addresses we had and then turn it back to the client. But the more I looked at the assignment the more I felt this fellow needed to be served.

Stay tuned for Act 2.

Comments (0)
Robin Mullins May 8th, 2012 11:13:41 AM

Over the past few years there has been a steady increase in the level of discord among the members of NAPPS. For anyone who has been following Jeff Karotkin's Service of Process Looking Forward this is an obvious statement. The same can be said for anyone who has watched the NAPPS magazine The Docket Sheet. And let's not forget the website NAPPSWatcher.

When I was in San Antonio for last year's NAPPS Annual Conference I came across a little book entitled Cowboy Etiquette by a gentleman named Texas Bix Bender. There are any number of little sayings in this book which are applicable to the situation going into this year's Annual Conference in Boston but I happen to think this one is most appropriate. I encourage all of my fellow NAPPS members to take it to heart.

Comments (0)
Robin Mullins April 24th, 2012 01:46:58 PM

It occurred to me the other day to ask my insurance agent if having trained and certified process servers would have any impact on my errors & omissions insurance premium.

What a surprise! He actually said "Yes." In fact, he said (with certain provisos) that it had the potential of getting me up to a 25% discount off my yearly premium!

My next question went to my bookkeeper. How much was our E&O premium for this year? In excess of $3,600. Now for a little math.

$3,600.00

x .25

$900.00

I have the potential (remember, there are provisos) of saving up to $900 a year if all my servers are certified. All at once training and certification begin to take on a new meaning.

Comments (0)
Robin Mullins April 15th, 2012 12:38:48 PM

Some years ago I served seven years on the Board of Directors of my local school board. It was, to say the least, an educational experience. As I look back on those years I’ve come to realize just how valuable they were for me. One of the things I learned was this:

Teachers, para-educational staff, bus drivers, librarians, literally everyone employed by the school district, took part in some form of continuing education. The task was to create a next generation of citizens which is intelligent, knowledgeable, and sharp. And to do that required everyone to be on top of their game every day.

This meant that everyone, even members of the Board of Directors, was involved in some type of learning process. We called ourselves Life Long Learners and I still refer to myself that way. A day isn’t complete if I haven’t learned something new during the course of its 24 hours.

Life Long Learning means the continuous building of skills and knowledge throughout your life.

It is interesting to discover that the more you know then the more you realize how little you know. Standing now at the level of 34 years experience I can finally state with some measure of certainty that I really don’t know much about serving legal process. And I certainly knew less back when I was 5 or 10 years into my career, though at the time I thought I knew it all.

There are subtleties in the law which, in their application to service issues, still surprise me. For the most part these surprises come out of case law. You see, the courts are not static. Despite the importance of legal precedence there is a constant motion to the way they look at things. This can be best described as a pendulum swinging back and forth, back and forth.

An important aspect of service, which many people don’t appreciate, is the extent to which service is “fact dependent.” Given one set of facts and the Supreme Court will rule a service valid. Change those facts, even just a little, and it is likely the Court will rule the service invalid.

There is a constant motion in the system. A state Supreme Court will issue a ruling on one set of facts. But that exact set of facts is rarely repeated.

Attorneys will then attempt to use the decision to their best advantage. Depending on where they stand determines how they make their argument. One side or the other will convince the trial judge to accept their interpretation of the Supreme Court’s earlier rulings and the judge will either validate the service or invalidate it.

Then, in a small number of cases, the losing side will take their case to the Court of Appeals. Once again the two sides will make their arguments. The tribunal of justices will examine the case and attempt to apply the logic from previously decided cases to this new set of facts. Once again, one side wins and the other loses.

Finally, in an even smaller number of cases, some will be appealed to the state Supreme Court. Here the Court will ponder the case and decide whether or not the lower courts applied the law and previous decisions appropriately to this new set of facts.

Much of the time the Supreme Court will uphold the rulings of the lower courts. But not always. There are many instances where the trial court and the Court of Appeals have decided in one direction and then the Supreme Court reverses them. This happens even if the lower courts have done their level best to look at how the Supreme Court has ruled in the past and to apply those rulings to the facts in front of them.

Case law is only one way in which the rules of service are adjusted over time. There are at least two other sources of movement and those are court rules and legislation.

So how is a process server to stay on top of things? Well that brings us back around to continuing education and being a Life Long Learner. There are courses, books, and seminars available nationwide. The best are state specific, meaning they contain in depth information which applies to the laws, rules, and case decisions of a single state.

True professionals have some concept of how much they don't know and constantly seek out new resources and information about their chosen interests. They try to learn something new every day.

Comments (0)
Robin Mullins April 10th, 2012 09:20:55 AM

About a week ago we received an unusual set of instructions from a local attorney. In order to protect the guilty I'll simply refer to her as Ms Smith.

She sent us an assignment for service on a gentleman, we'll call him Mr. Jones, who is an officer with a local police department. Accompanying the documents was a two page cover letter providing us with very detailed instructions on how to serve the documents and where to find Mr. Jones. Not only did she provide a couple of addresses but also turn by turn directions on how to get to them. One place was his home and the other was the location of police department where he works. All very helpful.

But then we noticed something odd about the service instructions. On the first page of the letter it something to the effect of: "... you may find it easier to attempt service on Mr. Jones directly at the police department address, listed below, or through the XXX XXX XXX offices, thereby performing a 'substituted service' on personnel at one of their offices."

On page 2 of the letter Ms Smith gave us a definition for 'substituted service' which went like this: "SUBSTITUTE SERVICE: Pursuant to RCW 4.28.080, substitute service is allowed under Washington Law as long as the summons and attendant documents are left 'at the location of Respondent's usual abode with a person of suitable age and discretion then resident therein.'"

One of my staff brought this to me and we both stood there scratching our heads over it. On page 2 Ms Smith gave us a pretty fair definition of substitute service found in RCW 4.28.080(15). But on page 1 she told us we could leave the papers with someone at Mr. Jones' office and thereby achieve substitute service. Based on the information available, Ms Smith had to know that Mr. Jones didn't live at the police department where he worked!

No only were Ms Smith's instructions self contridicting but Washington law does not provide for any type of substitute service at a person's place of employment.

Fortunately, my staff is well trained. They spotted the issue and brought it up right away. We sent a server out to the police department and she was able to obtain personal service on Mr. Jones on the first attempt. If that hadn't happened, and if we had difficulty obtaining service at Mr Jones' home, then we would have communicated with Ms Smith and asked for clarification.

If we had simply taken Ms Smith's instructions at face value then it would probably have turned into a major mess for her client, her, and us.

The point to be made here is this. We need to be the professionals when it comes to this tiny sliver of law known as service of process. The best way to be a pro at serving process is to know the rules of service inside and out, forwards and backwards. A family doctor may have an MD but he or she won't know the first thing about brain surgery.

Process servers are specialists.

Comments (0)
Robin Mullins April 9th, 2012 02:57:48 PM

I recently received the following e-mail from John Perez in New Jersey. For those of you who may not know John, I can assure you he is one of the most knowledgeable process servers in the country is a winner of the NAPPS Donald C. "Mac" MacDonald Award. He wrote the e-mail to me and our mutual friend Tony Klein (another Donald C. "Mac" MacDonald Award winner and every bit as knowledgeable as John).

"Tony/Robin:

At the Georgia seminar last weekend, GAPPS took the position that merely opening a mailbox and looking at the name of the addressee of mail placed therein, is not a criminal offense, either state or federal. My first reaction, was that they were wrong. I now think they are right. I find nothing that says this is a criminal. I challenge you to prove otherwise. Good luck.

John Perez"

Needless to say, with John throwing down a gauntlet like that, I couldn't help but pick it up. Here is my response.

"John and Tony,

I found 18 USC 1705 which states: Whoever willfully or maliciously injures, tears down or destroys any letter box or other receptacle intended or used for the receipt or delivery of mail on any mail route, or breaks open the same or willfully or maliciously injures, defaces or destroys any mail deposited therein, shall be fined under this title or imprisoned not more than three years, or both.

My concern is the phrase "breaks open the same". This could be interpreted as meaning any unauthorized opening of the box.

I also teach that a mailbox should not be opened and the mail within should not be touched. It is OK to look at any mail which might be visible in the box but don't touch.

One of my servers did that a while back and I received a rather scary phone call from the Postal Inspector's office in Seattle. Even if a person might not be convicted of a federal crime it would be an unholy mess to have to defend.

With the prevalence of video cameras in and around homes and other buildings I don't think it is worth the risk for what is likely to be a minimal benefit.

Until shown otherwise, in my opinion it is best practice to leave mail alone.

Robin K Mullins"

I'll post more on this as the discussion develops.

Comments (6)
Robin Mullins February 22nd, 2012 09:37:17 AM

If you want nice fresh oats you have to pay a fair price. If you can be satisfied with oats that have already been thru the horse, well, those come a little cheaper.

What kind of oats are you selling?

Comments (0)
Robin Mullins November 7th, 2011 10:55:15 AM

Here is one of my favorite quotations. Teddy Roosevelt said it during a speech he gave in Paris in 1910. It has become dear to me and something by which I am attempting to model my life. It comes to mind when I think about criticizing another, when I hear someone else criticize another, and when someone criticizes me. This is the bar by which I measure each and every critical statement made by anyone against anyone.

"It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena; whose face is marred by the dust and sweat and blood; who strives valiantly; who errs and comes short again and again; who knows the great enthusiasms, the great devotions and spends himself in a worthy course; who at the best, knows in the end the triumph of high achievement, and who, at worst, if he fails, at least fails while daring greatly; so that his place shall never be with those old and timid souls who know neither victory or defeat."

Comments (1)
Robin Mullins October 21st, 2011 07:58:07 AM

vi·a·ble - "vahy-uh-buhl" - adjective
1. capable of living.
2. Physiology; physically fitted to live.
3. Botany; able to live and grow.
4. vivid; real; stimulating, as to the intellect, imagination, or senses.
5. practicable; workable: a viable alternative.

Years ago a process server was arrested for trespass for entering the back yard of the person on whom he was attempting to serve legal documents. He was later convicted of this charge by the same court out of which those documents were issued.

This won't happen any more. WSPSA helped get the law changed.

Years ago a valid service could not be made on a Sunday or other court holiday.

Now service can be made 365 days a year. WSPSA helped get the law changed.

Years ago a defendant in an auto tort case could avoid their responsibility to the person they injured if they could just avoid being served.

Now defendants like that can be held to account. WSPSA helped get the law changed.

Years ago - Years ago - Years ago.....

But maybe not next year or the year after that or the year after that......

Over the past 5 to 10 years I have observed a distinct decline in interest in the activities of WSPSA. Some of the most active members have died, some have retired, some simply don't seem to care anymore. And only a few have stepped forward to fill those all too important shoes.

Membership in WSPSA has waned. Attendance at meetings is nearly non-existent. The treasury is nearly empty.

Few seem to care. Few are looking any farther forward than their next service. Few are willing to invest either their time or their money.

The WSPSA Annual Conference is only a couple of weeks away. As I write this less than a dozen people are registered and, even if those who say they will register actually do so, there will be less than 20 in attendance.

"I'll be out of town that weekend" - "I can't afford the time away from my business" - "I'm too busy" - "I don't like what WSPSA is doing so I'm going to pickup all my marbles and go home" - "I DON'T CARE ANYMORE"

How good will your business be when a summons can be served by snail mail or e-mail? If you think this can't happen then maybe you don't know about or remember what happened when the law was changed to allow service of garnishments by mail. It used to be that garnishments had to be served in the manner of a summons. Now we see only a relative few of them.

Is WSPSA still a living, breathing, active organization? Is it still viable?

Comments (8)
Robin Mullins August 24th, 2011 10:01:37 AM

Here is a link to a NAPPS news release about a change in the law in Illinois.

Click here.

My servers have been assaulted more in the past year or so than I was in over 20 years on the road. People are "killing the messenger" and we simply can't let them continue to get away with it here in Washington.

Oh yes, a point of interest, process servers in Illinois are licensed and regulated. We need the same thing in Washington.

Comments (3)
Robin Mullins August 15th, 2011 08:51:10 AM

The following was taken from an article sent to me by the WSPSA Executive Director, Eric Vennes. It comes from a blog post on The Builders Counsel by Douglas Reiser.

Service for the 21st Century – Nothing bothers me more than a law office that operates in 19th century service. Prevent that from happening by requiring the party to receive service of process through an easily identifiable means of communication like e-mail. Electronic communication is a great way to save yourself some cost and headache.

This sort of comment immediately brings to mind a couple of thoughts and questions.

Was the author writing about original process or subsequent process (all the paperwork which flows back and forth after the case is started)? Many attorneys don't make a distinction between the two and I suspect that was the case here.

From our point of view (that of a process server) we typically think of this in terms of original process. And it is from this point of view that I make the following comments.

Going back to my May 9th post on this topic, I don't think e-service (of original process) is quite the threat we're making it out to be. I first brought up the possibility of writing e-service into contracts at least 5 years ago. And yet, if e-service is such a threat, if it is going to be written into contracts, then why wasn't service via snail mail written into contracts decades ago?

Now I'll agree wholeheartedly that e-service of subsequent process is having a huge impact on legal messengers. It is relatively easy to see the demise of courier routes in the not too distant future. Yes, it has been possible to send subsequent process via snail mail for a very long time, but the problem was timing and e-service will solve that issue.

But service of original process has a considerable amount of case law behind it and is held to a higher standard than that applied to subsequent process. And although e-service has been allowed a few times I simply don't see it replacing traditional service in the original process arena. E-service is quite similar to service by publication and its CR-4 variant of service by snail mail. Despite all the hoopla e-service is not something new under the sun.

Comments (0)
Robin Mullins August 12th, 2011 07:38:09 AM

One of my servers was assaulted this afternoon (July 22nd). We'll call him John. He was out serving in a somewhat remote area near Blaine. The papers included an Order for Supplemental Examination and were being served on the registered agent of something named Patriot Sales, Inc.

The assailant (we'll call him Tom) came up behind John as he was talking to the Tom's wife at the door. Tom asked John why he was there and John attempted to explain. All at once Tom (the assailant) punched John in the face. Absolutely no provocation whatsoever. John turned and attempted to seek refuge in his car but before he could enter the car Tom came up behind him and punched him in the back of the head and neck. John (my server) was forced away from his car. After some negotiation John was allowed to get in the car. Before he could leave Tom came up an hit the car's windshield so hard it cracked. John managed to leave and immediately called 911.

Based on his appearance (shaved head), apparent intelligence (he admitted the assault to a responding deputy), the name of his company (Patriot Sales), and pocket contents (pocket version of the Constitution) (to say nothing of his penchant for attacking people for no reason) it appears Tom (the assailant) was some flavor of skinhead.

But the reason for this post is not to detail an event which is becoming all too common in our industry. The above gives you the background needed for you to understand something one of the deputies said as he was taking my server's report. We asked what charges would be leveled against Tom. The deputy said Assault 4th and Malicious Mischief 3rd. Both misdemeanors. He went on to say he checked the statutes to see if process servers were one of the trades and professions which puts any assault immediately into the felony level. He was disappointed to find process servers weren't mentioned. He said he couldn't understand why we weren't part of that list. He said it even includes bus drivers - but not us.

RCW 9A.36.031 -  This is probably the statute to which the deputy was referring. Here is the list of professions:

1.	Law enforcement	10.	School bus security officer
2.	Transit operator or driver	11.	Firefighter
3.	Transit supervisor	12.	Any other employee of a fire department
4.	Transit mechanic	13.	Employees of a county fire marshal's office
5.	Transit security officer	14.	Employees of county fire prevention bureau
6.	School bus driver	15.	Employees of a fire protection district
7.	School bus supervisor	16.	Nurse
8.	School bus mechanic	17.	Physician
9.	School bus security officer	18.	Other health care providers

But not process servers.

In my view, part of the problem is that the legislature does not know who we are. It isn't as simple as saying "We're process servers" or "We protect the rights of citizens by ensuring proper notice is given."

We need to get on this list. No one filling such a vital role in our legal system should be left out in the cold with only limited protection by the very system in which they participate.

In my view, our best chance to get some added protection is through a state licensing system. Then the legislature will know who we are, what we do, and what we have to face on a daily basis.

Comments (4)
Robin Mullins July 23rd, 2011 07:19:06 PM

I find certain similarities between this article involving bail bondsman and what we know is going on in the process serving industry. Hmmm, let's see:

1. Proofs signed by office staff.
2. Blank proofs signed in advance before the server ever makes an attempt.
3. Proofs signed by software.
4. Proofs signed using an ink stamp.
5. Etc.

At least we're not alone.

BELLINGHAM - The owner of Lucky Bail Bonds and an employee of the company have been hit with fines for violating state licensing requirements.

Eric Arps, president of Lucky, and employee Colleen Schmertz have agreed to pay the fines and waive their rights to a hearing on the matter.

The fines were imposed by the Washington Insurance Commissioner. In orders filed July 12, 2011, the commissioner's office asserts that Schmertz completed and signed 22 bail bonds between Sept. 10 and Oct. 13, 2010, before her license to write the surety insurance bonds had been obtained.

In so doing, she signed a document that stated "I certify under penalty of perjury that I am a licensed bail bond agent for Lucky Bail Bonds, and that I am executing this bond."

The state agency also asserts that Schmertz signed the documents at Arps' behest.

Arps is also accused of signing off on power-of-attorney forms for clients that had actually been filled out by Schmertz, in violation of state law.

For Arps, the state has imposed an $11,000 fine, with half that amount suspended on condition he commits no similar violations for the next two years. For Schmertz, the fine is $1,000, with $500 suspended.

To view the entire article click here.

Comments (3)
Robin Mullins July 20th, 2011 06:55:46 AM

It appears process servers in Washington are not immune to the greed, vice, and malice as has been evidenced in New York, Florida, California, etc. Is there more to come?

I find the defense attorney's "explanation" at the bottom of the article particularly galling and pathetic.

Click here to visit the actual article.

A disgraced Department of Social and Health Services worker caught selling confidential information about thousands Washingtonians has been sentenced to just less than two years in prison.

Having pleaded guilty to related offenses in March, Thevy Plom was sentenced Monday to a prison term for what prosecutors called a “a breach of public trust and corrupt actions.”

Federal prosecutors contend Plom stole and sold earnings information and addresses from a state computer off and on for a decade.

Writing the court, Plom, 44, apologized for the crimes that saw him make $108,000 from unscrupulous process servers and investigators.

“I am so sorry for what I have done, and if I could tell each of these people how sorry I am, I would,” Plom told the court. “I am ready to accept whatever punishment you see fit, and slowly return the money I
received.”

Plom, a financial services specialist for the department’s Tacoma office, was tasked with reviewing applicants’ eligibility for state benefits. To do so, Plom was allowed to review applicants’ employment and earnings records on a state computer system.

In 1998, Plom was approached by process servers interested in using state information in civil litigation and debt collection. The information Plom provided could be used to serve legal papers on respondents, garnish wages and enforce judgments.

Having agreed to provide information to those process servers, Plom went on to obtain other customers for the state information, Assistant U.S. Attorney Katheryn Frierson told the court.

Plom, 44, received lists of Social Security numbers from his clients, then pulled the associated filed while at work. He then passed the information on to his clients, who paid him through a company opened in his then wife’s name.

