Due diligence helps to protect every American’s right to due process, protected by the 5th and 14th amendments.
Due diligence is required in service of process, which means a diligent effort must be made to effectively serve the appropriate individual. Attorneys can pursue alternate methods of service, such as mail or e-mail, if the traditional method has failed to result in effectuated service. However, a judge will not approve alternate service unless the attorney can prove due diligence and a good faith effort at service.
Without the due diligence requirement, an attorney could claim they attempted service twice at an address an individual was known to reside at 5 years ago and then mail the service. As part of due diligence, an attorney will likely be required to provide adequate evidence they have attempted to locate an updated address for the individual.
Judges will take into consideration the cost of an extended search as well as they type of case. For example, in a divorce proceeding where the wife has not seen the husband in the past two years the judge will usually require an effort to locate an updated address. Should service fail at the updated address service via publication is usually granted without much argument.
The right to due process guarantees everyone’s right to a fair trial, and due diligence means individuals are being adequately attempted to be notified of any matter they are involved in. This notification provides individuals with the opportunity to take action and be aware of the situation rather than being caught off guard.
Without due diligence, it is entirely possible to see judgments being entered where the defendant has no knowledge or homes being foreclosed on while the homeowners who were renting out to tenants received no proper notification.
Want to know more about process servers’ role in the right to due process? Learn more about National Due Process Day, a whole day devoted to the part process servers play in this very important right.