Service with a Smile.

Stop me if you’ve heard this one: “Guy walks into a bar. The next time, he ducked.” This punch line is one you don’t see coming. It bucks the traditional structure of the classic “Guy walks into a bar . . .” joke.

We depend on structure; we want things to be done a certain way. It ruffles our feathers when something takes us by surprise. The legal world is no different. Aside from the many statutes and cases that build the substantive parts of the law, there are also procedures: rules that help judges, lawyers, and even real people, know what’s coming around the corner and remind us to duck.

One such area we depend on is service of process. If I am involved in any sort of civil claim or lawsuit, and I don’t know that I’m involved, that’s a problem. Specifically, it’s a problem with the Due Process Clause of the 5th and 14th Amendments. Each state has rules on how somebody is “served” with notice of a lawsuit or legal proceeding. Indiana’s are found in Trial Rules 4 through 4.17. In general, I should be served with papers that identify me as a party to the case and tell me I have a certain amount of time to respond (i.e., a “Summons”); plus a copy of whatever document the other party filed to start the case (typically a “Complaint”).

Urban Myth #27: If my credit card company can’t find me they can’t sue me.

Wrong. Your credit card company, or anybody else who wants to sue you, doesn’t have to physically place documents in your hand and proclaim the magic words “You’ve been served.” While some people are served in this dramatic Hollywood fashion, private process services can be expensive and in Indiana this just isn’t how most lawsuits start. Also, Trial Rule 4.16 says that anyone who refuses service cannot challenge service. So, if you try to dodge service, you’re served. So much for playing hide-and-seek with lawsuits.

As an individual, I can get served the Summons and Complaint one of four ways:

1. By somebody handing me a copy personally.
2. By sending me a copy by certified mail, with a return receipt to prove I received it.
3. By leaving a copy in my door and sending a copy regular mail; or
4. By publication in a local newspaper.Your response might be: “What if I don’t get the newspaper? I don’t read those notices! I’m too busy reading my unsigned letter to the editor and that crazy Beetle Bailey! That dude has been in the army for like sixty years. Doesn’t he get a pension or something?”

Well, you have a point. About service by newspaper, not comic strip character retirement plans. Service by publication is supposed to be a last resort, used only if the person “cannot be served personally, cannot be found, has concealed her whereabouts, or has left the state.” In re Paternity of R.L.W., 643 N.E.2d 367, 369 (Ind. Ct. App. 1994). T.R. 4.5, 4.13. If you want proof that the effectiveness of service by publication is still a hot topic, check out the recent oral arguments in the Indiana Supreme Court over this issue in the case Matter of Adoption of L.D. around minutes 30 to 33. Parties, or lawyers, who publish notice without trying to achieve service of process some better way may be violating important Constitutional protections.

I know that none of us like to hear from telemarketers or receive junk mail. But before you get that unlisted address and number and try to live completely “off the grid” consider what would happen if someone wanted to sue you some day. If they can’t find you through normal means, you may leave them with no choice but to serve you by publication, which you probably won’t actually see. You’ll lose by default and then complain that you didn’t know you were being sued.

This may seem obvious, but it’s much harder to fight a lawsuit after you’ve already lost.

Can You Hear Me Now?

Just because you can record someone in a phone conversation doesn’t mean you should.

With the proliferation of recording devices, both video and audio, I occasionally have a client who asks that I listen to a recording — typically left on voicemail — of the other party being foul or abusive, or even threatening.  The more emotional ones come in family law cases where divorce or custody is an issue.  These are rarely directed at the children in Alec Baldwin-like tirades, but still can be pretty bitter.  Sometimes the question turns to whether the client should record another person’s phone calls: ex-spouse, neighbor, stalker, telemarketer, etc.

But what can we record exactly? Partly, it depends where you are.  I read recently about Anthony Graber, a staff sergeant in the Maryland National Guard might get jail time for recording his traffic stop by a state trooper.  Under wiretapping laws, which vary by state, it can be illegal to record audio of another person’s voice without his knowledge.  Some states require that both parties have knowledge they are being recorded, and others, like Indiana, require only one party to have knowledge.  If Maryland is a two-party consent state, then recording a private conversation without dual consent may violate state law.  However, commentators rightly point out that the weak part of the case will be in construing the conversation between he and the officer as “private.” Should officers have a monopoly on dashboard cameras?  [Insert appropriate Orwellian reference here.]  A cottage industry seems to have grown for civilian recording devices as well.  One wonders whether the charge would have come at all had Graber not posted the video on YouTube. Generally, retaliatory prosecutions are a good way for a prosecutor to lose an election.  An interesting case, but the lesson is to know the laws in your jurisdiction.

In Indiana, it is a C Felony (I.C. 35-33.5-5-5) to intercept an electronic communication without the consent of either party.  If Husband records Wife talking to Husband, then there is no violation in Indiana, because Husband has consented to his own recording.  But if Husband records Wife talking to Boyfriend, who has not consented, a crime may have occurred.  Somewhat counterintuitively, the crime of Invasion of Privacy (I.C. 35-46-1-15.1), deals almost exclusively with the violation of a protective order, also known as a no contact order, and not with recording someone’s voice or image. However, civil lawsuits for the tort of invasion of privacy can encompass wrongly using someone’s image.

There are situations where perhaps recording another person during your conversation is appropriate, particularly to prove stalking, intimidation, harassment, or other personal protection measures.  But just because you can doesn’t mean you should. In 1 Corinthians 6:12, Paul says that “[a]ll things are lawful for me, but not all things are profitable.”  If you want to record another person to demonstrate a crime committed against you, you should contact the police first.  If you want to show that your ex-spouse or neighbor is a bad person, it may make things worse by tearing down any trust that could be built up to improve that relationship.  Ask yourself: if that person recorded you would you have open and honest talks in the future?  But even if your concerns are only with the evidence you can put in front of a judge, you might be disappointed at how ineffective a recording can be.  After all, if you’re already having a dispute in court, the judge usually doesn’t need more proof that the two of you aren’t getting along.  So consider it very carefully, otherwise, recording someone in a phone or other conversation may burn a bridge for nothing.