Having accessed the accounts of more than 1,000 Washingtonians, Plom was paid at least $108,000, Frierson told the court, asking that Plom be sentenced to two years in prison. U.S. District Court Judge Ronald Leighton ultimately sentenced Plom to 21 months in custody; Plom has agreed to forfeit the proceeds of his scam.

“Mr. Plom continued his offense undetected for nine years, beginning in approximately 1998, then after a short hiatus, continuing from 2001 through 2008,” the prosecutor told the court. “Over those years, he exploited his position to access and distribute information about thousands of individuals … distributing the private information to third parties who could then use that information in any matter they saw fit.

“Not only then was Mr. Plom’s conduct exceedingly corrupt, it was reckless with regard to additional consequences for the individuals whose privacy he breached.”

Writing the court, Plom’s attorney described him as a Cambodian refugee scarred by the Khmer Rouge and struggling to “hold it together.”

Plom, defense attorney Lynn Hartfield said, began gambling as his life came apart following a divorce. He ultimately found himself tens of thousands of dollars in the hole, and looked to sell information to cover his debt.

Asking that Plom be sentenced to 1 ½ years in prison, Hartfield described her client as the victim of a “charismatic, persuasive individual” who prompted him to sell information. She also asserted that those whose information Plom stole were not financially harmed.

“In a sense, what the victims suffered was merely the inability to evade creditors or process servers,” Hartfiled told the court. “There is a difference in the level of harm suffered by the victims, relative to other theft-of-personal-information cases.”

Plom was not jailed immediately after Monday’s sentencing hearing and is expected to report to the Bureau of Prisons when space is available for him.

Comments (8)
Robin Mullins July 19th, 2011 11:27:30 AM

Last evening I was in conversation with a group of people who make up the campaign committee for a woman running for a local county office. We were trying to figure out how to spend our precious resources - time and money. The topic of social networking came up when the candidate asked if she should open a Twitter account.

That led us into a discussion of her FaceBook page, then Linkedin, then another and another and another. This got me to thinking about how many such networks there might be in the online world. Well, for at least a partial list, follow this link to Wikipedia.

As the discussion went on it was decided there was little point in her opening a Twitter account. At least at the local level, these systems are becoming so huge that it is next to impossible to differentiate one person or company from another.

Now I'll admit right up front that I'm in the "older generation" (58) and I text using complete words and complete sentences with punctuation (OMG). So perhaps I am just too old to understand the value of FaceBook, MySpace, Twitter, and FetLife.

Yes, I know what Obama did with this model in 2008 and I'm aware of the Arab spring which was, at least to some measure, based on the power of social networks. But I'm beginning to think I've seen this all before.

Hmm, let's go back a few years, like about 80 or 90 of them. At that time the big deal was radio. Many companies, even relatively small ones, had their own radio stations. There were thousands of them spread all across the country and world. Now there are still plenty of radio stations around but would you use any of them to advertise your company? Would you start your own radio station for that purpose? Probably not.

Now it is obvious the www is not radio. The differences are fundamental and of considerable size. And yet, at the core, I see similarities.

I operate a small business. My resources are limited. They are the same as mentioned above for the candidate - time and money. How am I going to utilize them? Will I hire someone to create a "GREAT FACEBOOK PAGE" for me (money)? Will I learn the concepts and procedures myself (time)? Will those concepts and procedures still be applicable in a couple of years?

I come down on this by saying, "Don't bet the grocery money on it." Keep yourself informed. Have at least a general idea of what is happening in the real world and www world. And, since one of the advantages of age is experience, I suggest you move slowly and with caution.

There are a great many ideas floating around. Be cautious, ask for specifics.

Comments (0)
Robin Mullins July 7th, 2011 04:43:28 PM

We receive a lot of work from other process serving companies. As with our local clients, we do our best to follow their instructions as closely as possible.

Recently we've begun receiving real property posting assignments from another company which has this as part of the instructions: "Please include the language 'a copy of the notice is attached hereto' in the proof of service. Client will attach the notice." That second sentence caught the attention of my staff immediately and they brought it to me along with their concerns. I explained to my staff that under no circumstances will we follow such an instruction.

Why shouldn't we follow the client's instructions?

Comments (0)
Robin Mullins July 7th, 2011 07:44:18 AM

Part of a citizen's duty in a democracy is to question authority. Doing so helps keep the democratic system strong and, hopefully, somewhat transparent. That said, there are a number of questions floating around to which NAPPS leadership might feel inclined to consider answering. My next post or two will ask some of these questions with the optimistic view that the "powers that be" in NAPPS will consider responding to them. But, before I list a few, I'll define what I mean by "NAPPS leadership."

I don't see the NAPPS leadership as consisting of only the President and Board of Directors. It certainly includes them but it also includes anyone willing to step into the arena (à la Theodore Roosevelt) to voice their thoughts, questions, and concerns in a respectful manner to the rest of the membership. Obviously this is an expansive definition which includes many members. It goes far beyond our elected and appointed leadership.

Now, how about some questions.
1.        Does NAPPS have any short term goals? If so, what are they? (Short term = completion expected within 1 year)
2.        Does NAPPS have any long term goals? If so, what are they? (Long term = completion expected to take more than 1 year)
3.        If there are goals, either short term or long term, how is success defined for each of them?
4.        How is success defined for NAPPS?
5.        How is NAPPS measuring its progress towards its goals and, in the more general, towards success?
6.        Is anyone in NAPPS held accountable when goals are not reached or success not achieved? And, likewise, is there anyone in NAPPS rewarded when goals are reached or success is achieved?
7.        Is there something inherent about NAPPS which is either inhibiting, or helping in, its success?

Ever since the temper tantrums evidenced at the annual conference in San Antonio a month or so ago, these questions, and others like them, have been floating around. Might be nice if someone started some giving answers. So I'll start by suggesting one now.

The Baldrige Award
Has anyone in NAPPS ever investigated the Baldrige Award? Click here to visit their site. Some years ago I was a school board member of a local public school district. We happened to hire a new superintendent who encouraged us to examine and pursue this award. The story is long but just let me say that not every one in the district (as in certain teachers, principals, and the like) was in favor of what Baldrige asked them to do. They seemed to have a problem with it because it involved a high degree of accountability and many people are uncomfortable the concept of accountability (imagine that!).

If NAPPS really wants to go about setting goals, defining itself, and understanding success then Baldrige would be an excellent tool to use. But it involves hard work and results are not easy to achieve. It means taking a HARD look at how things have been done in the past, how they're being done now, and asking ourselves how we want them to be done in the future.

There is a win-win solution here. Our leadership need only recognize it.

Comments (0)
Robin Mullins July 1st, 2011 04:07:56 PM

I wonder how many professional process servers make a practice of offering pro bono services to their local legal community. There are several ways to go about it and I've found involvement in such activities to have a number of benefits.

"Pro bono" is short for the Latin "pro bono publico" which means "for the public good." In other words, doing something for free for the benefit of your community.  At 4th Corner Network (my little company) we've provided pro bono services for 20 years or more and expect to continue doing so well into the future.

Pay It Forward - I feel an obligation to the people in my community. After all, I've made a career working in and around the court systems and have benefited by living and working in this society. There are a great many people who can't afford legal services in the usual manner (fee for service) and I consider it my duty to assist them in finding justice within the system. The only way that will happen is if those of us who have had some modicum of success donate our time and effort (and money) to assist them.

Avoid Being Overwhelmed - The needs always out strip the available resources. When we first started offering pro bono services we were amazed at the extent of the need here in our little corner of the country. By hooking up with an organization named LAW Advocates (they offer more but think volunteer lawyer program) we were able to use them as a screening system. By only accepting assignments through LAW Advocates we limited how many pro bono assignments came to our door and felt confident that these people were truly in need of assistance.

Which Services to Offer - We provide pro bono service of process, legal messenger, and some supplementary services such as skip tracing when it is related to service of process. Additionally, we are active in other ways. For instance, I've been on the Board of Directors of LAW Advocates for a number of years. We also volunteer time and effort to help them put on fund raising events and other activities.

Pay Off #1 - It may sound silly but offering such services simply makes me feel good about myself.

Pay Off #2 - Your visibility in the legal community is enhanced in a number of ways. You are looked upon as not simply another vendor offering some service or product but also as a valuable resource.

Pay Off #3 - Professional respect. The topic of professionalism has been a hot topic at NAPPS and WSPSA for years. Community involvement is one way to improve both our individual reputations but also that of all process servers.

Pay Off #4 - Great advertising. It can't be denied that involvement in pro bono services can help business in a number of ways. It allows you to meet people and establish connections which might never have happened via any other activity in which you might be involved.

I would love to see NAPPS or WSPSA do some things to encourage our members to offer pro bono services. It might be possible to establish some kind of screening system on the NAPPS website. Or perhaps a simple statement on a member's listing letting people know you provide these services. Better yet, establish some kind of coordination with the American Bar Association or individual state associations.

Quite simply, this is something professionals do. Doctors do it. Attorneys do it. Contractors do it. How about you? Do you do it?

Comments (0)
Robin Mullins June 19th, 2011 07:09:32 AM

I continue to receive occasional reports of service of process being conducted via some form of electronic transmission. With the approval of a few courts around the world we've seen service via e-mail, text message, FaceBook, etc.

There's also a lot of talk about how some disreputable process servers are poisoning the well for those who perform their work with honesty and integrity. These so called "bad apples" are supposedly making the use of e-service that much more attractive to our courts. Fortunately, there has been a little push back from some courts such as the recent ruling in a Federal Court that an IP number is not a person. Click here for more information on that particular case.

My fiancee (Lynn), who has been kind enough to listen to me when I talk about process serving, made a very interesting point the other day while we were at the NAPPS Annual Conference. She said that maybe it isn't e-service about which we should be so concerned. What if the legal system became so fed up with our "bad apples" that it decided to restrict the service of process to law enforcement or those appointed by the courts. This is already done in some states and, at least here in Washington, would require only minimal changes in the law to make it effective.

Well, you might ask, what does Lynn know about serving? But, before you go there, I'll point out she was a legal secretary and law office manager for around 30 years. She is also quite sharp, intelligent, and is able to see connections quickly that take others (like me) much longer to recognize.

I think she's made a good point. The future might look different than the present but not in the way many of us are expecting.

Comments (3)
Robin Mullins May 9th, 2011 11:48:56 AM

Is NAPPS still relevant?

I think this question is on the minds of a lot of people. Some are concerned for NAPPS but others I'm not too sure about.

Certainly the level of discourse demonstrated by some members at the Conference was less than cordial. One young man, running for a Director position for the first time, commented how NAPPS should be embarrassed for itself. He pointed out that there were several members of the UIHJ in attendance (the UIHJ represents process servers in 73 countries) and that the public comments of certain NAPPS members during the Conference was shameful. Even though I was only able to attend the elections part of the conference on Saturday afternoon, I have to agree with the gentleman's comments.

There seem to be two major factions in NAPPS and I'm not sure either one of them is working for the best benefit of the members at large. Instead there appears to be a great deal of self interest and a complete disinterest in building bridges. This is truly unfortunate.

Although I've been in NAPPS since 1984 my involvement has been focused primarily on the state level (Washington). In San Antonio I was asked to step onto the national stage to fill in for a speaker who was unable to attend due to a family emergency. I was honored, agreed to help out, and immediately started figuring out how fulfill the request in a responsible manner. Being unaware of the "politics" in NAPPS it took me less than half an hour to make a mess of things by seeking assistance from people who, unbeknownst to me, were in different factions. Within an hour it was such a mess that I declined to have any part of it.

I spent seven years working on the board of the public school district in Lynden, WA. There is a state association of school boards which provides a variety of services to the local districts. One thing they offer is education and training. This is hard core stuff which can make a real difference in the effectiveness of the local boards. Over and over again they teach that board members should be motivated by one central question - What is best for kids? As school board members we were taught to leave our egos at the door. And, usually, that is what happened.

Perhaps those who consider themselves leaders in NAPPS should ask themselves - What is best for members? Their answer to this question will determine the answer to the question at the top of this post.

This does not have to be a zero sum game ladies and gentlemen. It is possible for everyone to win.

But only if NAPPS remains relevant.

Comments (0)
Robin Mullins May 9th, 2011 06:43:39 AM

I'm curious about the Certificate of Attendance everyone received at the conference. It says, "This certifies that Robin Mullins has completed 5 hours of education and training by attending the NAPPS Continuing Education Program." So what am I curious about? Well, let's start a list.

• I didn't know NAPPS has a continuing education program. Assuming it does then of what does it consist?
• What is the goal of this program?
• How did I get enrolled in it?
• Is my knowledge going to be tested?
• Why did I receive the certificate in my welcome packet?
• Since I didn't actually attend 3/4 of the conference (I was manning a table in the exhibitor's room)  what did I do to earn the certificate?
• Why did my fiancee, who accompanied me to the conference, receive a certificate when she is neither a member of NAPPS or a process server?

OK, I could go on with the list but by now the point should be clear. The certificate, and the 5 hours it represents, is of no value to me or anyone else.

A lot of noise is made about educating our membership but, as best I can tell, that's all it is - noise. When we're handing out certificates simply because a person has managed to show up for a meeting then the bar has been set too low.

If we're going to say we have an educational program then let's have a real one. Let's teach people. Let's test their learning of what has been taught. Let's raise the bar and hold people accountable.

Let's raise the bar.

Comments (0)
Robin Mullins May 8th, 2011 10:34:10 AM

Attention NAPPS Board of Directors - You need to hire a professional parliamentarian to manage the conduct of our meetings. Robert's Rules of Order were created for a reason and today's meeting (Friday the 29th) was a perfect example of that reason.

Here is a link to the local unit of the National Association in San Antonio. Click here.

Here is a link to the local unit in Massachusetts (for Boston next year). Click here.

We seem to have plenty of money for many other purposes so perhaps you could find it in the budget to hire a professional to do this important job. AND GIVE HIM OR HER THE AUTHORITY DUE THE POSITION.

Comments (3)
Robin Mullins April 29th, 2011 06:28:25 PM

As you all know, there are three types of insurance companies - 1) Domestic; 2) Foreign; 3) Alien

Domestic companies are served by presenting the summons (and other documents) to any agent in the state who is authorized to solicit the company's policies.

Foreign and Alien companies are served by presenting the summons (and other documents) to the Insurance Commissioner's office in Olympia.

Today we were assigned the task of serving Safeco Insurance Company of America.  So the first thing we did was to have a look at the Insurance Commissioner's website in hopes of determining into which type of company this particular company should be classified.  Was it domestic, foreign, or alien?  Below is a screen print of what we found.



It shows two addresses and they are in different states.  So what type of company are they?  Given the addresses shown we were pretty sure they are alien (formed in another state).  I mean, after all, why would a domestic (formed in Washington) insurance company have a mailing address in Boston?   But one person in our office (Linda Duralia) kept asking questions and I finally said I would call Olympia and see what the people at the Insurance Commissioner's office had to say.

Good thing I called because we (I) had it wrong.  As it turns out, Safeco Insurance Company of America is a domestic company.  We almost served them incorrectly!  Bless Linda's little heart for continuing to ask questions.

I ended up speaking with four people at the Insurance Commissioner's office.  The last one was Laura Walker and she is their web master.  After describing the problem she agreed it would make a lot of sense to show on their website what they call the "domicile type" for each company.  As it turned out they already have that information in their database and it is visible on their internal web pages but not on the public page that you and I can see.

Laura added my suggested change to their "to do" list and, hopefully, we'll soon be able to determine a companies domicile type with just a quick visit to the Insurance Commissioner's website.

Comments (1)
Robin Mullins March 25th, 2011 11:47:47 AM

The seminar is receiving a very nice response from process servers, private investigators, and people looking to get in to the business.  I recognize several of the names who have signed up and it looks like it is going to be an excellent seminar with lots of give and take.  Good discussion, lots of questions - Oh yeah, this is going to be a good one.

Well over half the seats are already taken so if you want to attend you had best sign up soon.  Here's the link to the reservation form.  Click here.

Comments (1)
Robin Mullins January 20th, 2011 09:00:29 PM

I've been working hard lately on the C4PSE educational website.  Today I'm creating test questions for the section on service of a summons and I thought of a rather interesting scenario.  I am interested in hearing how you might handle this situation.

You need to serve a summons and complaint out of your local superior court on John Smith.  Today is the deadline and it is a big money case.  All you know is that Mr. Smith will be at  a gathering of his friends in a room at a local restaurant.  You have no idea what he looks like.

You arrive at the restaurant on time and approach a waitress.  When you ask for Mr. Smith she points you in the direction of their small banquet room.  She tells you he just arrived and went into join the other guests.  You walk into the banquet room and notice there is only the one entrance, so he couldn't have left through another door.  

There are 10 people in the room.  They all turn and look at you.  You ask for Mr. Smith but no one responds.  It is like you have "PROCESS SERVER" written across your forehead.  Again you ask for Mr. Smith and again no one responds.  In fact, now they are talking among themselves and totally ignoring you.

Realizing you must do something you hold up the documents for all to see and proclaim in a loud voice, "Mr. John Smith, I am serving you with legal documents.  Please step forward and accept them."  No one steps forward.  You drop the documents on the floor and leave.  Later you complete your proof of service and submit it to your client.

Is the service valid?

Comments (5)
Robin Mullins January 19th, 2011 04:00:38 PM

Whether you're attending one of our seminars or one being presented on another topic, here are a few ideas on how to get the most out of your money and time investment.

Prepare Yourself
Think about the topic ahead of time.  Write down several specific ideas and questions.  Take these with you and find an appropriate time to share or ask.

Network
You're not only there to listen to the speakers.  You're also there to speak with the other people attending the seminar just like you.  You'll be amazed at how much you have in common.

Bring Business Cards
This goes hand in hand with networking.  Exchange business cards with as many people as possible.  On the cards you receive try to take a moment and write something on it about the person who gave it to you.

Collect Handouts
The learning process doesn't end after the last speaker.  Take home all the handouts for later review.  This will double the amount you learn from what the speakers had to say.

Take Notes and Read Them Later
Good learning isn't done by only one method.  You listen to the speaker.  You write notes.  You read your notes.  At each step you learn more about the topic.

Share With Others
To really imprint material in your mind share it with others.  This is a form of teaching.  The act of teaching requires you to think hard about the topic and, in effect, you are teaching yourself.

Stay in Touch with the Speakers
Follow up the seminar with an e-mail or telephone call to the speakers.  Ask them questions you didn't think of at the seminar or ask for sources of additional information.

Comments (0)
Robin Mullins January 12th, 2011 03:48:45 PM

The Center for Process Server Education is presenting a full day seminar covering the basics of service of legal process.  

It is scheduled for Saturday, February 12, 2011, at Green River Community College from 9 a.m. to 4 p.m..

The materials covered are appropriate for both new and experienced process servers, private investigators, legal assistants, paralegals, and students entering any of the legal support career paths.

For full details and to register please click here.  NOTE - The registration form may experience issues with Chrome.  If you use Chrome as your browser and experience difficulty, please switch to either Internet Explorer or Fire Fox.

Comments (0)
Robin Mullins January 12th, 2011 03:42:01 PM

There's been a recurring topic of discussion in our industry since the very earliest days of NAPPS and the various state associations.  Some have argued we are a profession and others claim we are a trade.  Both sides tend to turn to the dictionary for definitions and support.  Both sides are firm believers and present solid cogent arguments.

