This document provides tips for attorneys to avoid legal malpractice claims related to failing to properly serve defendants. It recommends identifying service deadlines and reminder dates in your docket system. Provide process servers with documents well before deadlines to allow time for service. Obtain and file proof of service promptly. Never grant extensions if it could allow challenges after limitations expire. Carefully document efforts if using alternative service methods like through the Motor Vehicles Division.

1. DELAY MAY MEAN YOU PAY full of good reasons why you should NEVER wait
until the last minute to provide the papers to your
A common source of legal malpractice claims process server. For example, the process server may
against plaintiffs' attorneys is failure to properly not understand the importance of serving the docu­
serve the defendant. Many of these claims could be ments that day and may leave if the Motor Vehicles
avoided with the help of an effective docket system Division line is too long. If the deadline runs, you
and diligent follow through. may be faced with a legal malpractice claim.
Here are a few simple tips to help you avoid Instead, give your process server adequate time to
becoming a malpractice statistic. achieve service by putting the necessary papers in his
or her hands a week or two before the deadline for
When you're handling a case with time limitation service expires. Communicate clearly. Prepare writ­
deadlines, identify and docket the deadline for the time ten instructions. Follow-up to verify service was
limitation, the date by which service must be made, accomplished. Promptly obtain, review and file proof
and frequent reminder intervals before the ultimate of service on the Motor Vehicles Division with the
deadline. Service must be made within 60 days of fil­ court and do the necessary service by mail to the
ing the complaint. Whenever possible, do not wait defendant at his or her last known address.
until the last minute to file or serve the complaint.
When filing complaints close to the statute of
Provide the summons and complaint to the limitations, NEVER grant the defendant an extension
process server or sheriff with as much lead time as of time in which to appear UNLESS the defendant
possible before the ultimate deadline. Provide an agrees to waive challenges to the sufficiency of ser­
adequate description of the defendant and informa­ vice. Otherwise, if the extension is granted and ser­
tion on his or her whereabouts. Use your calendar vice is successfully challenged after the time limita­
system to remind you to call the sheriff or process tion has run, the plaintiff's claim will be barred.
server to verify that service has been accomplished
and by what method. If personal service has been For additional information on MVD service and
effected, obtain the proof of service, review it and what you need to do for adequate service, see MVD
file it promptly with the court. If substitute service Service: A Hazardous Road, October 1996 In Brief.
was made, do the necessary follow-up by certified or
Beverly Michaelis
registered mail and promptly file the proof of (substi­ Practice Management Advisor
tute) service and service by mail. See ORCP 7D(2)(b), Professional Liability Fund
ORCP 7D(2)(d) and ORCP 7F.
The PLF thanks Pat Rothwell for his assistance in review­
If other means of service have been unsuccessful ing this article.
in an automobile accident case, you can begin the
necessary steps to locate the defendant and build a
case for service through the Motor Vehicles Division.
Calendar follow-up dates at 7 to 10 day intervals
FILES PILEDiHICH.
leading up to your 60 day deadline or statute expira­
tion. Carefully document your efforts to locate the
DNrHE
defendant. If you want to serve through the Motor Call for
free and
Vehicles Division, you must be unable to serve the
confidential
defendant with summons by any method specified in office systems
ORCP 7D(3 ). This means that you attempted service assistance.
of summons by all of the methods specified in ORCP PROFESSIONAL
7D(3 ) and you were unable to complete service. LIABILITY FUND
ORCP 7D(7). It also means that you have taken steps • Carol Wilson
• Dee Crocker
to locate the defendant, as discussed in Mitchem v. • Beverly Michaelis
Rice, 142 Or App 214 adhered to as modified, 143 Or Practice Management
Advisors
App 546 (1996).
639-6911 or
The Professional Liability Fund claim files are 1-800-452-1639
DECEMBER 1996 IN BRIEF Page 5