|
|
Join us each Tuesday as Bob Ingersoll analyzes how the law
is portrayed in comics then explains how it would really work.
Current Installment >>
Installment Archives |
About Bob |
General Forum
THE LAW IS A ASS for 08/21/2001
DOCKET ENTRY
"The Law is a Ass" Installment #102
Originally written as installment # 98 and published in Comics Buyer's Guide issue # 688, January 23, 1987 issue
Sometimes you just have to take the bull by the horns and face the situation. Several comic book stories featured scenes in which various super-heroes were served with notice that they had to appear in court for something. Several comic book stories got how service had to be perfected wrong.
Repeatedly.
So I wrote this one to outline how service works. What it requires and what it doesn't. I had always hoped that some comic book creators would thank me for the information and with a big smile on their faces.
After all, everyone likes to get service with a smile.
******
"The Law is a Ass"
Installment #102
by
Bob Ingersoll
Let's talk about notice. Okay, I know we can't really talk. After all I'm writing this in South Euclid, Ohio on December 24, 1986 (CBG columnists recognize no holiday. How could we? Don and Maggie never give us any, so we don't know what they look.) and you're reading it Baal only knows where sometime in 1987. So, I'll write about and you read about notice.
Why? Because recent comics-- most particularly Batman Annual # 10 (Hugo Strange bought out Bruce Wayne's assets at a sheriff's sale; and Bruce knew nothing about it, until someone told him he couldn't go home, because he didn't own Wayne Manor anymore) and X Factor # 14 (a hospital had Angel declared incompetent so they could amputate his wings; and Angel had to learn about it from the Six O'clock News.)-- have shown either an abysmal disregard for or an intentional ignoring of the legal requirement of notice. Well, I, for one, want it to stop.
In the law, notice is the requirement that you advise the other side of your intention to pursue some legal remedy against him. Note the italics in that last sentence? Notice isn't an option one can choose to forego like an extended warranty on a car (What, you're telling me that without this, my new car will fall apart in thirty-seven months? Notice is a requirement, because a fair warning. It says, "I want to do something in court that will affect your interests. I'm telling you what I want to do, so that you will have a chance to defend yourself."
Notice is required under the Constitution. Yes, I know that nothing in the Constitution actually says, "Thou shalt give notice," but it's there between the lines.
The Constitution forbids the states from depriving anyone of life, liberty, or property without due process of law. As all courts are units of the states, courts cannot enforce orders against persons which would affect their life, liberty, or property (and I defy you to name a court order that wouldn't affect at least one of those for someone), unless said orders comport with due process of law. Our legal system posits that notice is an essential component of due process.
Why?
Because we're a civilized society, that's why. We believe in principles of fair play. We don't believe it's sporting to sandbag someone by going into court and doing something against them behind their backs. At least in theory, we don't.
How is notice accomplished? I'm glad you asked that question--the answer's good for another page or so of manuscript, and I've got Christmas bills out the nose. There are basically four types of service of notice, also called service of process, that the law recognizes. They are, in order of preference, personal service, service by mail, service by publication, and a fourth type which I call "John Doe Service". Here's how they work.
Personal service is exactly what it's name implies, someone is given a copy of the notice in person. You just walk up and hand your opponent notice of a pending legal action. Of course, you don't have to serve your opponent yourself. You can hire a process server to do it for you. In fact, it's probably advisable that you do. If you serve your opponent yourself, he's liable to punch you in the nose, when he finds out what you're doing. Then you can sue him for assault, but you'd have to serve him with a new notice. And, of course, he'll break your arm. So, you'll sue him again and have to serve him again, and he'll break your...
You get the idea. Without a process server, you'll never get out of court. Or the hospital.
Personal service doesn't require that the other party himself be served. Personal service recognizes substitutes service. Suppose, for example, you go to your opponent's house to serve him, but he's not home. Do you have to come back? Not necessarily. If someone else is there--someone who the court would recognize as responsible--you can serve that person, and rely on that person's perfecting service on your party opponent.
Note that I said someone responsible person. The court won't allow you to give service on a child, who won't understand the significance the notice and will take his Crayolas to it. Nor will the law allow you to perfect service on someone who doesn't like your opponent's, so won't pass on the notice to create problems. The law requires that substituted service be on someone you can reasonably expect will pass the notice on to its intended party.
Service by mail is a variant of personal service. It requires that you mail a letter to your opponent at his last known address. The law won't let your opponent avoid service by not opening his door to see you, so provides for service by mail. However, the law also won't let your opponent avoid service by not opening his mail; the law presumes that he will open his mail and receive the service. The law doesn't even care if he opens his mail or not. It presumes he did. So, if you ever receive a letter, you think is a service of process, open it and make sure. Not opening it will only hurt yourself.
If you're going to use service by mail, it is advisable to send the letter by registered, certified mail, or any other form of mail which has a return receipt. That return receipt is your proof that the letter was delivered and service perfected.
Service by publication is for those situations when you can't find your opponent, or you don't know his name and address. It requires that you publish your intent to pursue legal redress in some reputable and public publication, where your opponent is likely to see the notice (so bathroom walls don't count). Service by publication prevents someone from avoiding process by skipping town without leaving a forwarding address. So it is useful, even if it isn't preferred.
Why isn't service by publication preferred; even though most papers have a service by publication section especially for the purpose? You'd know if you ever saw the service section. It has lots of notices crammed into a page with real small print. It's hard to read. So hard, in fact, that most people don't bother reading it. Which is why service by publication isn't preferred. An opponent might not realize he is being sued and never read the service of process section. In that case, he would never know that he was being sued, until it was too late. Because service by publication isn't preferred, the law will not recognize it as being valid, if some form of personal service or service by mail is possible.
"John Doe Service" works like this. Let's pretend that the Daily Bugle delivery truck backed over your prize azaleas. You want to sue Sears and the driver. Unfortunately, you don't know who the driver was. What you do is sue the Bugle; J. Jonah Jameson, Owner and Publisher; and "John Doe, a driver". The law will allow the "John Doe" against the driver to start a suit. But the law also requires that you substitute his real name within a year, or else your suit against him will be dismissed.
How do you find out his name? You're already suing JJJ and the Bugle. (You did remembered to serve them, didn't you? I'd hate to think I've been wasting all my time here.) Just ask them who the driver was during pretrial discovery. They'll look in their records, find out the driver's name, and tell you. Then you can substitute the driver's name. Just make sure you do it within a year.
So remember, you can't cut off Angel's wings without first telling him you want to and giving him a chance to say, "I'd rather you didn't." That's the notice requirement of the Constitution.
Comic book writers, please don't ignore notice in the future. If you do, the lawyers of America will have to sue you for organizational libel. (There, do you think that was enough notice?)
******
BOB INGERSOLL, lawyer, comic fan, and CBG legal columnist, is happy to announce that it's now 6:50 p.m. and I'm finished with this column. I guess I get to have Christmas, after all, Don & Maggie.
What do you mean the revisions on the last column are overdue?
Bob Ingersoll
<< 08/14/2001 | 08/21/2001 | 08/28/2001 >>
Discuss this installment with me in World Famous Comics' General Forum.
Recent Installments:
Current Installment >>
Installment Archives |
About Bob |
General Forum
|
|
|
Anything Goes Trivia
Last Kiss