In my experience, whenever I've seen circumstances such as this (more than once), I've found the truth tends to lie somewhere in the middle ground between the two positions.  Until that middle ground is found the arguments will continue.  In some cases, the situation has been, and can be, destructive to the underlying organization and purpose of the group involved.

Recently several articles and letters to the editor have appeared in the NAPPS Docket Sheet.  Its been the typical tennis match, with the ball being volleyed back and forth.  Each side attempting to out score the other but, in reality, neither is gaining any traction.  Both sides are right in their own way and, at the same time, wrong.

Tod Pendergrass (Texas) and Phil Geron (New Jersey) have been the standard bearers for the "trade" team and Paul Tamaroff (Georgia) has been the knight of the "professionals."  Both teams have written well with passion and logic.  But they're not getting anywhere.

I believe a middle ground exists.  It is there waiting to be found but that won't happen until the various actors exhaust themselves and their arguments.  Then, and only then, will progress be made, most likely by the rest of the industry, and will leave the protagonists behind, wondering what happened when they weren't looking.

As a suggestion, perhaps they should all carefully consider the word "accountability" before they write their next article for The Docket Sheet.

Comments (0)
Robin Mullins November 26th, 2010 09:23:55 AM

Some additional details have come to light on this topic.

First, it has been confirmed that the collection agency which was fined by the State for the process server's early morning service has billed the fine and their costs back to the process server.  This is not at all surprising.  Having reviewed the statute, 19.16 RCW, I suspect a judge would rule in favor of the collection agency if they have to go to court in order to collect from the process server.

All at once, in the blink of an eye, process servers are now considered either an extension of the collection agency whose papers are being served.  The full weight of Washington's collection agency laws are being place on our backs.  The implications are enormous and I haven't even begun to imagine them all, much less understand them.

Several process servers have suggested the ruling by the Department of Licensing should be appealed but that opportunity closed some time ago and the collection agency chose not to do so.  In a way you can't blame them.  Appealing would have increased their costs considerably.  And, in my opinion, they would probably have lost.  An adverse ruling on appeal would have set an even stronger precedent.

Second, I've heard the Washington Collectors Association is considering a legislative proposal to solve this problem.  This makes good sense.  I trust the WSPSA Board of Directors and Legislative Committee will work closely with the WCA in this effort.

Finally, if the full force of 19.16 RCW is going to be applied to process servers then there is a lot more at stake.  For instance, how about this from 19.16.250.

A communication shall be presumed to have been made for the purposes of harassment if:

• It is made with a debtor or spouse in any form, manner, or place, more than three times in a single week;
• It is made with a debtor at his or her place of employment more than one time in a single week;
• It is made with the debtor or spouse at his or her place of residence between the hours of 9:00 p.m. and 7:30 a.m.

This could mean a server can't attempt service more than three times in a week.  This could mean a server can't attempt service at the defendant's place of employment more than once a week.  We already know the third one is being applied to us.  

As best I can tell, this ruling will only apply to collection documents.  I am certain it applies to such documents from collection agencies but what about collection attorneys?  If it does apply to collection attorneys does that include attorneys who are general practitioners but occasionally handle collection cases?

We can only hope a white knight bill can make its way through the legislature as soon as possible.

Comments (9)
Robin Mullins November 25th, 2010 02:59:33 PM

This past August the Washington Department of Licensing handed down a ruling which equates service of legal process with debt collection.  This has the potential of creating major problems for any process server who serves process for a collection agency.  There is a link to the actual decision at the bottom of this article.  A reading of the decision finds several interesting statements both on the part of the collection agency and the adjudicating officer.

In paragraph 1.6 the collection agency attempted to defend itself by claiming:

• "Columbia Recovery Group LLC in no way asked for defendant [SM] to be served prior to 7:30 am and we are greatly disappointed to find out that this was the case."
• "We feel that the violation was committed by [the server] working for Xpress Legal Support LLC."

In paragraph 2.7(d) the adjudicator says:

• "Service of legal documents is a form of communications with a debtor."

In paragraph 2.9 the adjudicator found a principal/agent relationship between the collection agency, the process serving company, and the process server.

Based on the adjudicator's findings several conclusions may be drawn which could have an immediate impact on process servers in Washington.

First - We may not be able to serve collection documents from collection agencies before 7:30 a.m. or after 9:00 p.m.

Second - Your collection clients may not be adverse to throwing you to the dogs.

Third - The rest of the Collection Agency statute may be interpreted as applying to process servers.  For instance, you may not be able to serve a person at their place of employment if they write the collection agency and say they don't want to be contacted there.

Fourth - If a process server is an agent of one of the parties (the collection agency in this situation) then it may be argued the server is no longer a disinterested party.

There exists in Federal law a little item called the Fair Debt Collection Practices Act (FDCPA).  If you click here and go to page 2 and begin reading at section 803 Definitions, you'll find that process servers are specifically exempted from the requirements of the FDCPA.  Unfortunately there is no such exemption in the state statute.

This is something WSPSA and NAPPS should be concerned about.  I strongly suspect the collector's association would be interested in discussing solutions.

Comments (4)
Robin Mullins November 18th, 2010 01:53:00 PM

I followed a link supplied by NAPPS member Jeff Bannister this morning and almost wish I hadn't.  Here's the link: Click Here

It goes to an article on the Sun Sentinel newspaper website.  The Sun Sentinel is located in Fort Lauderdale, FL.

The article starts out as another exposé on the disastrous foreclosure situation (robo-signers and all that) but fairly quickly brings up the problem of false serves made by process servers.  The problem is so bad the Florida Attorney General is looking into it.

Is this train wreck ever going to come to an end?  Are process servers around the country ever going to figure out that what we do is IMPORTANT?

Comments (3)
Robin Mullins November 4th, 2010 01:41:44 PM

One of the most useful tools in a process servers belt is the USPS form officially known as the "Request for Change of Address or Boxholder Information Needed for Service of Legal Process" which is informally known as the Postal Trace form (duh).  

I've attached two samples for your use.  One is the official USPS form exactly as it comes from the Post Office.  The other is the adjusted form we use at 4th Corner Network.  Obviously it is possible to adjust the USPS form to a certain degree but I can tell you from experience that you can't adjust it too much or the Post Office will balk at your attempt to improve on their work.

You can download these files and adjust them for your own use.  They're in pdf format so you may need to retype them.

Comments (0)
Robin Mullins October 29th, 2010 09:13:41 PM

Last year I took a nasty hit on my E&O insurance.  My office forwarded an auto tort case to a server in another part of the state.  The service somehow went sideways and was over turned in court.  By then, of course, the statute of limitations had passed and the case was dismissed.  I'm still not sure of the details because the insurance company "defending" me has yet to tell me how I was at fault.  

What ever the case may be, I was effectively told that if I didn't stop forwarding papers I wouldn't  be able to renew my E&O coverage.  So that's what I had to do.

After subtracting out agent fees we typically did about $24K a year in forwarding.  Adding the lost income to the increased insurance premium (25% additional) that one bad serve has cost me a pretty penny.

Needless to say it has been an extremely frustrating experience.  In particular I'm frustrated with the insurance company.  Aside from a couple of brief telephone calls with the adjuster the entire thing has been clear as mud.  I'm not even sure the adjuster knew what a process server is or does.

One thing that told me the adjuster didn't understand our line of work was this question:  "Did you have a contract with them?"  I don't know of anyone in the business who maintains contracts with their remote agents.  Can you imagine this?  You receive a set of papers from a server on the other side of the country.  Accompanying the service documents is a multi-page contract they're requiring you to sign before you can actually start work on the assignment.  Good practice would require you to read the contract carefully, refer it to your attorney, and negotiate any changes with the other party.  Obviously this wouldn't work too well.

I'm also frustrated by the lack of a solution to the problem.  I was told to stop forwarding to any server who hasn't listed me as an "additional insured" on their policy.  Great, like that is going to work very well.  Most of the time we're using a server in some area we've never even heard of and will probably never hear of again.  How do you ask dozens and dozens and dozens of remote agents to add you as an additional insured?  In the current state of the industry it simply isn't going to happen.

I've put forward a partial solution to NAPPS by suggesting they ask each member "Do you carry E&O insurance?" and then display the answer in the membership directory, both hard copy and web based versions.  I know this is done by the Washington State Bar Association and is probably done by other professional associations as well.

Another part of the solution might be for NAPPS to create a standard contract for use between its members.  In my mind this harkens back to one of the first, and best, things NAPPS ever did - the creation of the standardized forwarding form.  Use of the standard contract could become part of NAPPS Best Practices and the Code of Ethics.

I know for a fact that my situation is not unique.  It is damned embarrassing to admit to such an occurrence.  But like any other nasty little secret it is best dealt with by exposing it to the light of day for a full and complete examination.

Comments (1)
Robin Mullins October 9th, 2010 02:36:59 PM

I've belonged to the Independent Business Association (IBA)  for many years.  For $150 a year they provide a monthly newsletter and an outstanding website both of which are jam packed with useful information for small business in Washington.  The following was taken from their home page:

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IBA is the largest broad-based small business organization based in Washington State.  We currently help over 4200 small business owners in Washington State and we can help you and your small business.  IBA has been serving the Washington State small business community since 1974 and you don't last 36 years unless you are doing a great job. This is IBA's non-member website so you can check us out and see examples of how we can help you and your business.  This is just a small sample of what is available for IBA Members.

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Not only do they provide a wealth of information to their members but they also lobby in Olympia on behalf of small business.  

And they're truly interested in the little guys in our state.  I say this because a number of years ago, when money was getting really tight, I decided to drop my membership.  They noticed I hadn't renewed and called me.  I explained the situation and they said they would maintain my membership until times got better for me.  Well times did get better and one of the first things I added back into my budget was the IBA membership.  

Have a closer look at them at www.ibaw.net.  They're nothing fancy but they are all business.

Comments (0)
Robin Mullins September 26th, 2010 02:42:47 PM

Here is the address to which you should send your amended quarterly reports.

Steve Tassoni
Department of Labor & Industries
P.O. Box 44162
Olympia, WA 98501-4162

Comments (0)
Robin Mullins September 23rd, 2010 04:54:46 PM

As the day progressed more details were learned about how to go about requesting your money back if you were in any way assigned to the 1101 classification.  

If you are currently in an audit be sure to bring this topic up with your auditor.  They should all be aware of the Seattle Legal decision but you'll want to make certain by asking if he or she about it.  If your auditor isn't aware of it then refer them to Mr. Tassoni.  

If you were recently audited with a negative result (as in they say you owe money) and you are still within you appeal time frame then examine the audit results for any reference to 1101.  If they used 1101 then make the Seattle Legal decision part of your appeal.

If at any time during the 3 years prior to January 1, 2010, you were in the 1101 classification then pull your records and file amended returns for each and every quarter to which the 1101 was applied.  Submit the amended return(s) to Mr. Tassoni.  If you are denied a refund, and you feel you are owed one, then file an appeal based on that denial.

There are some of us who were never in the 1101 classification.  People in this situation will not receive a refund because they never paid in at the higher rate.  There are others of us who were put in 1101 and we are entitled to a refund.  Oddly enough I happen to be in both sets of circumstances.

By the way, if you don't have your L&I tax records then you might be able to find them on their website.  All you have to do is establish an online account with them.  If they aren't online then you can request hard copies from L&I.

If you have additional information please let me know so I can spread the word.  As more information is available I will provide it to you here.  So keep an eye on this blog.

Comments (1)
Robin Mullins September 22nd, 2010 09:16:48 PM

During all the phone calls and e-mails flying around today, the topic of an attorney prepared form letter came up.  The idea being that in order to maximize your chances of success in getting funds back from L&I you need to make sure you dot all the i's, cross all the t's, and otherwise make your request in the proper manner.  The WSPSA Board had an excellent e-mail discussion with a final decision being made by President Randy Bennett.  Here's the text of his final e-mail.

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I have heard from Robin that the charge for this letter would be about $450.00 according to an email from Jennifer to Robin. If the question is should the WSPSA pay for the 1^st draft of this letter then each company would “adjust” the letter to fit the needs and situation, my vote would be that each member could be given Jennifer’s information and they could contact her to “hire” her to create a letter for the company they represent. She may offer a discount for the letter based on the number of people asking for her assistance but that would be between attorney and client. My experience is it is more then a letter asking for the funds and the details needed from the company must be researched by the company owner and /or the company accountant and submitted to L & I. These are either a spreadsheet showing payments/adjustments requested or completely amended returns for the time in question.  I am open to discuss this issue but this would be my chime.

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This makes a lot of sense to me.  WSPSA has gone to bat for us as a group over the past couple of years.  Now it is up to us to follow through and take care of our own nest.

If you don't have a relationship with an attorney you can contact attorney Jennifer Willner at jwillner@hsw-law.com.  She is an experienced labor law attorney and regularly represents businesses in cases involving L&I.

Review your L&I reports.  If you were put into the 1101 classification any time during the three years prior to January 1, 2010, they you may well have a refund coming.  But you need to request it yourself, they are going to seek you out.

Comments (0)
Robin Mullins September 22nd, 2010 02:14:33 PM

The following information may entitle you to the return of hundreds or thousands of dollars from L&I.

Over the past 2 years various WSPSA members have been at odds with L&I regarding their classification of process servers and the associated rates attached to those classifications.  Here is a brief history which appears to have brought about  a situation which should result in the return of considerable sums of money to various process servers around the state.

Approximately 2 years ago WSPSA members Greg and MaryLee Rustand came under audit by L&I.  The Department was attempting to reclassify the Rustand's employees from a low rate class ($.25 per hour) to a high rate class ($1.50 per hour).  They sought assistance from me and from WSPSA.  The danger to the entire industry was obvious.  I began working closely with the Rustands and WSPSA fronted money to help in paying their attorney fees.  The Rustands appealed the Department's ruling and effectively won when the Department agreed to go into rule making.  

Following 6 to 8 months of negotiations with L&I a new classification was created in the WAC's which was specifically for process servers.  The base rate, at around $.45 per hour, was a considerable improvement over the $1.50 per hour rate the Department was attempting to use.  Again this was spearheaded by WSPSA members and would not have occurred without WSPSA support.

Next came an accidental and totally unforeseen event when WSPSA member (now WSPSA President) Randy Bennett learned his company, Seattle Legal, could apply for reimbursement from L&I based on the fact that his company had been incorrectly classified under the high rate for years.  The Department refused his request and he appealed.  On appeal it was obvious to the judge that arguments originally developed in the Rustand appeal were correct and applied them directly to Randy's situation.  The judge ruled in Randy's favor and he is receiving a refund of over $30,000.  Thanks to Randy's courage his appeal set a precedent.  THIS IS VERY IMPORTANT TO MANY OF YOU.  

Finally came a string of audits of process servers all around the state.  Process servers have been handed bills from L&I for thousands of dollars over the past 8 months.  I've personally been handed one for over $12,000!

But nearly all of the 'back taxes' demanded by L&I failed to take the Seattle Legal precedent into account!  For instance, the $12,000 the Department wants from me (and my mild mannered partner Bob Zornes) is too high by at least a factor of 4.  We are already in appeal and expect much of it, if not all of it, to go away.  

THIS IS WHERE THE REAL NEWS BEGINS!

I received the following from MaryLee Rustand today.  I am personally aware of the source and believe the information to be 100% accurate.

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"I have news that could prove to be helpful to members of our Industry that were classified under Risk Classification 1101, for any period of time during the past three to four years.  L&I, according to my source, has appointed, Steve Tassoni, as the agent to work with all Process Servers Risk Classification Cases in the State of Washington.    Should anyone who was once under #1101 elect to appeal the classification rate all they need to do is the following:

Submit a written "Amended Report" under the rate for Process Servers # 6301.  Being misclassified, they will also need to reflect somewhere in their report what they paid in under rate #1101, compared to the corrected rate #6301 show the difference and request the difference balance be refunded.

All appeals need to be sent to the Department of L & I, addressed to the attention of the new agent working with our industry, Steve Tassoni.  According to my source, Steve Tassoni has been given all the files and is working with some appeals presently.

Just thought you'd like to know all of this.  I think it's important to share this information with others in the industry that were misclassified."

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If you paid any L&I taxes under the 1101 classification for up to 3 years prior to January 1, 2010, you may be entitled to a refund.  Likewise, if you have been audited and the auditor assessed you using the 1101 classification then you should immediately move to reopen the audit or appeal the decision and request your money back.  If the paperwork you received indicates your appeal period is over you should disregard it and follow the information as provided by MaryLee.  DO NOT WAIT.  We don't know how long this window of opportunity will remain open.

I am attempting to gather additional information and will post anything useful here for your use.  If you have information different from above please contact me as soon as possible.  My e-mail address is robin@4thcorner.com.

And keep this in mind.  The entire sequence of events was made possible by the Washington State Process Servers Association and, most importantly, because WSPSA members were able to work as a team towards a common goal for the benefit of the entire industry.  Are you a member of WSPSA?

Comments (0)
Robin Mullins September 21st, 2010 09:30:03 PM

Should we oppose e-service?  Can it be stopped?  Is there a middle ground?  How should NAPPS and the various state associations respond?  What should we, as individuals, be doing in advance of the onset of e-service?

E-service can't be stopped because it is already here.  It is a perfectly appropriate method of alternative service.

There is plenty of middle ground.  NAPPS's position is fine because it recognizes e-service's place in the overall system but emphasizes the importance of personal service.  This position should work well into the foreseeable future.

But, most importantly, we need to do anything and everything which will improve our image in front of our legislators and courts.  This means we do service by the book.  We've got to stop allowing our clients to push us into doing things which are wrong or outside the law.  We've got to stop working and associating with people who behave in that fashion.  Codes of ethics need to be strengthened and enforced.  Bad actors need to be ostracized.  

Process servers everywhere need to educate themselves.  We need to learn more about our chosen profession.  We must pay attention to what is happening around us.  More than once I have seen process servers express surprise and dismay at a change in the system which was highly publicized for months or years in advance simply because those servers chose not to pay attention to the world outside their own little bubble.

And, if there is no other way, government regulation needs to be embraced.  I'm generally not in favor of government regulation for regulation's sake alone.  But when activities are involved in which one person's behavior or actions impact another person's life or well being then regulation has an appropriate place in our society.  Service of process is one such place.  Process servers impact the life and well being of the person they serve, that of their client, and that of other process servers.  The laws of supply and demand simply don't act fast enough to prevent immense damage from being done by someone more interested in the fee than the service.

So with that, I'm going to take off my turban and give the title of The Great Karnak back to Johnny Carson.  

Comments (2)
Robin Mullins July 21st, 2010 10:21:11 AM

Ruminating about the future always makes me think of Johnny Carson's routine where he would put on a turban and take on the role of The Great Karnak.  Holding an envelope to his forehead he would entertain us all by reading its contents without opening it.  So here I sit, turban and all, with an envelope pressed to my forehead.

E-service exists and its use will increase over time.  However, for the reasons discussed in my previous post, I think the rate of increase is slow and will remain slow in the foreseeable future.  This means, in the near term, e-service will be used as an alternative form of service similar to snail mail, publication, or posting.  From that it follows that the impact of e-service on the average process server will be minimal.  In the near term.

But what factors could influence the rate of acceptance of e-service by the courts?

