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How do I serve a defendant in a lawsuit?

After you file your lawsuit, you have to serve (i.e. give notice to) the opposing party. This is referred to as service of process.

In many cases, service of process is very easy. In other cases, it can get complicated.

In Washington, you can serve a defendant using either personal service or substitute service.

1. Personal Service

Personal service means personally handling copies of the summons and complaint to the opposing party. Usually, this takes place at the defendant's home, but it can be anywhere—outside the home, outside the state, even outside the country.

This is the easiest and definitely the preferred method because it's almost impossible for the defendant to challenge in court. Unless the defendant proves that he has an identical twin, or the judge thinks your process server is a complete liar, you should be easily able to prove that the defendant knows about the lawsuit.

2. Substitute Service

To meet the requirements of substitute service, you have to leave the documents with “some person of suitable age and discretion” who lives with the defendant at the defendant's home or “usual abode.” As the name suggests, the person you serve "substitutes" for the defendant. This rule is found in RCW 4.28.080.

So what does that mean? Basically, this means anyone answering the door who appears old enough and intelligent enough to understand the significance of a lawsuit and is likely to give the documents to the defendant.

Unfortunately, no one is going to answer the door wearing a shirt that says: “Hi, I'm a person of suitable age and discretion. Can I serve your legal documents?” You'll have to make a judgment call.

Who passes the “suitable” person test? Let's walk through some examples.

The defendant's husband? Almost definitely.

The teenager who answers the door? Maybe. He may have enough “discretion” but what if he's just a family friend visiting for the weekend? Then he won't pass the other part of the test.

The nanny who answers the door? Perhaps but unlikely. If she's a live-in nanny, then you may be in good shape. But if she simply works a standard 9-5 job, then you're out of luck.

You serve the defendant's wife at the family vacation home in Lake Chelan? This is hard one. In other words, is this the defendant's “usual abode.” How often do they travel to Lake Chelan? The whole summer? One weekend a year? Every weekend? You may not know this information, so you may need to conduct some further investigation.

As you can probably see, substitute is not ideal, but sometimes it's your only option. My recommendation: if you use substitute service, have your process server (or someone else you choose to serve the documents) to document in writing with as much detail as possible the requirements under the law.

3. What documents do I need to serve on the defendant?

You need to serve--at a minimum--a copy of the summons and the complaint. Under CR 4, both documents must be signed---either by you or your attorney.

As the plaintiff, you are also responsible for providing the case schedule to the defendant. Under Washington's court rules, you have to serve the case schedule on the defendant within 10 days after the defendant files an answer.

To simplify the process (and reduce service costs, if you use a process server), you should serve the case schedule together with the summons and complaint.

4. Can I serve the defendant's insurance company?

In many car accident cases, you will probably be dealing with the other driver's insurance company far more than you'll be dealing with the actual driver--processing bills, providing medical records, etc.

You may think, therefore, when it comes to file a lawsuit, that you should just serve the driver's insurance company because the defendant will find out it anyway.

Don't do this. Under Washington law, you must serve the defendant, not the insurance company. The insurance company will not accept service on the insured driver's behalf.

5. What if the defendant lives out of state?

The same procedure applies. Nothing changes.

Unless the defendant is actively avoiding service, you have to use personal service or substitute service. If you know the defendant is now living in Oregon, for example, you have to try to serve the defendant in Oregon. 

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