Legal Material

HOW TO PREPARE AND SERVE A INTERNATIONAL SUBPOENA

By: Akanksha A. Panicker

Depositions, testimony, discovery, and production of records and documents are always a core component of due process and the key to a fair and speedy trial. Mostly, all parties, witnesses, and potential evidence can be sourced in a local manner, is available within the same state. However, when a witness needs to be obtained from another country, a foreign subpoena is issued to compel the testimony or to produce the documents.

The Hague Service Convention makes it simpler to serve documents across countries, but subpoenas do not fall within this bracket. Service of subpoenas cannot technically be served in another country, and goes instead through the Hague Evidence Convention, wherein the process is decidedly more precise, and a little more complex.

Why the difference, then? This can be explained by the fact that subpoenas are mandatory compliance within their own jurisdiction, but once they move past that, they turn into a request. The scope of the subpoena then changes from a demand to a request once they’re outside their jurisdiction. Consequently, how subpoenas act under the Hague Evidence Convention actually corresponds to the process that surrounds the service of letters rogatory. In fact, if a country is not a part of the Hague Evidence Convention, then the subpoena is sent through Letter Rogatory like a summons or a complaint.

UNDERSTANDING ALTERNATE METHODS OF INTERNATIONAL PROCESS SERVICE

By: Akanksha A. Panicker

Service of process abroad always means a menu of choices, each of which comes with trade-offs of costs, certainty, and punctuality.   No universal method of service can be achieved in these cases, and research must be done to determine the most efficacious method of service in this particular case. 

In this regard, issues of timing almost always come up in terms of service of process abroad.  Even in domestic cases, timing is the main facet of litigation strategy. Since service of process abroad takes longer than service in the state, the time taken to serve the documents turns determinative in a foreign jurisdiction, particularly where the statute of limitations may expire. 

Even if the statute of limitations isn’t an issue, the speed of the method of service is paramount. Often, process service is the fastest means of executing service, if permitted. This is followed by service through the Hague Service Convention Central Authority and mail service (questionable since this might be more unpredictable as some countries do not permit service by mail, and even if they do, require a return receipt.) Letters rogatory take the longest time and is generally considered to be the slowest method of service. 

UNDERSTANDING SERVICE OF PROCESS ABROAD

By: Akanksha A. Panicker

Service of process is essential for any case to move forward. Untimely or ineffective service of process effectively shuts down a case immediately, and ‘without proper service of process, consent, waiver, or forfeiture, a court may not exercise personal jurisdiction over a named defendant.” 

The provision of legal papers to other parties in a case is known as service, and this commences a case. It must be noted here that while service of papers is usually done in person, service of subsequent papers may be done through First Class Mail (pursuant to judges order or agreement made between parties). Adhering to the rules of service of process essentially gives notice of the existence of the case and effectuates the court’s jurisdiction over a person. 

TYPES OF ORDERS OF PROTECTION AND WHAT EACH ONE DOES

By: Akanksha A. Panicker

As mentioned in the earlier article, an Order of Protection is merely a document issued by the court to limit the harmful or threatening behavior of a person to another. It is used to address safety issues, including domestic violence.

Orders of Protection may be full or limited. This means that an individual can get a temporary Order of Protection, which will be issued on the day of filing for the order by the complainant and lasts till the next court date [although it may be subject to extension] or may get a final Order of Protection. A final Order of Protection is issued upon the conviction of the individual by plea or after a trial and required that the judge find the offense committed

It must be kept in mind that the degrees of protection afforded to an individual will vary across cases. One might be awarded a full Order of Protection, wherein the perpetrator is forced to stay completely away from the individual and their home, or a limited Order of Protection may be given where the subject is allowed to maintain highly restricted contact with the victim.  One can get an Order of Protection from a Family Court, a court that hears criminal cases, and a Supreme Court.

PATERNITY QUESTIONS: HOW TO NAVIGATE LEGAL FATHERHOOD

By: Akanksha A. Panicker

[1.1] EXPLAINING A PATERNITY CASE

It’s easy enough to identify a child’s birth mother, but what about paternity? A child born to parents not married to each other is considered not to have a legal father, unless the biological father signs an ‘Acknowledgement of Paternity.’ This is usually done at the hospital at the time of the child’s birth. 

So, what exactly happens? 