Cost is certainly an issue and our current hard economic times could play a role.  As in almost every other industry, technological advances in process serving will push costs down.  If e-service were fully implemented as a cost cutting measure (totally disregarding all other factors) the price of a service could be pushed down to levels not seen in decades.  Perhaps a dollar or less.  

Technology itself will play a role.  We are advancing at an incredible rate.  There are things happening in labs around the world which truly push the limits of our imaginations.  Suppose for instance, (and this is really off the wall and yet.......) we didn't carry our computers and phones around in our hands but, instead, they were imbedded in our bodies.  As radical as it may sound this is not that far outside the realm of possibility!  Could there be any question then as to whether or not a defendant received notice of a law suit if the notice was sent to the system built into his body?!

Our behavior will play an important and perhaps deciding role.  As discussed on this blog and on many others, the situation in New York was horrific and did an inestimable amount of damage to our reputation.  And, unfortunately, such activities have happened elsewhere and continue to happen to this day.  In my very strong opinion, if there is one thing which will push our legislators and courts in the direction of e-service it is our own misbehavior.  

More in Part 4.

Comments (0)
Robin Mullins July 21st, 2010 09:33:23 AM

The courts, as is their nature, are relatively slow to change.  My observation is that they typically lag behind society in many respects.  In nearly all instances this is a good thing for our country.  There are many reasons for this and I can think of a couple which apply directly to the larger issues surrounding technology and e-service in particular.

The courts are highly respectful of precedent.  There are very few new things under the sun and the courts have already heard and considered and decided many of them.  Therefore, except in unusual situations, they are loath to reverse previous opinions and rulings.  The fundamental concepts involved in e-service aren't really founded in technology.  Instead they deal with the concept of service itself.

A corollary to the courts respect for precedent is that they are not overly influenced by fads or fashion.  Today FaceBook is the "be all/end all" when it comes to socializing on the web.  But the courts recognize it wasn't the "be all/end all" yesterday and probably won't be tomorrow.  So although there have been some serves allowed using such social networking sites, the courts have shied away from allowing such service to become a daily practice.  The same applies to the use of e-mail, fax, snail mail, and newspaper publication.

Without going too deep into the subject you should realize our profession springs directly from the 5th and 14th Amendments to the Constitution.  They require due process and due process requires notice and that is where the process server enters the picture.  When a civil action is brought by one person against another it is that person's intent to bring the power of the state against the second person.  This is our civilized way of keeping people from using more violent means to resolve their differences.  And if the power of the state is going to be employed then notice is required.

In general terms, most courts require service by a method which is reasonably calculated to insure the party receives actual notice of the proceeding.  There are all sorts of ways and manners in which this is done.  All you have to do is compare the rules of service of one state with that of another.  No one state's rules are "better" than another, they are simply different.  However, you will find a pattern.  

That pattern involves a spectrum of requirements.  For example, here in Washington the rules move from the restrictive (personal service) through a moderate level (abode service) to the least restrictive (publication or even posting).  But accompanying the ability to use the less restrictive methods are requirements for diligence.  California has a perfect example.  As I understand the abode service rule in California, the process server is not allowed to use that method until at least two previous attempts at personal service have been made.

So, in my opinion, the courts have been moving in the direction of allowing e-service at just about the rate I would expect.  Slowly and with caution.  In the situations of which I am aware, the courts have required proof the person could not otherwise be served even after appropriate diligence.  The technology for e-service exists today and has existed for some years.  But the court's natural conservative nature has played out true to form.  They haven't jumped on the technological "band wagon."

More in my next post.

Comments (0)
Robin Mullins July 21st, 2010 08:39:54 AM

Recently I was asked by Seth Davis of ServeNow.com for my thoughts on the future of the process service industry with particular attention to the impact of e-service.  Unfortunately his time frame was rather tight and, due to work and family obligations, I wasn't able to put my thoughts together in time.  But I found his questions intriguing and have decided to take them up here.  So the next several posts will all deal with this subject.  Here are the questions Seth put to me.

1.	At what rate do you think courts have been moving toward accepting e-service of process as an alternative to the traditional method? Do you think it will be two years, five years, a decade, etc., or ever?
2.	Based on the legal developments you’ve been monitoring, how likely do you think it is that process servers will lose a lot of business to e-service of process? Any estimate on how much business it could take away?
3.	What do you think are some determining factors about whether e-service will be an accepted practice in states? Are there any reasons why you think e-service of process will fail to gain widespread use as an alternative to live process servers?
4.	Many process servers are dedicated to opposing e-service of process at the moment because they fear that it will take away a lot of business. If it does gain traction as a common method of service of process, can you think of some ways that process servers could adapt their business models to accommodate it?
5.	Based on the cases you’ve examined what are some flaws with e-service of process that courts recognize? In other words, what are some limitations that e-service of process has as opposed to traditional service of process?
6.	Do you think there’s still a window of time open to process servers where they can fight the advance of e-service of process, or would their time be better spent pondering how to adapt?
7.	What do you think process servers can do to prepare themselves for the widespread use of e-service?

As usually happens when anyone attempts to forecast the future my attempt will almost certainly be proven wrong.  There are simply too many factors to take into account and most of them are unknown to me.  So I want to make clear that my thoughts on these matters will change as future history unfolds before us.  Still, it is fun to ponder such ideas.

Comments (0)
Robin Mullins July 21st, 2010 08:14:25 AM

There has been an elephant in the living room for quite some time that no one has really cared to talk about.  Actually there are several elephants but the one that has come to my attention recently has to do with the posting of foreclosure documents on difficult to locate real property.

Posting a piece of property sounds so incredibly easy.  Just go out to the property and tack the Notice of Default or Notice of Trustee's Sale up any where on it.  Slam, bam, thank you maam, and you're done.

Unless you aren't certain you're on the property.  Then what?

With the explosion in foreclosures during the current economic down turn many process servers are doing a banner business posting notices through out their coverage area.  Most postings are straight forward.  The client supplies an address, the address exists, you go there and post the premises  Now there have always been a few difficult to locate properties thrown into the mix but I'm noticing an increase in their number over the past few months.  And I suspect their numbers will increase over the near future.

I've spent hours reviewing plat maps, road maps, aerial and satellite photos, and Google and Bing maps trying to locate properties which don't have addresses and effectively existed only in the mind of some developer who is in the process of going under financially.  They're usually properties which are heavily forested and often landlocked well away from any road.

Recently I received an assignment to post a parcel in Everett which was bordered on one side by I-5 and otherwise surrounded by acres of alder forest.  The forest floor was impassable due to thick blackberry briars up to 6 feet tall which covered the entire property and the surrounding properties.  My client informed me they had just had an appraisal done so the property shouldn't be a problem to post.  After positively locating the property using the excellent Snohomish County Assessor's mapping system I also checked Google and Bing in order to get a good look at it from above.  Something didn't seem quite right about what the eyes in the sky were showing me.

So I took a drive out to where the property is located to have a look around and, perhaps, accomplish the posting.  Once there I quickly decided the appraiser my client had used didn't know how to read a map.  He had definitely failed to locate the correct property boundaries but had located the properties surrounding the target property.  Without heavy work clothes, a machete, and a couple of hours of hard labor clearing blackberries there was no possible way to access the property.

Returning to my office later that day I began a series of telephone calls with my client.  I explained the situation in great detail, supplied maps and aerial photos, and told them it would take time and effort to get to the property.  They didn't really like that.  After all, their appraiser had reached the property.  In as polite of terms as possible I told them their appraiser was wrong.  I even offered to go out there with the appraiser.  They didn't like that either.

Then the point of this story occurred.  During one telephone conversation the comment was made that "no one is going to be out there checking, couldn't you just step into the woods somewhere and post it?"  OMG I thought to myself.  This was a client for whom I have worked for 30 years.  A good client.  They give me a fair amount of work, they pay their bill on time, and I've always had good relations with them.  The perfect client.

I explained as gently as I could that I don't do that.  I don't post a property if I'm not positive I'm on the property.  Though I didn't say it I wanted to shout "My signature on a proof of service has meaning!"

A couple of days later they withdrew the assignment.  I don't know what they did with it.  Maybe some other process server stepped into the woods and posted it.

Comments (1)
Robin Mullins July 12th, 2010 09:46:47 PM

Word continues to reach me of L&I audits of companies around the state.  The real assault is on the use of independent contractors (IC's).  As I've mentioned previously, the state is fundamentally opposed to the IC business model and they're making every effort to stamp it out.

A major problem comes from our side of the fence.  Many companies have set up their IC arrangements with little regard to the tax laws and see it simply as a "cheap" way of doing business.  That said, there are also companies who have paid attention to the rules and have made the proper arrangements and are still being told their IC's are actually employees.  From where I sit it looks like L&I is being arbitrary and capricious in their application of the 6 part test to our industry.

I see three courses of action.

1 - Everyone in the state move to the employer/employee model.  For multiple reasons this won't work.

2 - The industry leaders band together and appeal unfavorable audit outcomes.    Larger companies will need to foot much of the bill but there is nothing wrong with this since they have the most to lose.

3 - We convince the state that process servers are part of a unique industry.  This is not unknown.  In the late 1990's the servers in California were able to accomplish this very thing.  But, as with option #2, this will require our industry leaders to come together and work towards a common goal.

For the long term health of the process serving industry I see option #3 as the most useful and with the greatest possibility of success.  In my view, the most important aspect of option #3 is that it will resolve the issue for once and for all.  This must be an industry wide effort.  It won't be inexpensive and it won't solve everyone's current problems because some have simply been operating to far outside the rules.  It will require various companies, who in some cases may be competitors, to work together.

There is no guarantee we will succeed if we work together but, if we don't unite, we will surely fail separately.

Comments (2)
Robin Mullins July 3rd, 2010 08:48:58 AM

WSPSA Executive Director Eric Vennes recently announced the new WSPSA web site is online.  I've checked it out and it is beautiful.  Built by the same people who did the NAPPS and OAPSS websites, it is a tremendous improvement over the previous site.  Navigation is drop dead easy.  Go have a look at www.wspsa.com.

Comments (1)
Robin Mullins July 3rd, 2010 07:57:21 AM

Everyone should be aware that, as of June 10th, it will be a primary offense to use your cell phone while driving unless you are using a "hands free" system.  In other words, if a police officer observes you using your cell phone in the traditional manner you may receive a citation.

The penalty is $124.

Here is the part of the law most applicable to our situation:

"A person may not operate a moving motor vehicle while using a wireless communications device.  A person operating a moving motor vehicle who, by means of an electronic wireless communications device, (other than a voice-activated global positioning or navigation system that is permanently affixed to the vehicle) sends, reads, or writes a text message, is guilty of a traffic infraction.  A person does not send, read, or write a text message when he or she reads, selects, or enters a phone number or name in a wireless communications device for the purpose of making a phone call."

Although the final interpretation and application of the law will be made by judges around the state, the Washington State Patrol has offered the following guidelines.  NOTE:  These guidelines are subject to change at any time and without notice.

1.  If you have a phone near your ear you are in violation of the law and you will be cited.

2.  You are not "likely" to be cited if you are using a hands free phone or speaker phone so long as it is not near your ear.

3.  Texting and driving will result in a citation.

4.  If you are using your phone or a GPS device, and you appear distracted, you will be cited.

5.  If you are surfing the web you will be cited.

6.  Dialing a phone number is not "likely" to result in a citation unless it appears you are distracted.

I use a bluetooth ear piece.  It gets a little uncomfortable after a while but better that than a $124 fine.  

Comments (2)
Robin Mullins May 29th, 2010 08:49:05 AM

Multiple process serving agencies are under audit by L&I.  Unfortunately, some of them may not fair very well because of their business practices when it comes to using IC's.  Even companies who are in relatively good shape are finding the audit process difficult and time consuming.

I've learned through the Independent Business Association that L&I is targeting the construction industry and the service industry.  Both are known for paying cash to employees and for using independent contractors.  Both practices are considered red flags by L&I.

And don't think L&I is wasting our tax money with all the time spent on the auditing process.  The return rate is about $8 to $1.  In other words, for every $1 the state puts into the audits it sees an $8 return.  My business should be so profitable!

You'll find thorough descriptions of how L&I looks at IC's elsewhere in this blog so I'm not going to repeat it here.  That said, you need to know that perhaps the most important aspect of using IC's is to make sure they are licensed as an independent business with the state.  This is simple to do at the Department of Revenue's website.

L&I has a list of documents they'll want to see.  These include payroll ledgers, check registers, general ledgers, profit and loss reports, IRS forms (940, 941, 1040, 1065, 1120, 1120s, and W-3), cash disbursement journals, contracts, invoices (both payable and receivable), and the list goes on.  They don't want to see these for just a few days worth of work - they want to see anywhere up to and including 3 years worth of records.  For many of us small time operators this alone can be devastating in terms of time and lost productivity.

I'm using attorney Jennifer Willner for advice on my audit(s).  She helped the Rustands in 2008 and 2009 with theirs.  And she spoke at the WSPSA Annual Conference a couple of years ago.  She knows her stuff on this topic and I'm following her advice.  Her number is 360-392-3995.  Who ever you use for advice and guidance make sure they are experienced in the audit process.

If you think your situation might rise to the industry level then consider bringing it to the attention of WSPSA.  The Association helped the Rustands last year and the result was a new WAC just especially for process servers.  But if you've simply not been doing things the right way.....well then you're probably going to have a problem.

Based on advice from Ms. Willner, and from personal experience, I recommend you make every effort to cooperate fully with the auditor when your turn comes around.  Supply all the data they want and, literally, make the process as easy as possible for the auditor.  You will get no where if you piss them off (excuse my French).  If you get obstinate about turning over records they'll simply slap you with a subpoena and that is not what you want to have happen.

I've had some success in politely, but firmly, negotiating with the auditor.  Believe it or not they do have a heart and it is not their job to put you out of business but they will if they have to.  Most of them don't understand our industry and they use boiler plate forms with wording that sometimes just doesn't make sense to us.  Don't be afraid to ask questions and for clarification on anything which doesn't make sense to you.

I recommend that all communications, prior to the actual audit meeting, be in writing.  Use e-mail for most of it and certified mail, return receipt requested, for really important things.  It is vital you have a record.

My first audit meeting is next Wednesday, June 2nd.  I fully expect things to turn out just fine.  I'll keep you informed.

Comments (2)
Robin Mullins May 28th, 2010 08:22:59 PM

You're working on a personal injury case, an auto tort.  The statute has already run and 80 of the 90 days on the filing have already elapsed.  You've made multiple attempts at the target address but never found anyone home.  Neighbors say the targets, Mr. & Mrs. Smith, live there.  For the first time in all your attempts a car is parked in the driveway so you call your office and get the plate run through IVIPS.  Sure enough the plate comes back registered to the Smiths.  You knock on the door and a man answers.  "Mr. Smith?" you ask.  He looks you up and down and says, "No, I'm not."

What is your next move?

Comments (5)
Robin Mullins May 10th, 2010 04:51:50 PM

During the just finished WSPSA Spring Seminar a question arose regarding an individual's immunity from service of process.  There is at least one circumstance under which such immunity might be granted.  You'll notice I used the conditional "might" since, as you'll see, the immunity is by no means foolproof.  I reviewed a number of Washington appellate and supreme court decisions and the following (Click Here and then search for 54518-3-1) case summarizes the situation as well as any I found.

There is a rational basis for granting immunity from service of process for non-residents but not residents.  The basis for the distinction is apparent from the purpose underlying immunity for non-residents: The underlying purpose of the rule extending immunity from the service of unrelated civil process to nonresident suitors and witnesses, attending upon a local civil judicial proceeding, is to insulate the pending litigation against the interference and vexation which might arise from the untimely intervention of unrelated litigation.  It proceeds upon the ground that courts should not permit the progress of a civil trial to be interrupted by the service of process in other civil suits, the portent of which could prevent or tend to discourage the voluntary attendance of those nonresident persons whose presence is essential or desirable if justice in the pending cause is to be fully and fairly administered. The privilege of the immunity is, therefore, primarily a privilege of the courts rather than a privilege of the individual, resting, as it does, upon the foundation of judicial convenience and the furtherance of the orderly and unfettered administration of justice.  The exemption provided by the privilege, however, is not one to be arbitrarily and rigorously enforced upon all occasions; but, rather, it can and should be extended or withheld only as judicial necessities dictate.

My interpretation is that if you only have one shot at service, and it is while the servee is in the state for another legal matter, then you might want to take it.  That said, this is definitely the type of situation where your client should make the decision.  The service might hold or, on the other hand, it might not.  It will all depend on how the court interprets the "dictate" of the "judicial necessities."

Comments (0)
Robin Mullins April 26th, 2010 02:10:29 PM

In researching the meaning of residency I fairly quickly came across some information at the Washington Secretary of State's website that seems to answer the question.  Well, if not an answer then an explanation.

To be eligible to register to vote in Washington, you must be a resident of the state. The term residence is used differently for a variety of legal situations. For example, residency for tuition at a state college is defined by statutes dealing with state institutions of higher education. Residency for unemployment benefits or financial assistance is defined by statutes dealing with those topics. Similarly, for the purposes of voting, residency is defined in the State Constitution and in election statutes.

I've underlined what I think is the really important part of the paragraph.  It actually follows up well from my previous post where I described how the Department of Revenue views residency.  Basically the term "residence" will have different meanings in different contexts.  DoR will look one way, L&I another, and the Secretary of State in yet a third.

This is distinctly unsatisfying.  

Comments (0)
Robin Mullins April 21st, 2010 09:28:10 PM

With the passage into law of the requirement that process servers in Washington, who serve for a fee, must be a resident of Washington, questions have arisen as to exactly what it means to be a resident.  Gary Turpen (owner of Gary's Process in Renton) gave me some information he found on the Department of Revenue's website.  To read the original just click here.

For DoR purposes a person is a resident of the state if they meet any one of the following 9 tests.  NOTE:  For DoR's purposes, a person may be a resident of more than one state.

1.  Maintains a residence in Washington for personal use.  This is interesting in that it raises the question of what constitutes a "residence."

2.  Lives in a motor home or vessel which is not permanently attached to any property if the person previously lived in this state and does not have a permanent residence in any other state.  Hmmm, OK.

3.  Is registered to vote in this state.  But I think being registered to vote requires being a resident.  Circular logic?  Perhaps.  Looks like more research is needed here.

4.  Receives benefits under one of Washington's public assistance programs.  Ditto #2 above.

5.  Has a state professional or business license in this state.  Now this is truly interesting.  So a person could live in another state, but have a business license in Washington, and would be considered a Washington resident based on that license.

6.  Is attending school in this state and paying tuition as a Washington resident or is a custodial parent with a child attending a public school in this state.  Ditto #2 again.

7.  Uses a Washington address for federal or state taxes.  Another very interesting item.  So a person could live in another state but use a Washington address to pay taxes and therefore be considered a Washington resident.  

8.  Has a Washington State driver's license.  OMG, more homework.  Now I need to look up how the Department of Licensing issues driver licenses.

9.  Claims Washington as a residence for obtaining a hunting or fishing license, eligibility to hold public office or for judicial actions.  A final ditto on #2.

A couple of things to keep in mind.  This information only applies to the way the Department of Revenue looks at residency.  Also, it must apply to the person doing the actual service, i.e. the person whose signature will be on the proof of service.

I'll see what I can do to find out how other parts of state government look at residency.

