Tuesday, August 30, 2011

Proof of Service: Affidavit of Service and an Unsworn Declaration, What’s the difference?

According to Merriam—Webster’s Dictionary of Law, a Proof of Service is a statement submitted (as by a process server) to the court as evidence of successful service of process to a party. It details the time, date, manner of service, identity of the person served and who served the legal documents. (see What is a Proof of Service) Each state may be different as to which POS is acceptable or required by their state, federal, and local laws. However, on occasion, law firms and professional process servers will mistakenly use the general term “Proof of Service” without realizing there are different types of proofs of service.

The most common is an Affidavit of Service. This is a POS signed and sworn on Oath, by the server, in front of a notary public for a fee. It is intended to certify the service of a notice, process, summons, or writ.

The other common POS is an Unsworn Declaration. This POS is signed by the process server under penalty of perjury a recitation of the facts and circumstances under certain conditions a legal document was served in a manner prescribed by law.

Although, these two proofs of service are similar, by accomplishing the purpose of informing the court that a party or witness was delivered process in a particular case. They are different in the wording used within the declarations themselves and the procedure required by law that validates the proofs of service as being proper.

This information is provided as a guide only and should not be relied upon as legal advice. Also, the law addressed in this guide may change based on different courts’ interpretations of it. Whenever anyone has an actual legal problem it is best to contact a lawyer to determine which laws may apply to that specific situation at that time.

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