Voluntary Acknowledgment of Paternity (AOP) is a legal process through which paternity, or legal fatherhood, can be established. The father declares himself to be the child’s father, entering an ‘Order of Filiation’ which essentially is a court order declaring legal parenthood. A petition can be filed in Family Court seeking the same. 

Paternity establishment ultimately is just the process of determining the legal father of a child. In New York, unmarried parents can establish paternity by [A.] signing a voluntary Acknowledgment of Paternity form; or [B.]by petitioning a court to determine paternity. The Acknowledgement of Paternity form is available from hospitals, local district child support offices, and local birth registrars.

UNDERSTANDING AN AFFIDAVIT OF SERVICE

By: Akanksha A. Panicker

Service of process essentially occurs when the party to a lawsuit notifies the other party as to the beginning of legal proceedings. This is done when appropriate notice of initial legal action as ordered by a court or a tribunal is sent to the party so that jurisdiction is exercised and the person has to respond to the proceeding before the court. The ‘process’ part of ‘service of process’ refers to the set of documents that is to be delivered, allowing for notice to be furnished.

Different jurisdictions mean different rules for an appropriate service of process. However, a summons and other related documents must be served upon the defendant personally. Sometimes, this might be relaxed, and service may be provided upon another person of suitable age and discretion at the person’s residence or place of business or employment. Service of process through the mail or through procedural rules and court order may be authorized. A prime example of the same is service by publication, done when an individual cannot be located in a particular jurisdiction. It must be understood that proper service of process establishes personal jurisdiction of the court on the individual served. Failure to participate by means that the person is in default, and relief may be granted to the petitioner.  Service of process in cases filed in the United States District Courts is governed by Rule 4 of the Federal Rules of Civil Procedure

Rights Of Private Parties In The Wake Of COVID -19

By: Akanksha A. Panicker

With COVID-19, courts have had to navigate through hitherto uncharted territory. It’s difficult to walk the line between tenant rights and landlord responsibilities, especially considering how hard the pandemic has hit everyone concerned. Consequently, judgements that are issued by court attempting to signal some clarity and change are to be lauded. 

Recent decisions on landlord obligations also bring into question the obligations of tenants. New York landlords must follow specific state rules, such as complying with security deposit limits and the timeline and procedures for ending a tenancy. Failure to comply leads to costly financial difficulties and legal imbroglios. In the article below, pertinent cases relating to the impact of the coronavirus on creating a ‘livable environment’ will be discussed. 

Breaking A Lease In New York

By: Akanksha A. Panicker

COVID-19 has been harsh for everyone concerned. A marked uptick of tenants are unable to pay their fees and the impact is felt on both sides of the landlord-tenant dynamic, with landlords unable to make ends meet without the steady source of rental income. The situation has also seen a lot of tenants attempting to let go of their paid housing and move out to stay with relatives and the like. 

Why not just walk away? Slip out the back? Ghosting your landlord is often a plan?

There are shockingly real consequences for merely walking out on a pre-existing lease. Landlords who have had tenants exit without notice have legal protection under property laws of the state or city they’re in. In this article, we’ll examine the consequences of breaking a lease. 

Understanding A Summons Versus A Subpoena

By: Akanksha A Panicker

It’s always a shock to receive a summons or a subpoena. Providing evidence is an imperative part of any case, however, and you are legally required to respond by the deadline. It’s hard to ensure that each party has had an adequate chance to represent themselves and provide proofs that corroborate their stance. Consequently, both these legal instruments are used as a way to ensure that an individual is brought before the court. The following article will elucidate areas of confusion between a summons or a subpoena and will demarcate the differences between the two. 

 [1.1] What Is A Summons?

A summons essentially provides legal notice to a party about a lawsuit, being the very first form of official communication that lets an individual know that they are being sued. While a summons may sometimes specify a court date, it is not always necessary. 

A summons cannot be ignored, as it is legally binding and essential to ensure due process is followed. However, one will not be held in contempt for ignoring a summons, unlike a subpoena. The direct consequence of ignoring a summons is the issuance of a default judgement in favor of the plaintiff. In the event that the plaintiff themselves do not show, the case is to be dismissed. A summons thus essentially acts as an invitation to participate in the lawsuit. If one does not participate, they have no chance of winning and as a result, lose by default. 

Service of process is how a summons is delivered to the individual, the form and content of which is widely depicted in Rule 4 of the Federal Rules of Civil Procedure. 

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