Comments (0)
Robin Mullins April 20th, 2010 08:41:29 PM

The first WSPSA Spring Seminar went off rather well in Shoreline on April 27th.  Attendance was about right for a first effort and the Committee hopes to repeat this program next year.  If you would take a moment and complete one of these two polls it would be very helpful.

-----

Use this link to view my presentation on The Business of Serving Process.  There are a number of pdf attachments you will find useful.  In particular you will find 4 sample IC contracts embedded in the last slide.

The Business of Serving Process.ppt

If you would like to make a comment about the seminar, or about such events in general, please use the comment link below.

Comments (0)
Robin Mullins April 18th, 2010 10:00:37 AM

I found the following in the Dallas Morning News.

"And as his academic and professional background might attest, he's part of a new genre of repo guys – and women – who have gone highbrow in their approach to repossessing vehicles. At Hide & Seek, recovery agents use video cameras, BlackBerrys and laptops to do their jobs.

In addition, many reputable agents have taken the Certified Asset Recovery Specialists national certification program, which includes ethics, skip tracing, insurance coverage and tow truck operation.

"You can't get in the business and be legitimate with just a driver and a truck and a computer," said Thomas, who said he has been in the industry since 2005 after working several years as an analyst for the federal government."  (emphasis mine)

Hmmm, do you think process servers could use a Certified Process Server Specialist national certification program?  Hmmm, and maybe it should include ethics and skip tracing and insurance and maybe a few other things?

Naw, never happen.  Process servers don't need training.  

Do we?

Click here to read the entire article.

Comments (4)
Robin Mullins April 12th, 2010 07:39:43 AM

I was just alerted to another major instance of sewer service arising out of New York.  The industry needs to wake up and smell the roses (or, in this case, skunk cabbage).  Whether you think it is just a few bad apples about to spoil the barrel or, as I do, believe the problem is pervasive throughout the industry, either way the barrel is getting spoiled.  There are agencies falsifying proofs of service, others are requiring servers to sign blank proofs, still others are having office staff apply digital signatures, some who rewrite proofs to suit their needs, and more who forge server's signatures.

These bad apples are ruining the lives of hundreds of thousands of people through acts of perjury and forgery.  And they're going to ruin what should be a respected profession.  Our clients and the courts should be able to trust without question a professional process server's proof of service.  Unfortunately, it is rapidly approaching the point where they will be forced to do just the opposite.

Here's the article as found on the State of New York Attorney General's website.

BUFFALO, NY (April 7, 2010) - Attorney General Andrew M. Cuomo today announced that his office has shut down a Brockport-based process server company that repeatedly claimed in legal affidavits that its employees had made proper service of legal documents to thousands of consumers when in fact it had not. We Serve It For You served summonses, complaints and other legal documents on individuals on behalf of law firms.

Attorney General Cuomo’s Office entered into a settlement requiring Brockport-based We Serve It For You Process Serving Agency, LLC, operated by Joanne Marie Coy, John Coy, Theresa Buehler, and Wesley Converse, to immediately cease operations and cooperate with ongoing investigations. The business and its owners must also pay fees, costs, and penalties totaling $10,000 and John Coy must surrender his notary public commission. Cuomo’s office began investigating We Serve It For You in 2009 as part of an ongoing probe into debt collection lawsuits.

“The toxic business practices of this company impacted individuals across New York State,” said Attorney General Cuomo. “People need to have trust in the legal system, and that’s why we are banning this company and its owners from serving legal documents to the people of New York.”

Generally, process servers deliver legal papers via one of three methods: to the defendant personally (actual service), to a person of suitable age and discretion at the location of the intended person to be served (substitute service), or to the door of the intended person’s actual location and by mail to their last known address (“nail-and-mail” service). After providing service to the intended recipient, process servers would print an affidavit of service to prove that they had indeed provided the legal documents to the defendant.

Attorney General Cuomo’s investigation determined that those documents were regularly signed and mailed to John Coy, who would notarize them without witnessing the signature. From 2007 to 2009, We Serve It For You served approximately 54,000 complaints and maintained a database detailing each service. The Attorney General’s Office and the Unified Court System determined that:

• On more than 1,100 occasions, We Serve It For You process servers claimed to have made service or service attempts at two or more places at the same time.
• On more than 700 occasions, We Serve It For You process servers claimed to have made service or service attempts before they even received the documents to serve.
• On tens of thousands of occasions, John Coy notarized the signatures of We Serve It For You process servers when he did not witness the signatures.

Through the agreement with Attorney General Cuomo’s Office, We Serve It For You and its operators are permanently barred from having any legal or beneficial interest in any business involving the delivery or service of legal documents. The business will permanently cease all activities and dissolve.

We Serve It For You and its operators are also required to cooperate with the Attorney General’s ongoing investigations into illegal debt collection practices.

The settlement follows recent action against another process server, American Legal Process (ALP), which engaged in a similar fraud and caused more than 100,000 consumers to have costly judgments entered against them without the chance to respond or defend themselves in court. Aside from a civil suit and criminal prosecution against the owner of ALP, Cuomo’s office is seeking to have more than 100,000 default judgments that were caused by the faulty service overturned. More information about that case and tips on how to avoid bad debt collection practices can be found online at the Attorney General’s website www.nydebthelp.com.

The case is being handled by Assistant Attorneys General James Morrissey and Nathan Reilly, in conjunction with Dennis Donnelly, George Danyluk, Aric Andrejko, and Dan Johnson of the Internal Audit Unit of the New York State Unified Court System.

Comments (2)
Robin Mullins April 8th, 2010 07:00:00 AM

The Washington State Process Servers Association is presenting a full day seminar on Saturday, April 17th, in Shoreline just north of Seattle.  There will be six sessions starting at 9 a.m. and running until 4 p.m.  The first five sessions will feature experienced process servers speaking on topics relevant to the profession.

Robin Mullins (that's me ;-) will cover a variety of business topics ranging from how to register with your county auditor to setting up your business structure to making sure you know the difference between an IC and an employee.

Jim Cronin's topic is report writing as it relates to declarations of diligence.  Our clients and our courts know us primarily through the written word.  One way to impress a client is to provide well written descriptive declarations in those instances where the canned language of standard proofs of service simply isn't enough.

Gary Turpen's company probably posts more foreclosure documents than anyone else in the state.  He'll talk not only about postings but also how to conduct foreclosure sales.  Gary has seen nearly every situation conceivable in this specialized area of process serving and he'll share the solutions with us.

Pat Mahoney is (in my humble opinion) one of the best, if not THE BEST, process server in the state.  He's got 17 years under his belt in and around the Seattle/King County area.  Guns, dogs, you name it and he's faced it.  For tips and tricks there is no one better.

Eric Vennes, after many years as the owner of Northwest Legal Support, is now in the insurance business and specializes in writing policies covering process servers and private investigators.  He'll discuss all of the nightmare scenarios which can result in the process server being served instead of doing the serving.  From the liability point of view, process serving can be a high risk business.

But what about the sixth hour?  Frankly it should be the most fun and interesting!  We're hoping that most, if not all, of our speakers will hang around until 3 o'clock when they'll form a discussion panel to take your questions and offer advice on every aspect of the industry.

Here's a sample of what you'll come away with:
1.        Tips on how to accomplish those difficult serves that stymie the competition.
2.        How to post bare land in remote areas and when to tell the client you can't.
3.        Write a drop dead Declaration of Diligence sure to please your client and impress the judge.
4.        Knowing when to press hard to accomplish a service and when to back off to save your skin.
5.        Are you an IC or an employee and how to tell the difference.
6.        AND MUCH MORE.

And did I mention that the Washington Association of Legal Investigators (WALI) is holding a seminar the same day in Spokane?  Indeed they are!  And they'll have their own great set of topics valuable to both process servers and private investigators.  If you're in eastern Washington then Spokane is the place to be on April 17th.

WSPSA Spring Seminar Registration Form.pdf
WALI Spokane Spring Seminar Schedule April 17th.doc
WALI 2010 Spring Seminar Application .doc

Comments (1)
Robin Mullins April 1st, 2010 12:01:35 PM

After three years of effort, WSPSA was able to pass a bill through the Washington legislature which provides some measure of protection to our members along the borders with Oregon and Idaho.  It does this by placing a new requirement on who can serve process in this state for a fee.  Here are the details.

There had been concerns for years about out of state servers encroaching into the border areas of Washington.  The primary concern was along the Oregon border in the Clark County area and north as far as Thurston County.  Since Washington did not have a residency requirement the Oregon servers could come north and take work away from WSPSA members but Washington servers could not respond in kind.  The reason being that Oregon has long required anyone serving process there to be an Oregon resident.  WSPSA approached OAPS (our sister association in Oregon) regarding this issue.  At one point it was even suggested OAPS consider backing a bill in the Oregon legislature to remove their state's restriction but OAPS politely declined.

The first year the bill was introduced in Olympia it included not only the residency requirement but also a change in who the Department of Licensing was allowed to provide the "second" address on vehicle registrations.  We access this information via a system known as IVIPS.  The report shows two addresses, first is the mailing address and second is the physical address.  About six or seven years ago we accidentally lost (long story) access to the second address.  So this initial bill included not only the residency requirement but also the language needed to get back that second address.  Everything was flowing smoothly, there was no opposition, and the bill was progressing through the system nicely.  And then, just as a deadline was reached, a clerk in the legislature mistakenly left the bill sitting in the bottom of a basket.  It literally didn't move from one side of a room to another.  The deadline passed and that was it, the bill died.

Last year the bill was reintroduced.  Since there hadn't been any opposition the previous year none was expected this second time around.  Wrong!  A group supporting the interests of people suffering sexual abuse and domestic violence took notice of our bill.  They showed up and testified against it.  Without going into all the details let me simply say those people carry a lot of weight in Olympia.  They killed our bill because of the section regarding access to the IVIPS second address.  We worked hard to convince them we're the good guys but couldn't quite turn the corner with them.  The bill died.

This year we dropped the IVIPS section and went strictly with the residency request.  And, wouldn't you know it, one of the committee chairs had some suggestions to improve the bill.  He wanted to remove the long existing exemption for employees of registered process servers.  At first this almost killed the bill.  We weren't sure we could accept this change.  Over a period of a few days, having given things much thought and having listened closely to the sage advice of our ace lobbyist, Steve Lindstrom, we decided we could accept this change.  The bill moved forward through the various committees and through both houses and was finally signed into law by the governor on March 18, 2010.

The bill changed RCW 18.180.010 in a couple of ways.  Keep in mind 18.180 RCW only deals with process servers who serve for a fee.  If someone wants to serve for free they are exempted from its requirements.  

The first change adds the residency requirement.  If you serve process for a fee in Washington you must be a resident of Washington.  Service (for a fee) by a non-resident will subject the proof of service to attack.  By that I don't mean there is going to be a "proof police" out scouring the woods for process servers from another state.  No, it is worse than that.  If a non-resident serves process (for a fee) then the proof of service could be overturned in court.  In the highly technical legal language used by process servers that would be a "bad thing" because the server is likely to be held liable for what ever happens to the case.  Lord help any non-resident server if the case is a million dollar personal injury case or multi-million dollar property foreclosure.  Many attorneys know a good way to kill the opposition's case is to defeat service.

The second change removes the registration exemption previously afforded employees of registered servers.  This will effect companies such as mine because our servers are employees and not IC's.  It will have some effect on companies using IC's since they may also have employees, such as secretaries, who don't normally serve process but do on occasion, such as when a servee comes into their office to be served.  My plan is to register everyone who works for me.

Now, there is a third change with the addition of the language which says servers must be at least 18 years of age but this already existed in court rules, so it isn't really a change.  We put it in the statute for the sake of consistency.

Here is a link to the final bill:  Click here.

If you have questions please comment and I'll get back to you.  Or, if you like, you may call me at my office, 360-671-2455, and we can talk about it.

Comments (0)
Robin Mullins March 30th, 2010 12:31:25 PM

As reported in previous posts on this blog, and on that of Jeff Karotkin, a few process servers in New York City have helped that city once again make history.  The city council has enacted one of the most far reaching and stringent statutes ever seen in this country in an effort to control sewer service - which is process server slang for perjury.  Process servers for American Legal Process boxed up and dumped in the city sewers thousands upon thousands of court documents and then signed proofs of service testifying, under penalty of perjury, that they had served those documents upon the defendants.  False testimony, they did it over and over again.  American Legal Process had a reputation for being able to serve anyone and they could do it for  really low fees.  No wonder, they never left their office!

The problem is, this behavior on the part of process servers is not limited to the confines of NYC.  It has turned up in multiple states including, but not limited to, Massachusetts, Florida, California, and Minnesota.  AND THERE IS VERY GOOD EVIDENCE IT IS HAPPENING HERE IN THE STATE OF WASHINGTON.  I know of two companies who are currently practicing this behavior right here in my home state.  

With any luck the legislature or the state supreme court will step in and bring process servers to heel.  Before it is too late.  Before hundreds or thousands or tens of thousands of individuals are adversely affected by a few lousy process servers who want to make a buck so badly they'll check their integrity at the door.

Comments (0)
Robin Mullins March 25th, 2010 08:04:01 PM

The Washington State Process Servers Association (WSPSA) and the Washington Association of Legal Investigators (WALI) are both holding Spring seminars on April 17th.  The WSPSA program will be in Shoreline just north of Seattle.  The WALI program will be in Spokane.

This is an outstanding opportunity for process servers and investigators to not only enjoy great learning experiences but also to get to know each other on a personal basis.  Many of the skills used in each profession are easily transferable to the other.  Also, if you're a process server and think investigations might be a useful addition to your service line then the seminar in Spokane is just what you are looking for.  Likewise, many investigators serve process, or may be thinking about doing so, and Shoreline will be just your ticket.

Here are links to the needed registration forms for each seminar.

WSPSA Spring Seminar Registration Form.pdf
WALI Spokane Spring Seminar Schedule April 17th.doc
WALI 2010 Spring Seminar Application .doc

Comments (0)
Robin Mullins March 22nd, 2010 09:09:41 PM

With my previous post about the looming B&O tax increase I think I may have opened the political door just a bit.  This blog isn't about politics except as it may relate to service of process.  However, I opened the door a bit and now I want to gently close it with a touch of explanation.

Like I said in the previous post, I'm a centrist voter.  My goal as a citizen is to listen to all sides, evaluate the material (what ever it might be), and make a personal judgment on it.  Then, at the proper time, I participate in the grandest and longest running revolution this small world has ever seen (the American Experiment) by voting in every election.  I always try, though I don't always succeed, to cast an informed vote.  This is my duty, indeed my most sacred duty, as a citizen.

I may be naive but I am convinced that the citizens of a country are responsible for the government of that country.  This is especially so in a democratic republic such as ours.  I hold myself personally responsible (along with the other 300 million of us) for the conduct of our government.

Which brings me back around to my post about the B&O tax.  The legislators in Olympia are my (our) employees.  I have voted for (helped hire) members of both parties.  Unfortunately the members of the majority party are proving themselves (in my opinion) to be inadequate for the job at hand.  Therefore it is incumbent upon me to work towards their replacement.  If that replacement also fails then the process is repeated until I (we) finally get it reasonably correct.

I don't stand particularly left or right, conservative or liberal, Democrat or Republican.  I don't believe any certain manner of thinking is the correct and only one.  The entire spectrum, from far left to far right, has pieces of value for me.  

My bottom line is personal responsibility.  I believe (though I may be wrong) the state needs to control its spending more than what it has done so far.  But, if the state continues to increase spending, and the taxes to support that spending, then it is because this is what a majority of our citizens want.  The politicians are just there doing the job we (the collective we) hired them to do.  Don't blame the servant for the master's mistakes.  And we are the masters.

Comments (1)
Robin Mullins March 17th, 2010 08:32:45 PM

Most people are aware of the budget problems besetting the State of Washington.  What you may not be aware of is that once again Olympia is looking to tax its way out of the budget deficit in large part on the backs of small business.

The state Senate is proposing a .25 increase in the B&O tax (an income tax on business) as it applies to businesses in the service category (that's you and me).  If accepted the B&O rate we pay will increase from the current 1.5% of gross income to 1.75%.  Another way of looking at this is to view it as a 16.7% tax increase (.25 is one sixth of 1.5).

The state House of Representatives, not to be out done by their colleagues in the Senate, are proposing a .5 increase in the B&O tax.  If accepted this will move the rate for businesses in the service category from 1.5% to 2.0%.  This is a 33.3% increase (.5 is one third of 1.5)!

I've written my Democratic legislator and let her know she has lost my vote.  I've also let her know that my employees will know why they aren't getting a raise this year.  I'm a centrist voter.  Depending on the topic I've voted for both parties.  But this time I strongly suspect my next ballot will be a party line vote for the Republicans.

Comments (3)
Robin Mullins March 17th, 2010 07:48:47 AM

WSPSA has revised their pricing for the upcoming seminar on process serving.  They are now offering members of WALI (Washington Association of Legal Investigators) the same great price available to WSPSA members.  

So if you're a member of WSPSA or WALI you can get a full day of education on process serving for only $99.

See the registration form on my previous post.

Comments (0)
Robin Mullins March 8th, 2010 11:37:09 AM

The Washington State Process Servers Association is presenting an all day seminar on process serving and related topics.  It is scheduled for April 17, 2010.  The venue is the Shoreline Community Center located at 18560 - 1st Ave. NE, Shoreline, WA 98155.  A series of 1 hour talks beings at 9 a.m., breaks for an hour at noon, and continues on until 4 p.m.

Speakers include Gary Turpen, Pat Mahoney, Jim Cronin, Eric Vennes, and Robin Mullins.  Topics will be wide ranging from report writing to postings and sales to risk management to the business of doing business.

Lunch is included in the registration fee.

If you have questions please call Linda Duralia in Bellingham at 800-321-2455 or local 360-671-2455.

Use this link to open the registration form.   Follow the instructions on the form to reserve your place at the seminar.

WSPSA Spring Seminar Registration Form.pdf

Comments (0)
Robin Mullins March 7th, 2010 07:07:32 PM

I checked my e-mail this morning and received wonderful news from WSPSA lobbyist Steve Lindstrom.  SHB 1913 passed the senate last evening and is now on it's way to the governor's desk.  It makes to major changes for process serving in Washington.  In addition to already existing requirements anyone serving process for a fee must:

1.  Be a resident of the State of Washington.
2.  Be registered with their county auditor - This now includes employees of registered process servers.

It took 3 years and several amendments but we finally made it.  Representative Judy Warnick was the prime sponsor.  She and the WSPSA Board of Directors are to be thanked and congratulated.

This is the way a representative democracy is supposed to work.  

Here's a link to the bill - Click here.

Comments (0)
Robin Mullins March 3rd, 2010 07:38:39 AM

For those of you who may not know him, Jim Cronin is a private investigator located in the Mukilteo area.  He is a VERY active member of WALI (Washington Association of Legal Investigators).  And, of course, he does some service of process now and then.  Though I only know him over e-mail I've found him to be just a tremendous fellow.  Very professional and very sharing with his knowledge.  Here is a Jim Cronin "Tid Bit" I received today.

