Fundamentals of Commercial Litigation

Fundamentals of the Service of Process

The initial step of any lawsuit is the filing of the complaint with the court of proper jurisdiction. In order for the matter to proceed for the court then has to have “jurisdiction” over the person/business entity that is the defendant in the case. To achieve this jurisdiction, the plaintiff has to serve the defendant with the complaint. The next paragraphs will be a short primer on the most popular methods of achieving “service of process” as we call it, to attain jurisdiction over the defendant. By no stretch of the imagination is this a complete and comprehensive review of all of the intricacies of service, but it will give you a clearer picture:


  1. As an initial matter please note that in Cook County the initial phase of service of process is with the Cook County Sheriff. In any case filed anywhere in the State of Illinois where a defendant lives in Cook County, the first initial step is to place the summons with the Cook County Sheriff’s Police Department;


  1. Personal Service – service of process directly on the individual that is the defendant in the case is called personal service;


  1. Substitute Service – this is service of process upon an individual 13 years or older who is resident at the premises where the defendant lives is substitute service. Substitute service is trickier, inasmuch as the party serving the paperwork must make sure that the person with whom the documents are left acknowledges that the defendant lives at the address, that the person taking the documents is a resident and that the person taking the documents is at least 13 years old. Once the paperwork is served a copy of these documents must be mailed to the address where the substitute service was completed to the defendant;


  1. Service by Publication – in certain limited circumstances, and with permission of the court, service may be completed by way of publication of notice of court proceedings in an appropriate newspaper which places such legal notices into its paper;


  1. Special Service – is another alternative form of service which is allowed with permission of the court after hearing on a motion. This form of service allows that summons be served by regular mail, certified mail and “posting” of the legal documents upon the door of the residence of the defendant. Posting means that that a special process server (once again appointed by the court) places the documentation on the door of the defendant with an appropriate affidavit of this action being filed with the court;


  1. Corporate Service – in Illinois every business entity (LLP, LP, corporation, LLC, etc.) requires a designated registered agent be appointed and registered when the business entity files its documentation with the Illinois Secretary of State. For corporations proper service on such an entity can be affected upon the registered agent. Another method is to serve a corporate director (president, vice-president, treasurer or secretary) of the business entity.


As we pointed out in paragraph 1, for Cook County it is the county Sheriff that handles the initial efforts at service. Once that is attempted, and fails, it is permissible to file an appropriate motion to use a “special process server.” A special process server is an uninterested party, an adult, who is appointed to attempt service. In Illinois, this usually means a licensed private detective, is appointed to attempt service.


Upon the completion of the service of process the litigation process commences and may proceed forward