Here’s a little tidbit that might be of interest to process servers. If they have to serve an attorney, and he/she is being difficult, they can search by the attorney’s WSBA# to check this site to see what court appearances the attorney has scheduled and serve him/her at the courthouse.

http://www.mywsba.org/Default.aspx?tabid=177

http://dw.courts.wa.gov/?fa=home.attyTerms
 

	Jim Cronin, MPA, CFE Seattle Insurance and Legal Investigations
	PO Box 1327, Mukilteo, WA 98275
	( (206) 992-1555       FAX: (425) 514-0615

 

 

Comments (1)
Robin Mullins March 2nd, 2010 09:17:56 PM

One step closer.  I just learned our bill, SHB-1913, has moved out of the Senate Rules Committee and is now eligible for action on the floor of the Senate.  If it passes then it goes to the governor.

Comments (0)
Robin Mullins February 28th, 2010 02:47:48 PM

Being "in the news" is not generally a good place for process servers.  Let me give you a few examples.

#1 - Process servers commit perjury via sewer service in New York and Boston - Click here and here.

#2 - Process server commits murder, assault, and armed robbery in Las Vegas - Click here and here.

#3 - Process server arrested for unlawful use of weapon and criminal trespass in Castle Rock - Click here.

Folks, this is not the kind of PR we need.  It is definitely attracting attention but it is the kind of attention we can do without.  

As mentioned in an earlier post, New York is proposing to require process servers to carry GPS tracking devices whenever they're working.  Can you blame the authorities for doing this?  No, we can only blame ourselves.

We make our living based on the value of our signature and yet too many of us place no value at all on our own signature.  So how can the courts trust us?  

I expect to see changes in the near future and by that I mean the next four to six years.  I don't know exactly what those changes will be but I suspect most of us won't like them.  I think regulation is in the future and many of us in the business today won't be able to make the cut.

Look at yourself.  Look at those for whom you work.  Do you like what you see?

Comments (0)
Robin Mullins February 27th, 2010 04:27:46 PM

After three years of effort it looks like Washington process servers will finally receive a protection afforded process servers in many other states.  HB-1913, which adds a residency requirement to RCW 18.180.010, is advancing nicely under the watchful eye of our ace lobbyist Steve Lindstrom.

Here is the current wording of RCW 18.180.010.

(1)	A person who serves legal process for a fee in the state of Washington shall register as a process server with the auditor of the county in which the process server resides or operates his or her principal place of business.
(2)	The requirement to register under subsection (1) of this section does not apply to any of the following persons:
	(a)	A sheriff, deputy sheriff, marshal, constable, or government employee who is acting in the course of employment;
	(b)	An attorney or the attorney's employees, who are not serving process on a fee basis;
	(c)	A person who is court appointed to serve the court's process;
	(d)	An employee of a person who is registered under this section;
	(e)	A person who does not receive a fee or wage for serving process.

And here is the new wording as proposed in the bill.

(1)	Except as provided in subsection (2) of this section, a person who serves legal process for a fee in the state of Washington shall:
	(a)	Be eighteen years of age or older;
	(b)	Be a resident of the state of Washington; and
	(c)	Register as a process server with the auditor of the county in which the process server resides or operates his or her principal place of business.
(2)	The requirements under subsection (1)(b) and (c) of this section do not apply to any of the following persons:
	(a)	A sheriff, deputy sheriff, marshal, constable, or government employee who is acting in the course of employment;
	(b)	An attorney or the attorney's employees, who are not serving process on a fee basis;
	(c)	A person who is court appointed to serve the court's process;
	(d)	A person who does not receive a fee or wage for serving process.

NOTE:  There are two major changes.

First, of course, is the residency requirement.  Once the bill passes a person must be a resident of the State of Washington if he/she wants to serve process for a fee in this state.

The second change is the removal of the employee exemption.  Once the bill passes ALL process servers, who serve for a fee, must register.  Being an employee of a registered server will no longer exempt a server from registering.

We're very close but we're not there yet.  It must still pass the Senate Rules Committee and the full Senate.  Then it needs the Governor's signature.  Stay tuned.

Comments (2)
Robin Mullins February 27th, 2010 12:40:33 PM

Randy Bennett was kind enough to forward the following links along.  Educate yourself or suffer the consequences.

http://www.miamiherald.com/2010/02/22/1491994/beware-of-independent-contractor.html

http://www.nytimes.com/2010/02/18/business/18workers.html?em

http://www.gsmlaborcouncil.org/node/4597

Comments (0)
Robin Mullins February 27th, 2010 12:28:31 PM

The people at NAPPS headquarters in Portland really keep their ear to the heart of the membership.

After receiving a "few" phone calls and e-mails (OK, and maybe a blog post or two) from members, Gary Crowe, NAPPS Administrator, took the bull by the horns and resolved the Post A Job issue.  Recall that when it was first instituted the Post A Job system would send notification to all NAPPS members, regardless of where the actual job needed to be done.  Well this past week the following was sent out by Gary and his crew.

Dear NAPPS Member:
Fifteen minutes ago we launched the updated version of the NAPPS Job Post which incorporates the following changes:

1)  The member's name and company is placed automatically in the body of the post.

2)  If a zip code is used in the post, only members within a 50-mile radius of the zip code will receive the emailed post.

3)  If only a city and state are used in the post, only members that have a listing under that city will receive the emailed post.

4)  If a city, state AND zip code are used in the post, only members within a 50-mile radius of the zip code will receive the emailed post.

5)  If a member chooses to opt-out of system there is now a simple automated link at the bottom of each post.

6)  Jobs can now be posted in Canada by inputting only the City and State (the state acts like a Canadian territory).  Canadian zip codes will NOT work on this system.

This notice is also being sent to those members that have already opted out of the system in order that they may opt back in.  If you have already opted out and wish to opt back in, please send an email to claire@napps.org with OPT-IN in the subject line.

We strive to make this a useful tool for our members and have appreciated your patience while we have fine-tuned the system.

Gary A. Crowe

Nice!  Thank you Gary, much appreciated.

Comments (0)
Robin Mullins February 27th, 2010 11:54:42 AM

WSPSA member Randy Bennett reports his company, Seattle Legal Messengers, was recently audited by Employment Security and passed it with flying colors.  Randy uses the employee business model and, by all appearances, seems to be doing well with it.

Randy emphasized one important point over and over - Don't let the auditor come into your office.  Apparently there is no requirement that you let them through your door.  Instead, let them know you'll meet with them at a neutral location and you will bring everything they want to see to that meeting.  Randy's office is in Seattle but his CPA is in Mount Vernon so he proposed to use the CPA's office as the meeting place.  The auditor agreed and the meeting went off without a hitch.

Comments (0)
Robin Mullins February 27th, 2010 10:12:50 AM

A WSPSA member was kind enough to forward along the attached pdf document.  The company he works for is currently under audit by L&I.  One of his IC's said he received the questionnaire from L&I.  It was quickly determined all of their IC's had received the same questionnaire.  

We already know the IC business model is under close scrutiny at both the state and national levels.  We've been told (more than once) that government (L&I and Employment Security) doesn't think process servers will qualify as IC's under the six part test.  

If you're using the IC business model you should examine the questionnaire closely.  Ask yourself how your IC's will answer the questions.  And note that some of the questions are leading in nature.  

You're going to need to look at how you operate very closely.  Take a very close look at your IC contract (you are using a contract aren't you???).  You may need to change the language in order to account for some of the items brought out in the questionnaire.  

Even though I don't use it at 4th Corner, I am still of the opinion the IC business model makes a lot of sense for our industry.  But it will only work for you if you follow the rules to the letter.  Don't attempt to short cut things.  If you do you're setting yourself up for a big fine from L&I or Employment Security.

If your IC's begin receiving this type of questionnaire I recommend you do not attempt to influence their answers in any way.  Also, don't suggest they don't fill it out.  Think about it for a moment.  How do you think the auditors will classify a worker who doesn't complete and return it?  Pretty obvious those workers will be classified as employees by default.

Here's a link to the document.

L&I Independent Contractor Questionaire.pdf

Comments (0)
Robin Mullins February 27th, 2010 09:46:21 AM

NAPPS has a new feature on their website called Post a Job.  I'm trying to decide whether or not it is a good idea.  Or, let me put that another way, I actually think it is a good idea but I'm having trouble with their implementation.

Currently, if you post a job using this new tool, when you hit the submit button it will be sent to all NAPPS members.  So if I post a job for service in Portland, Maine, members in Los Angeles (along with the rest of the country) will receive the notification.  The only option members have at this point is to opt out of the entire program.  But that hardly seems reasonable because if I've opted out and a job is posted in Bellingham, Washington, (where I'm at) then I'll miss out on the opportunity.  So, as I see it, "opt out" is not an option at all.

Now I give NAPPS credit for efficient use of the subject line in the Post a Job e-mails.  It tells me it is a NAPPS Post a Job and the city and state where the job is intended for service.  So I don't have to open them in order to know it isn't for my area.  Fine and good but as the Post a Job system becomes more popular the number of these e-mails is going to increase from a trickle to a flood.  

NAPPS needs to limit distribution to those members in the area where the job needs to be done.  They could limit it by state or city or ZIP Code or in some other way.  

Like I said above, I think this is a good idea but I think it needs a tweak or two.

Comments (1)
Robin Mullins February 20th, 2010 06:56:36 PM

Given the current real estate economic situation, it is not surprising that we're seeing an increase in the number of suits being brought against banks and other mortgage holders.  The linked announcement from Mortgage Electronic Registration System, Inc., aka MERS, is interesting for two reasons.

First it tells us exactly how to go about obtaining service on MERS.

Second it tells us there may be a number of other entities around the country which go by the same name but are not in any way related to MERS.

I've printed and distributed the attachment to many of my attorney clients.

Click below to see the MERS Announcement.

Comments (0)
Robin Mullins February 20th, 2010 06:38:21 PM

Rumor has it the City of New York is placing some stringent new requirements on process servers doing business there.  Given recent history I can understand why but the word "overkill" might be appropriate.

NYC is proposing to require all process servers to carry GPS devices that will log their location on a regular basis.  The logs will then be made available, though I haven't heard to whom.  A city department?  Most likely.  The general public?  It wouldn't surprise me.

The truly sad thing is that we've done this to ourselves.  I heard someone describe the situation recently by saying "Service of process has become a commodity" and "The big companies have investors who are expecting a return and demand efficiencies in the systems."

A commodity - Is that all it is we do?  Harvest a commodity?  Have we lost sight of the 5th and 14th amendments?  Have we forgotten how basic our job is to the very bedrock of our society?  

It appears we have.  And the results are beginning to make themselves evident.  As some of us attempt to fill those demands for efficiency corners will be cut.  Some, who can't reach the level of business they want by honest means, will do as was done in New York, they'll commit crimes such as perjury and forgery.  

But beware the backlash.  GPS trackers are only the start.  We're making our own bed - at some point we'll have to sleep in it.

Comments (1)
Robin Mullins February 20th, 2010 10:22:40 AM

Late Thursday afternoon, the 18th, one of my servers had a rather unnerving experience while serving out in a rural area between Bellingham and the Canadian border.  Here's the link to a newspaper article - http://www.bellinghamherald.com/onpatrol/story/1299672.html

Many of us have ad similar experiences.  I've had a few myself, some involving guns or other weapons.  It looks like my server, Mark, did an excellent job of extricating himself from the situation.  Overall serving is a low risk job but, when something does occur, it can be frightening.  

I gave Mark the day off yesterday, with pay.  He needed to settle his nerves.  I plan on having a meeting with my servers within the next week to debrief Mark and attempt to analyze what happened and how it happened.

Be safe out there.

Comments (0)
Robin Mullins February 20th, 2010 06:42:01 AM

Over the past few days I've had occasion to observe the current WSPSA Board wrestle with a difficult topic - the expenditure of between $2,000 and $3,000 on a new website.  The debate has been conducted via e-mail and nearly every member of the Board has been involved.  Some very difficult questions have been put to those proposing the expenditure.  Information has been demanded and provided.  Arguments have been very thoughtful and civility has been maintained at all times.

As I mentioned in my last post I'm not currently a member of the Board.  I am simply a member.  And as a member I am very proud of our Board.  They are fulfilling their duties of office.  They are watching over our treasury and our membership.

They are leading.

Comments (0)
Robin Mullins February 19th, 2010 09:55:18 PM

Two friends sent me links to the same article today.  Here's the link:  http://www.nytimes.com/2010/02/18/business/18workers.html?em

Of particular interest in the article is mention that the rules regarding the use of IC's are changing.  After 30 years or more the IRS rules are being rewritten.  What they're going to say is anyone's guess at this point but I think it is reasonable to assume they will make it harder to qualify your workers as IC's.  And I wouldn't be at all surprised to see state rules (the six part test) adjusted similarly.

A good many WSPSA members utilize the services of IC's.  State employees with L&I and Employment Security have stated (on multiple occasions) they don't think process servers qualify under the existing six part test and a series of audits appears to be under way.  Who knows what things will look like if the rules are tightened even further.

I think WSPSA understands its obligation to offer assistance, under certain circumstances, to its members who are under audit.  I also believe WSPSA will be involved in fighting unreasonable changes to the six part test.  But if the Federal government is involved, well that changes things.  WSPSA's "war chest" is very small.  Perhaps NAPPS will become involved at that level.

If you are using IC's at this time you need to understand the current rules and you need to understand them very well.  You need to make certain you've got your house in order - if you don't you will fail an audit and the results could cost you dearly.

By the way, just to be clear, I am not attempting to speak for WSPSA.  I'm a member but I'm not on the Board.  But I certainly know WSPSA members and its Board quite well.  Given their actions in the past I think the above statements will be proven close to the mark.

Comments (0)
Robin Mullins February 19th, 2010 09:25:15 PM

This posting completes my direct analysis of the six part test used by Washington to determine whether or not a worker is an employee or an IC.  The sixth test is very similar to the fifth in that it is fairly simple to determine whether or not the worker can be classed as an IC.

6.  Maintain Books - If you want to use IC's you must make certain they are maintaining their own set of books.  They need to keep some kind of accounts receivable and payable.  They need to file their own tax returns (see tests 4 and 5).  They should maintain a checking account separate from their personal account just for business related income and expenses.  

I understand some IC's don't want to bother with this boring side of being in business.  They're process servers not bookkeepers!?!  The only problem is, if you get audited and the auditor looks closely at your IC's, and discovers they aren't keeping their own books - well you fail the six part test.  When he's done the auditor will hand you a bill for three years taxes plus penalties plus interest!  Now how much trouble is it to make sure your IC's are keeping their own books?  Given the alternative I don't think it is much trouble at all.

SUMMARY
I'll take a moment here to muse about what I've covered on this topic over the past couple of weeks.  And, because it was the department which is triggering so much angst in our industry right now, I'll say a few things about L&I.  But keep in mind that pretty much the same applies to Employment Security and the IRS.

We've been told by L&I that they are focusing on the process serving and legal messenger industry.  Some companies have been audited already, some are under audit, and others are sure to follow.  It doesn't matter how small you are you need to prepare for the knock at the door.

The interesting thing is, L&I is a creature of business.  It was created to solve some serious problems businesses were having with their employees.  Namely they were getting sued on a regular basis by injured workers.  Judgments were being handed down which crippled many companies and pushed others out of existence.  The solution was a system of insurance in which both sides, workers on one and business on the other, agreed to certain trade offs.  Workers gave up their right to sue and employers agreed to fund L&I.  

But time has taken its toll and the original problems have been forgotten.  Many in business now chafe under what are seen as burdensome taxes.  Some employees game the system and milk it for every paid day off they can get.  And society itself has changed thus making some of the established ways of doing things outmoded and outdated.

Process serving, though an ancient profession, seems to have slid under the government radar until only recently.  When L&I finally began to take some notice of us they attempted to apply their existing rules to a group for which they didn't even have a classification.  After considerable effort and negotiation L&I finally established a classification for us under the private investigator / security guard heading, 6601-07.  

We are an unusual industry.  We don't really fit the norm when it comes to government's preconceptions about business.  Even the application of the six part test doesn't make sense.  The test was created to keep prevent abuses in industries much larger than ours.  The most prominent of which is the construction industry.  We have little in common with most other businesses.  I don't think it would be a stretch to say we're somewhat unique.

I've received some information from my friend Tony Klein in California.  The process servers there have already gone through the problems we are now encountering.  As time permits I'll examine it and attempt to determine its usefulness to our situation.

I urge all of you, whether you use employees or IC's, to learn the law as it applies to your business.  Apply what you learn and play within the rules.  If you don't think the rules are fair then work to change them.

Comments (0)
Robin Mullins February 7th, 2010 03:09:59 PM

In my opinion, the first four tests are subject to a fair amount of interpretation and debate.  Here in #5 we're given a test that appears straight forward and lends itself to fairly easy compliance.

5.  Required Registrations - Have your IC's complied with all requirements for the operation of a business in Washington?  To answer this question in the affirmative you'll need to do a little background work but it is nothing onerous.  Have your IC's satisfied the following?

Department of Licensing - DoL requires the completion of a Master Business License application.  If you're in business in Washington you need to fill one out and submit it.  In return you'll receive a UBI number (Universal Business Identifier).  UBI numbers are used by various agencies to identify you as a valid business in Washington.

Department of Revenue - Anyone doing business in Washington needs to register with DoR.  In doing so they will receive the honor of paying the B&O tax (Business & Occupation - This is really a state income tax on business but that is another story for another day).

Local government - Many local governments have registration requirements.  You need to know with which each of your IC's need to register.  Usually they'll need a city or county business license.

Employment Security Department and the Department of Labor & Industries - You only need to register with these if you have employees.  Since many IC's don't have employees they probably won't need to register.  However, they can register and then exempt themselves from the taxes.  This might be worth thinking about because it will go a long way towards establishing them as truly INDEPENDENT contractors.

Department of Social and Health Services Division of Child Support - As with ESD and L&I, a business only needs to register here if they have employees.  When ever a new employee is hired they are to be reported to DSHS.  The purpose is to locate workers who owe child support.  

Secretary of State Corporations Division - If the IC operates as some kind of corporate entity (corporation, S-Corp, LLC, etc) then they must maintain their registration with this office.  I can see some advantages in having IC's who are set up in this way.  Seems to me it would really help a lot in establishing them as IC's.

I'm familiar with a situation where a process server failed to keep up his various registrations.  He went on for almost 10 years without a current UBI number.  But when one of his clients, who was also a process serving company, was audited, he became caught up in that audit.  Why?  Because the state said he was an employee and not an IC - even though they were in substantially different parts of the state!  And frankly, from the state's point of view, that is exactly what he was.  This created problems for him and for the company which was under audit.  Fortunately he has registered and is now square with the state.

Side Note - I don't feel sorry for people who operate a business under the table in order to avoid paying taxes and fees and then cry about it when they get caught.  I may not agree with the way taxes are collected or the manner in which government spends the money but I pay my taxes.  Anyone not paying their taxes is cheating society and is causing me (along with all other honest taxpayers) to pay more than I would otherwise.  There are plenty of honest ways to effect change.  Cheating isn't one of them.

Comments (0)
Robin Mullins February 7th, 2010 10:46:01 AM

Well I'm half finished with this series on the six part test used by the State of Washington in determining whether a worker is an employee or an IC.  From the telephone calls, e-mails, faxes, letters, and posted comments I've received, this is a topic of interest not just in Washington but in other states as well.  Obviously each state is going to treat this topic in its own way but, that said, there is a great deal of overlap across the nation.

As a reminder, you can see L&I's pamphlet on this topic by clicking here.

4.  IRS Taxes - "When you entered into the contract, was this person responsible for filing a tax return with the IRS for his or her business?"  Notice the similarity with test #3.  In particular the use of the past tense "was" in terms of when you entered into the contract.  Let's look at this from a different point of view by asking the question in a different way.

Can I turn an employee into an IC?  It seems the answer would be qualified "no" based on the fact that the worker was not responsible for filing taxes for his business at the time you entered into the contract.  I say "qualified" because it appears the worker could leave your employment, set up his own business (part of which is becoming responsible for the taxes related to the business), and then enter into a contract with you as an IC.  Frankly, this might work but it sounds like something government would attempt to prevent.

 Always keep in mind, government agencies do not like the concept of IC's.  Government's goal is classify all workers as employees.  To achieve that end government will make it difficult, especially for the unknowledgeable, to use IC's.  The claim government makes to support this goal is worker safety.  There is a lot of truth in that claim but I'm sure power and money also enter into the equation.  Thus the use of the past tense in tests #3 and #4.  

As I see it, the most clean cut way of achieving "yes" answers to them is to only contract with people who are already in the process serving business in one form or fashion, have been filing their own business tax returns,  and have never been your employee.  

Comments (0)
Robin Mullins February 7th, 2010 10:10:43 AM

Parts one and two covered supervision and separate business.  Part three is very similar to part two.

3.  Previously Established Business

The test gives us a single question to answer for this part.

Do they have an established, independent business that existed before you hired?  This is similar to test #2 but remember that, according to the rules, you must answer "yes" to all 6 of the tests in order to qualify a worker as an IC.  The question presented here may make it a little difficult to answer "yes" to it if you aren't careful.  As I read this test and speculated in my mind about its implementation by government, I reached the conclusion the contractee (that's you if you use IC's) can only qualify a worker as an IC if you can demonstrate the worker had a full fledged business before you contracted with them.

L&I suggests this demonstration can be made by showing the IC had other customers or was advertising for customers before you contracted with them.  I speculate that other forms of demonstration could be in the form of business licenses, proofs of registration with government agencies such as L&I and Employment Security, 1099's from existing clients, etc.  

The trap that exists in this test is the reference to the past - "... that existed before you hired?"  If you exercise some care I think this is quite doable in many situations.  Make certain a potential contractor has his government registrations in place, has his own business cards, has some kind of advertising page or brochure he can hand out, etc, before he signs your contract and before you assign any work to him.  

In essence, the contractor needs to be able to compete with you and, perhaps, has done so in the past.  If you don't allow an IC the ability to do this then you are removing some of their independence and making them appear to be an employee.  

If the server is an employee you have control but must pay taxes and be subject to various work place rules.  On the other hand, if the server is an IC you may lose clients to him.  I'm aware of a situation in the Puget Sound area where this latter actually happened.  An IC took away several accounts from the company with whom he was contracting.  The company survived but was hurt financially.  

There is always a trade off.  There is no free lunch.

Comments (1)
Robin Mullins February 3rd, 2010 04:47:19 PM

Recall that the first test in determining whether a worker is an IC or an employee related to supervision.  The second test asks whether or not the worker is operating a separate business.

2.  Separate Business

This test is broken down into 3 questions which are joined by the logical operator "or".  Frankly, I'm surprised they use "or" instead of "and" because the use of "or" means you only need to answer one of the three questions with "yes" in order to qualify the worker as an IC.

Do they offer services that are different from what you provide?  There are a lot of different ways this could come into play.  For instance, suppose your business doesn't serve process but acts as an aggregator.  You receive service assignments from a variety of clients but none of those assignments are served by you or your employees.  Instead you contract them out to local IC's who are process servers and do the actual serving.  In this arrangement you clearly do something quite different from what is done by your IC's.  On the other hand, suppose you (or your employees) serve some papers now and then.  In this case you are a process server just like the IC's.  Based on this part of the test, you cannot use IC's.

Or, do they maintain and pay for a place of business that is separate from yours?  This one is fairly simple.  Does your IC have his own office which is separate from yours and for which he pays the rent?  If the answer is "yes" then, based on this part of the test, he qualifies as an IC.  

Or, do they perform their service in a location that is separate from your business or job sites?  Answering yes to this one is a common reason for using IC's.  The IC covers an area outside of your normal coverage area.  For example, my office is in Bellingham and I cover Whatcom, Skagit, and Island counties.  But I don't cover Spokane County.  So when we have a paper for the Spokane area we send it to a process server in Spokane.  On the other hand, if the IC I want to use covers Skagit County then he won't qualify as an IC under this part of the test.

In general, this should be one of the easier tests under which you can qualify a worker as an IC instead of an employee.  And you only need to get a correct answer from one of the three questions which make up the test in order to qualify.  Just remember it is only one test out of six and you must qualify under all six.

Sounds simple but the devil is in the details.  For instance, suppose you claim you cover the entire state.  In that case you won't qualify under the third question (separate location).  And if you serve papers and they do too then you won't qualify under the first question (different services).  Which means you had better hope they maintain and pay for a place of business separate from yours.  This last could get a little tricky.  Suppose they work out of their home (or their car), the question may get asked as to whether or not this is indeed a separate place of business!  You may think it is a separate place but an Administrative Law Judge may think otherwise.  And guess whose opinion counts!

Comments (0)
Robin Mullins January 31st, 2010 07:02:07 PM

I've written previously about the terrible situation in New York where process servers working for American Legal Process falsified thousands upon thousands proofs of service.  This practice has become known as "sewer service" because of the practice of dumping the actual service documents in the sewer instead of serving them.

Jeff Karotkin has done a fantastic job of following up on the situation and has recently posted new information on his blog at http://serviceofprocesslookingforward.blogspot.com/.  I urge everyone to read his material carefully and take it to heart.  

There are people in our industry who care about one thing and one thing only - the all mighty dollar.  And they'll do anything to get it.  They'll forge signatures, they'll rewrite and change proofs, they'll  .....  My gawd, it makes me shudder to even think about what is going on in our industry.

And don't think that just because we're way out here in Washington we're somehow immune.  I assure you, we're not.  Absolutely we're not.  It is happening here.  Be careful with whom you're dealing.  If a client asks you to do things that make you uncomfortable then trust your gut - stop dealing with them.

Comments (0)
Robin Mullins January 31st, 2010 03:12:13 PM

There continues to be a great deal of discussion regarding the differences between an independent contractor (IC) and an employee.  This discussion is healthy and I hope most process servers are paying attention to it.  I've discussed parts of this topic before but this time I'm going to examine the six part test used by L&I to determine whether a person is an employee or an IC.  Just keep in mind that I'm a lay person and not an attorney who is expert in this area of law.  Click here if you want to see L&I's pamphlet on this topic for yourself.  You'll find all six questions on page five but let's start here with supervision.

1.  Supervision: Do they perform the work free of your direction and control?

On page four of the pamphlet L&I provides some additional information on this topic.  

You ARE NOT supervising if you are only scheduling and inspecting the work.  

You ARE supervising if you are telling your worker or a subcontractor’s workers how to do the job, assigning tasks, training, keeping time sheets, paying a wage or setting regular hours.

In order for a process server to be an IC it appears the contractee (the boss) must have very little control over the work the IC is to perform.  The contractee can tell the IC when and where the work is to be done and can inspect the work for quality.  

However, in order to avoid turning an IC into an employee the contractee must not instruct the IC on how to perform the work, cannot assign specific tasks, cannot provide any training, can't do the IC's bookkeeping, must pay according to a contract, and cannot set the IC's hours of operation.

So how does supervision impact the use of process servers?  Now I'm more familiar with using employees so if you think any of my ideas regarding the use of IC's are wrong please post a comment with your thoughts on the matter.

Scheduling - It seems to me the contractee can tell the IC about the work the IC is expected to perform and to set certain parameters, such as a specific time frame, so long as those parameters were set by the contractee's client..  For instance, it seems reasonable the contractee could say the first attempt is to take place within four days so long as this was an expectation of the contractee's client.  Scheduling involves more than time, it also includes locations.  Therefore the contractee could specify service attempts are to be made at specific locations where it is expected the target will be found so long as the locations came from the client.

Inspecting - The contractee can inspect the end product or the IC's progress at any point after the job is assigned.  It can approve of the IC's work or find it unacceptable in meeting the terms of the agreement (written or unwritten) between the contractee and IC.  

Those are the things the contractee can do and maintain the IC as a contractor instead of an employee.  But what about the things the contractor can't do?

Tell the IC how to do the job - I take this to mean the IC must be familiar with the rules of service and the nuts and bolts of how to accomplish service.  The former would include knowledge of RCW's, court rules, and case law.  The latter would include techniques for getting people to answer the door, which brand of computer to buy, which software to use, which type of car to buy, or information on maps, GPS's, etc.  These are tools of the trade and the IC would be expected to know about them or, at least, how to find out about them.

Assigning tasks - This deals with the means and methods of doing the work.  An IC needs to supply the means and control.  When the contractee steps in then the IC becomes an employee.

Training - IC's need to know how to do the job or they need to learn how to do it on their own.  It seems reasonable to me that the contractee should not be teaching the IC.  

Keeping time sheets - It is the IC's responsibility to monitor his own time.  If the contractee becomes involved in this it seems apparent to me the IC is no longer an IC but has become an employee.

Paying a wage - This implies regular remuneration based on a salary, an amount per hour, or an amount for each piece of work completed.  Taxes are withheld and paid by the contractee.  Seems obvious to me this will quickly convert an IC into an employee.

Setting regular hours - Once again it is fairly obvious that an IC would set his own hours and any move to set them on the part of the contractee would move the IC towards being an employee.  That said, if the IC didn't work the hours necessary to accomplish the job then the contractee would have every right to stop using that IC and find one that is ready, willing, and able to work the needed hours.

I'll take up the Separate Business question in my next post.

Comments (3)
Robin Mullins January 30th, 2010 09:11:47 AM

Needless to say, I could write volumes on this topic and not even scratch the surface.  In any event, here is a quick overview.

B&O Tax Increase
There is some talk of a B&O tax increase this year.  The last time the legislature increased business taxes to balance the budget was in 1993.  In November 1994 many incumbents were fired as a result.  With luck they'll remember that and only close some loopholes this year instead of saddling businesses with a major increase.  After all, we are the people who create the jobs in this state and pay the wages of every last state and local employee.

Sales Tax
Some legislators are considering either increasing the state portion of the sales tax from 6.5% to 7.5% and others are considering expanding the services on which the tax is applied.  Personally, I wouldn't mind it if they applied sales tax to process servers BUT only if they reduced our B&O tax to the same rate applied to retail sales.  That may sound crazy but it would actually improve our bottom line.  Of course it is crazy because they'll never do it.

Unemployment Tax
If you have employees you may have noticed an increase in your UI tax this year - even if you have a spotless record.  The UI tax is made up of two parts.  First is your experience record and the second is the social-cost tax.  Due to the economic downturn the social-cost part has increased dramatically, doubling and tripling in some cases.  However, Senator Holmquist and Representative Condotta are proposing a formula that will smooth out the increases over several years.  The same amount of money will be collected but over a longer period of time.  Not a bad idea at first blush.

Job Creation Tax Credit
This idea comes from Governor Gregoire - which means I don't trust it.  The idea is to give businesses a one time $2,000 B&O tax credit for each full time position they create and which stays in place for at least a year.  Once again, not a bad idea but there must be a catch to it somewhere.

Independent Business Association
This is a blatant plug for the IBA.  For a few bucks every year you receive one of the most informative newsletters around.  If you're not a member you should be.  I've been a member for years and am thankful they are there to take my money.  They represent small business in Olympia and, last time I checked, that includes all of us.  Check them out by clicking here - www.ibaw.net.

Comments (1)
Robin Mullins January 25th, 2010 09:28:43 PM

I've written previously about the use of independent contractors (IC's) as process servers and legal messengers.  Use the search tool to locate all the posts.  I won't repeat here what I wrote previously.

It has been learned through several sources that the Department of Labor & Industries (L&I) and Employment Security (ES) are indeed targeting process servers and legal messengers with plans to audit everyone in the state this year.  Their stated intent is to eliminate the use of IC's in our industry.  They are claiming none of us can pass the six part test they apply to determine whether or not a person is an employee or an IC.  Click here to open an L&I flier on this subject.  See page five for the six part test.

Some people in our industry think they can bury their heads in the sand and this threat will go away.  They think if they keep a low profile then they won't be noticed.  Following the "head in the sand" course is both foolish and risky.

It is foolish because it ignores the importance of working together as an industry to fight back against what appears to be an arbitrary decision on the part of the State of Washington.  Using IC's has been a part of process serving for many decades.  It has benefits for companies big and small.  The State is bound by its own laws and rules.  If bureaucrats are arbitrary in their application of those laws and rules then it is possible to hold them accountable.  But this is possible only if people work together.  Very few of us have the wherewithal to fight the State and win.  But by standing together it can be done.

It is risky because it assumes you won't be found out.  It is only a matter of time before all of us are found.  And when they find you the costs will be substantial.  The State can go back three years plus claim interest and penalties.  It is not a matter of "if" but of "when".  And don't think your competitors will remain quiet if they get audited and you don't.  It is a sure bet they won't give you that kind of competitive advantage.

We have two powerful weapons with which to defend ourselves - KNOWLEDGE and COOPERATION.  We must educate ourselves about the law and we must work together as an industry.  

Take a single piece of paper and tear it in two.  Easily done.  The paper yields to your strength.  Now take a ream of paper and tear it in two.  Try as you might, you will not be able to tear the ream of paper.  

Comments (2)
Robin Mullins January 24th, 2010 11:52:00 AM

In my last post I proposed the following thought experiment:  "Suppose the changes take place and service via e-mail is considered just as valid as in person service.  What happens then?"  There are several possibilities.  The outcome would depend, in large part, on exactly how the new rules are put into effect.  I'll try to dream up 2 or 3 scenarios, perhaps one of you will be able to suggest some others.  For the moment, at least, we're only talking about initiating documents, such as the summons and complaint or those of a similar nature whose purpose is to initiate an action.

The Wild West Scenario.  Suppose the rules were changed to allow service to be effective by simply sending an e-mail containing the summons and complaint to the defendant's "e-mail address of record."  The e-mail can be sent by the attorney or the plaintiff if he is acting pro se.  An address of record would be any e-mail address shown to be used by the defendant.  This address might be supplied by the defendant when he signs a contract or otherwise publishes it or lists the address in the public domain or in any way uses the address for correspondence.  Such an address might be found on a person's (either real or in law such as a corporation) website or social networking page.  It might be found during the course of e-mail exchanges between the parties or discovered through some sort of private investigation or through an examination of some type of public record.  

In any event, the bottom line in this alternate universe is there would be very few process servers because their services simply would not be needed - for the most part.  I suspect those few remaining diehards could demand a premium payment for their services in serving those few individuals who are such Luddites that they don't have e-mail addresses at all.

This is science fiction and I don't see it happening within my lifetime (I'm almost 57, be kind and give me another 20 or 30 years).

The Not So Quite Wild West Scenario.  In this alternate universe the rules are changed such that the e-mail must be sent by a disinterested 3rd party (process server) using very specific software which would keep a complete and accurate record of everything relating to the service e-mail.  For instance, it would record each of the Internet servers through which the e-mail passes on its way to the defendant.  It would record the time of arrival on the defendant's computer along with the time the e-mail was opened and how long it was open.  The e-mail would be structured in such a way that no spam filter could block it and it could not be deleted until it was opened.  The process server's software would be subject to some specific requirements, such as being unhackable, etc.

I think there is a reasonable likelihood this scenario, or some variation of it, could become a reality at some point in the not too distant future.  A number of technological advances will need to occur as well as some social and legal changes.  If it does come to pass then, once again, I see the number of process servers across the nation being reduced dramatically.

Also, I wonder who will be the disinterested 3rd party.  Will it be a process server?  Some kind of private business?  Or will it be the court itself or some combination of the court and someone else?  Will there be any need to involve anyone outside that formal legal system itself?

The Most Likely Scenario.  E-Service has a place in our future, I don't doubt that at all.  Some participants are betting it will be a big part and are pursuing business models based on that possibility.  But I'm not so sure, at least not for the near to mid future.  I think this because the legal system is cautious and traditional.  There are still a lot of technological issues to resolve.  But there are also a number of legal and social issues which must be addressed.  We will see (as we already have) the courts allow the use of e-service as an alternative method of service but not as a primary method.  For instance, here in Washington service via snail mail has been allowed for many years but only under certain restricted circumstances.  Anyone wanting to use snail mail service is required to obtain a court order allowing its use and must convince the court substantial efforts have been made, without success, to serve the defendant using personal service or one of its variations.  

So I am not afraid of e-service.  I am not concerned it is going to put me out of business tomorrow or even 10 years from now.  I intend on watching its evolution and will make every effort to be prepared to fill my client's needs as they morph due to legal, social, and technological changes.  I will also attempt to influence those changes as they occur.

Conclusion.  Jeff Karotkin has been writing about change for some time.  I'm sure he and I disagree on certain specifics regarding e-service but our areas of agreement are far greater.  He is correct in arguing we must be prepared to change as the world of process serving changes around us.  To do otherwise is to have our head stuck in the sand.

Finally, in my opinion, we must not give e-service a boost by showing ourselves as dishonest or incompetent.  Forgery and sewer service must stop and those who perpetuate it must be brought to justice.

Comments (0)
Robin Mullins January 4th, 2010 09:44:22 PM

In my last post I compared e-service to snail mail service.  I also gave a definition of service of process - "The delivery of a writ, summons, or other legal papers to the person or entity required to respond to them."  In many states, over many years, process servers have fought legislation intended to allow the use of snail mail in any of its various forms.  We have been successful because we've consistently been able to establish that snail mail is not as reliable as service performed by a process server.  A survey conducted by WSPSA found a bad address rate for certified snail mail in the neighborhood of 35%.  And yet the courts consistently allowed judgments against people even when there was no signature on the green receipt card.

The question to ask now is, "How reliable is e-service compared to normal service?"  At this point I don't know of a way in which this can be reliably tested.  With the snail mail comparison we could actually go into the courts, pull files, and accumulate data.  But since there are no courts allowing e-service at this time there are no files to pull.  If anyone knows of such a court I would be very interested in hearing from you because a study of their files would be most interesting to perform.

To the best of my knowledge, e-service is currently being allowed only in those circumstances which would otherwise allow for use of an alternative form of service, such as publication or mailing.  The requirements, mainly in terms of diligence, for alternative service tend to be rather strict in Washington.  Or, to put it another way, if you want an alternative means service overturned then shortcut the diligence aspect of it.  Therefore I have no great concern with e-service - so long as it remains an alternative form of service.

But suppose that changes.  Jeff Karotkin has pointed out in his blog that some website's Terms of Use are including language which allows the owner of the website to serve its users via e-mail.  And how many of us actually read the ToU's?  I sure don't.  Which means many of us have probably agreed to such language when we've registered as users of some websites.  Now whether or not the actual use of that language will hold up in court is a good question.  It might or it might not but it wouldn't take much of a change in a statute or court rule to allow it allow it to be upheld in the courts.

Again, suppose the changes take place and service via e-mail is considered just as valid as in person service.  What happens then?  In my next post I'll look into my crystal ball and attempt to answer that question.

Comments (3)
Robin Mullins December 25th, 2009 04:45:53 PM

How many of you have been following the advance of technology in the legal field and, specifically, process serving?  Certainly nearly all of us use computers to generate our proofs, exchange e-mails, and maybe even do our accounting.  Fewer of us have interactive websites, scan documents for transmission to affiliates, or generate electronic documents that never see a piece of paper until the receiver prints them (if they are ever printed at all).  And even fewer of us think about the implications for the industry as a whole.  So I ask you to take a moment and think about this question, "Where is the ever expanding world of technology taking us?"

I've ruminated on this topic for quite some time and had long talks (and e-mail exchanges) with other process servers around the country.  And like any other attempt to predict the future such musings are subject to many variables and any conclusions are far more likely to be wrong than right.  So let's take a look at one factor that might affect the entire industry and that is e-service.

There has been a lot written lately about e-service but I think very few of us are really taking it seriously.  In fact, I would go so far as to say many of us have our heads stuck in the sand or, even worse, simply don't care whether e-service happens or not.  In part this may be because we don't understand how, in theory, e-service is supposed to work.  

In my mind there is a great deal of resemblance between e-service and snail mail service.  But, as technology has done in so many other situations, e-service has the potential of being faster, less expensive, and more reliable than snail mail.  And e-service certainly has the potential of being faster and less expensive than regular "person to person" service.  Is e-service more reliable than regular service?  It might well be if we continue to have sewer service episodes such as just came to light in New York and a couple of other areas of the country.  Indeed, we are not immune to this sort of problem as I am familiar (most unfortunately) with the forgery of proofs of service right here in Washington.  

To get a handle on e-service we need to take a step back and ask, "What is service of process?"  And here is a nice succinct answer, "The delivery of a writ, summons, or other legal papers to the person or entity required to respond to them."  Of course the various states have promulgated distinct rules relating to service but they all come down to some form of delivery.  Those added rules, despite their variations, are there to improve the reliability aspect of service.  

In Part 2 of this series I will discuss and compare snail mail service, regular service, and e-service in greater detail.

Comments (1)
Robin Mullins December 22nd, 2009 01:41:16 PM

There have been some rumors floating around regarding the use of IC's in the process serving industry and the Department of Labor & Industries.  The more serious of those rumors have hinted L&I is going to eliminate the use of IC's in the process serving industry and that only employer/employee relationships will be allowed.  Frankly, this didn't seem plausible to me so I decided to go to the source and called Bill Moomau.  Bill is the Supervisor of the Classification Department at L&I.  I've found him to be a gentleman and he genuinely listens to what I and other WSPSA members have had to say.  And, most importantly, he lays it on the line - says what he means and means what he says.  Many WSPSA members may recall Bill as our speaker in Vancouver at our 2009 Annual Conference.

I spoke with Bill on the phone the other day.  The conversation lasted about 15 to 20 minutes.  I asked him point blank if it is L&I's intent to eliminate the use of IC's as process servers.  He said "No."  However, he went on to say that L&I will expect anyone using IC's to satisfy the six tests they use to determine whether a person is an employee or an IC.  I've written about these six tests before and you can read them by clicking here.  If all six of the tests are satisfied then, and only then, can the person doing the work be considered an IC.  If even a single test is failed then the person is an employee.

An interesting aspect of the entire L&I program is that it exists as much to protect the employer as it does the employee.  In fact, it was seen as a great boon to business when it was instituted.  You see, employers had a problem before L&I was created.  The problem was that when an employee was injured on the job the employee would sue the employer.  If the employee won then the employer was directly responsible for the damages suffered by the employee.  Today, the dollar amounts under that old system would be enormous.  Now I'm not saying L&I is a perfect system (it certainly could use some changes) but the alternative is almost unthinkable.

There are some big advantages (and disadvantages) to using IC's.  The "system" allows for their use and will continue to allow their use but you have to follow the rules.  Use the search tool in this blog to locate all the articles I've written on the IC topic.  Search for "independent contractors".  Each article has links to additional information.  Educate yourself on this topic and implement whatever changes are necessary to conduct your business in an ethical and legal manner.  

Comments (0)
Robin Mullins December 17th, 2009 09:30:31 PM

I received my audit results in the mail today and, as expected, I failed.  The failure rate was 19% and the Department of Licensing classifies that as failure.  Now wait a minute.  If I missed 19% that means I got 81% correct.  That's a B- not an F!  They must not grade on a curve.

My office had conducted 43 look-ups during the audit period and only 35 were listed in our logs.  Of those, 5 were shown as "no record found" and they reminded me these also need to be logged.  There were 3 plates which weren't logged at all and they were probably my error as opposed to being a mistake on the part of the other 2 people in my office who have IVIPS access.  Everyone once in a while I find myself forgetting to log a look-up.  (I suffer from AMA syndrome - Advanced Middle Age.)  And, of course, they mentioned we weren't using our sub account numbers properly but hey, I pointed that out to them.

Some of the things they detailed I had already spotted and described in earlier posts on this topic.  Frankly, I wouldn't mind another audit in the near future just to see how effective the changes were.  In speaking with the DoL people I found them to be courteous and attentive.  With luck an on going conversation has begun which will result in a better understanding for everyone involved.

So, overall, it was painless.  We've instituted some new procedures in our office to shore up some of our weak points and now we move on.  

Comments (0)
Robin Mullins December 17th, 2009 09:00:10 PM

The sequence of events over the past 24 hours has been very interesting and productive.  I've learned about some more things my office hasn't been doing quite right on our IVIPS record keeping and had a fascinating conversation with Hannah Fultz of the Department of Licensing.  

It turns out there was an "issue" (she didn't go into details) in the not too distant past where IVIPS information was used inappropriately.  This, in part, triggered the current round of audits and the results are not good.  They're finding a failure rate in excess of 80%.  Needless to say, DoL is taking this very seriously.

I was surprised to learn there are over 8,000 IVIPS users.  This tells me that process servers and PI's are a small fraction of the total.  Hopefully we are an even smaller fraction of the "issues".

In speaking with Ms. Fultz we both concluded a major reason for the current failure rate is a lack of understanding on the part of users as to the requirements in the contract.  I'm generally pretty good about reading and deciphering such things but obviously (since I now know I wasn't doing everything properly) I missed some important aspects of the contract and therefore failed to institute appropriate procedures in my office.  Now that my understanding is better I've instituted multiple procedure changes which address the problems.

Ms. Fultz also mentioned there are some changes being considered for the current contract.  More than anything they need to know the information is being used appropriately.  To do that they need to be able to conduct audits which result in accurate information and in a much lower failure rate.  So, as part of their process, they are going to explore methods of educating users about their responsibilities and record keeping requirements.

I told her that she and I are on exactly the same page.  Speaking for WSPSA (hope that was okay to do Madam President) I assured her the association would cooperate in any way possible to educate our members to improve our audit scores.  I mentioned WALI but explained I couldn't speak for them in the same way that I felt I could for WSPSA.  I urge any WALI member reading this to bring it to the attention of an appropriate person on the WALI Board.  Perhaps WSPSA and WALI can work together on this in some fashion.

IVIPS is an incredible resource.  We need to protect it.  We need to cooperate with DoL and we need to police our own.  My fear is that a loose cannon somewhere will abuse IVIPS and, as a result of their actions, I will lose access.

Comments (0)
Robin Mullins December 9th, 2009 12:28:39 PM

I want to thank everyone who posted comments on this topic.  Especially Robb Woodworth and Jim Cronin.  They've effectively told me what I can expect DoL to say because I wasn't aware we were supposed to be logging every name search.  Our practice has been to log every vehicle record we accessed but if we did a name search, and didn't find any vehicles, we didn't log the name.  Our logging system is tied into our process service database  and I've gone in and made adjustments which will allow us to log every name (including those where no records are found) in addition to every plate.

The requirements for process servers is somewhat simpler than that for investigators.  Jim's detailed explanation of how he documents his searches should help my WALI readers. Robb's kindness in explaining his audit experience should help my WSPSA readers.

I'll follow up on this after I've heard back from DoL.

Comments (2)
Robin Mullins December 8th, 2009 04:20:25 PM

Be careful what you think about, it just might come true.

Just last week I was musing about the fact that I had never been audited by the State of Washington Department of Licensing regarding my IVIPS account.  For those who may not know, it is legal for DoL to disclose motor vehicle information to process servers (and others) but you have to sign a contract which includes an audit provision.  This is a fantastic resource when trying to trace someone in order to serve papers on him or her.

Well today I received a certified mailing from the DoL Public Disclosure/Contract Unit.  It notified me I was being audited for the time period from November 16th to November 19th.  It took me about an hour or so to pull the information together, prepare a response letter, and put it all in a certified mailing going back to them.

We use a tracking system which doesn't look exactly like the forms supplied with the IVIPS contract but the results are the same.  The contract allows for this so we should be OK on that part of it.  There are three of us in the office with IVIPS access and sometimes things can get pretty hectic around here.  So my only fear is that, somewhere along the way, one of us (most likely me) forgot to make an entry in the tracking system.  That, of course, will raise red flags at DoL.  They'll ask questions but I'm confident we'll be able to answer them to their satisfaction.

Over the years I've become quite anal about record keeping.  We're keeping more than ever before (thanks to computerization) and I'm always harping on staff to get everything in writing.  Today it paid off because it made the audit simple and straight forward.

I'll post on this topic again after I've received the results from DoL.  I think I'll still have my IVIPS access but you never can tell for sure until it is over.

Comments (7)
Robin Mullins December 8th, 2009 12:24:47 PM

My good friend Eric Vennes works at Insurance-Tek.  He was kind enough to write this brief comparison of "claims made" style insurance and "occurrence" style insurance.  His e-mail also said this:

"I would ask that if you do make edits however, that I see them prior to posting on the site to confirm accuracy. Claims-Made vs Occurrence forms is, in my opinion, one of the most confusing issues to verbalize. In my seminars, I actually use illustrations."

Not to worry Eric, I didn't make any changes to the text, just some formatting changes so your material will appear on the web better.

I'll just mention that I've had both claims made and occurrence insurance policies.  Currently I'm carrying an occurrence policy.  Its been years since I last carried a claims made policy and I hope to never carry one again.

Oh, and one other thing, the idea for this post came from Jim Cronin.  He's a WALI member who is based in the Mukilteo area.  Jim has some very nasty habits.  You see (and don't tell anyone I mentioned this) he tends to ask very good questions and he likes to share useful information with the people around him.  ;-)

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Claims-Made Form v/s Occurrence Form

• Claims Made CG0002
  • Claim reporting is time restricted to the active policy, deductible and terms
  • Claim or knowledge of claim must be reported within the retro-date and the expiration date of the policy.
  • When your policy expires, you must purchase a “tail” to extend the time a claim can be reported.
    • Cost can be 150% to 300% of the expiring premium depending on term purchased. Note most policies will have a limited extended reporting period of 60 days after expiration. Some programs will extend reporting period from 12-24 months after expiration if you retire and have set number of years with same carrier.
  • The policy that expired can be tossed when the renewal takes it place.
  • If policy is not renewed, it can be tossed once the “reporting period” expires.
  • The premium paid means nothing once the reporting period expires.
  • Subject to new terms, deductible, restrictions and exclusions.
  • Easy to get into and expensive to get out of!
• Occurrence Form  CG0001
  • Claim reporting is subject to “reasonable time”
    • Note: some states restrict the time to file a suit like New York. If suit is filed after 12 months of the date of event, the State will not uphold the suit; therefore, your insurance company may defend, but normally to release you from the suit for above conditions.
  • Each occurrence term purchased is kept, as the date of event will apply to the appropriate policy period for the date of loss or event.
  • Policy expires … you do not need to purchase a tail. You can purchase discontinued operations coverage to protect if a date of event occurs after you close your doors. This is rare and it is more likely seen in the construction field.
  • A policy that expires is kept within your insurance records according to your state filing statues.
  • The premium paid means you have the prior terms to present claims against.
  • Each policy’s coverage is subject to its terms, deductible, restrictions and exclusions.
  • Most occurrence polices will not offer “nose” coverage to gap the “prior acts” or to keep your retro-date intact.
    • Some programs will offer “prior acts” coverage or “conversion endorsements” at a price, but typically less than the cost for the “tail” coverage of a “Claims-Made” policy form. Ask your Broker when moving out of Claims-Made and into an Occurrence form.

Comments (0)
Robin Mullins November 21st, 2009 09:09:10 PM

Why use a contract?  I've been in the business for over 30 years.  I don't need no stinking contract!

Or do I?  And if I did what would it look like?  Would it put people off?  Would I lose accounts?  I have so many clients would one contract fit them all?  

This is an odd thing about the process serving business.  Like Insurance-Tek says, other professionals always use contracts.  And yet process serving is devoid of them.  Perhaps the reason lies in history somewhere.  If anyone knows, or at least has an idea, please make a comment here.  

I'm giving considerable thought to this question.  Trying to figure out how to implement it.  If I come up with a solution I'll write about it here.

This is an area which hesitation is found. Some feel using a contract will be an intrusion, inconvenience or cause them not obtain the account. A contract is simple; “an agreement or understanding between two or more entities to perform services.” It is also required in most insurance policies and not being in place could decreased limits of coverage or have a high premium penalty in place.

A contract may not hold up in court or stop a law suit, but the steps were taken to be pro-active. In working with other professionals (Attorney’s, Insurance Company’s etc), you will find a contract is always involved. Your business should have the same standards.

It is always recommended an attorney should review a contract given to you before signing.
1.        Scope of work to be performed.
2.        Payment for the work to be performed.
3.        Don’t guarantee what you cannot uphold. Unable to obtain surveillance footage for what the client is paying for, unable to perform work on a time or at a scheduled time. Nothing is black and white as options vary between people.
4.        Hold harmless in your favor for the issues outside your control. If you did your work properly, why are you left holding the bag for someone else’s problems?
5.        Avoid the he said she said. Document, document and document.
6.        State additional personnel may be hired to ensure the work can be performed.

Other items to keep in mind
1.        Have a disclosure on your reports. It might be a hold harmless for the evidence found or not found.
2.        Ensure the person signing the report has legal and company authorization to sign the report.
3.        Ensure items which may be held are secured as most policy will exclude Care, Custody and Control.

Comments (0)
Robin Mullins November 16th, 2009 04:33:53 PM

The wide spread use of sub-contractors, also known as independent contractors or IC's, in the process serving industry has been a rather hot topic for some time.  And, based on some things that have been happening here in Washington, it is likely to become even hotter over the next several months.

At one time or another just about all of us will use an IC.  Larger companies use them extensively but even the smallest of companies will use them when there is a bit too much work to do or when a service needs to be done in an area not in the company's normal coverage area.  So, in effect, there are two types of IC's, local and remote.  For more information on IC's you should have a look at my posts covering this topic.  Use the search tool at the top of the page and search for "IC" to find them.

Some, but by no means all, companies require their local IC's to sign a contract.  This is good business practice and can protect both the company and the IC.  But no one that I know of asks their remote IC's to sign a contract.  For instance, my company is based in Bellingham.  When we need something served in Spokane we forward it to a company in that area (that company is a remote IC to me).  In turn, that company is likely to assign the job to a local IC.  They might even have a contract with the IC.  Yet, until recently, I would never have considered asking the company in Spokane to sign an agreement with me.  Indeed, just sending the assignment to the remote IC, with little or no knowledge of who they are, is standard practice in our industry.

The entire process gets a bit complex.  My client gives me the service assignment (no contract), I send it to the company in Spokane (no contract), and they assign it to a local IC (maybe a contract but I don't know and my client doesn't know).  From a liability point of view, the entire chain of players is potentially liable if something goes wrong.  With nothing in writing as to who is responsible for what.  

So I found this entry on Insurance-Tek's website rather interesting.  And remember, this applies to both local IC's and remote IC's.

Hiring a sub-contractor is common as it keeps the bottom line expense down. A temporary increase in business or a short term job may require additional personnel.  Keeping in mind, the sub-contractor is still an extension of the business and will reflect on the company’s performance.  A client is not aware a sub-contractor was hired just that the work is being done.  Hence the law suit in your company name for damages the sub-contractor may have caused.

1) Know the background and work ethics of the sub-contractor.

2) Have a contract with a hold harmless in place with between your company and the sub-contractor.

3) Obtain verification of insurance from the sub-contractor naming your business as an additional insured.

4) Know what exclusions are in the sub-contractors policy before they perform work.  If a type of operation is excluded, there may be no coverage on your company’s behalf.

5) Review and inspect the work completed by the sub-contractor.

6) Use the same sub-contractor(s) and build the relationship with them. Using different sub-contractors can open up an issue with quality of work performed.

7) Prior claims which could decrease the limit of coverage shown on the certificate of coverage.

8) Liens or open law suits which could affect the performance of the sub-contractors work and/or decrease the policy coverage limit.

9) Is the sub-contractor using their auto for business?  You need to ensure verification of their auto limits are shown on the certificate of insurance.  These limits should be no less than $300,000 to ensure your company is protected.  Most professionals will advise these limits should equal the occurrence limit for the liability.

Comments (0)
Robin Mullins November 15th, 2009 11:06:02 AM

Today I was preparing a "re-application" to a search company I've used for years and found it necessary to trouble my E&O insurance agent, Eric Vennes at Insurance-Tek.  So I went to their website to get to see if there was some way to get the proof of insurance I needed without bothering Eric.  There wasn't, and I had to ask for his assistance anyway, but, for the first time, I really took a look at their website.  It turns out they've got some very useful information, in laymen terms, about insurance.  It is the kind of material I've heard Eric and other insurance people describe any number of times.  

I asked Eric if I could use some of the material here to help the rest of us understand such an exceedingly dry topic.  So, with his permission, I'm going to copy and paste here some of what you can find at www.insurance-tek.com.  It will take several posts to present it all but then medicine is often best in small doses.

A bond protects the public, suppliers and taxes liens. If you breach a contract, fail to perform services which you have been paid for, and/or fail to pay an account which services were obtained, the bond could be liened. When the bond company pays out damages, this value must be paid back to the bonding company. Hiring an attorney to defend the suit could cost you over $4,000.00 in costs to you and you still need to repay the bonding company.

An insurance policy has a limit of coverage which will be available for defense and damages. You pay a little and the insurance company pays up to the limit of coverage. This limit is typically $1,000,000 for an occurrence. The damages paid out by the company will not be required to be paid back. You may have a deductible required per the policy conditions and that’s it.

This has got to be one of the most misunderstood concepts.  Even people who should know the difference (based on their position as a judge or attorney) often get these two confused.  I heard this typical confusion when I attended the FTC roundtable hearing in San Francisco.  "Process servers should be bonded" was said more than once.  And yet bonding is usually intended to assure that a job is completed.  What value is that going to be when the service fee is all of $50?  None.  On the other hand, fail to serve a paper by the time a statute of limitations rolls around and a $10,000 bond is next to worthless when the judgment is $100,000 or more.  And that, of course, is where insurance comes in to play.

I'm going to write 2 or 3 more posts about insurance and related topics.  And at least one of those topics could almost turn our industry upside down if it were followed - or required.  So check back here over the next week or so.

By the way, I'm NOT getting a kick back from Eric for plugging Insurance-Tek here.  Though he could buy me a beer sometime.  Just a thought ;-)

Comments (0)
Robin Mullins November 12th, 2009 09:05:14 PM