In most cases, state law determines which method must be used. We’ll look at actual notice first, then constructive notice.
Actual Notice
Actual notice, sometimes called direct notice, is just what it sounds like: the person is aware of the situation either by direct observation or by being told by someone. In many cases, someone actually hands over notice of the lawsuit in person and in written form. Sometimes the defendant—the individual being sued—must sign an acknowledgment that they did indeed receive the notice and that they understand that they are a party in a lawsuit. In many states, this type of notice must be achieved by a third party, typically a sheriff’s officer or a private process server. The plaintiff cannot always personally serve the defendant himself. When a third party is used, they will often sign a statement attesting that they did indeed provide the defendant with notice and when they did so. It’s typically not necessary for the defendant to sign anything in these cases. The third party’s statement can be filed with the court. Actual notice is obviously the best way to deliver this type of information because there’s no dispute that it was achieved. But what if the other party in a lawsuit can’t or won’t be located? In this case, the court might allow you to do the next best thing and give constructive notice.
Constructive Notice
Constructive notice is a legal term that means someone is assumed to have knowledge of an event or transaction by virtue of the fact that it’s in the public record. This principle is based on the premise that someone cannot deny knowledge of a fact because they have a duty to inquire about it. Constructive notice is sometimes called “legal fiction” because the court presumes knowledge that the defendant might not in fact have. For example, if notice of divorce summons is printed in a local newspaper but the spouse who is being sued for divorce has left the state, how would they know about the legal action? The court nonetheless proceeds on the assumption that the person does indeed know. Examples If you purchase property, it’s presumed that you know the legal status of that property because it’s available through public records. A judge will simply say that you should have had a title search done if you later claim that you didn’t know the property had liens against it. That’s constructive notice. The symbol ® provides constructive notice that a trademark or service mark has been registered and that a product or service is not in the public domain. It’s not available for anyone to use or profit from. In some cases, service can be achieved by placing a notice on a door—this is more common in landlord/tenant disputes—or giving the papers to a family member. Both can be considered constructive notice if they’re approved by the court or state law. In business liability cases, such as one where a customer slips and falls on a business property, constructive notice may be given if there is an assumption that the property owner should have been aware of the dangerous conditions. Victims may need to be able to prove that the property owner knew of the dangerous conditions. By Publication One of the most common ways to provide information in a lawsuit is to publicize it; this is often a last-ditch effort. The individual for whom the notice is intended is simply expected to have seen it. Many localities require that businesses filing a d/b/a (doing business as) for a business entity must publicize this status in a local newspaper for a specified period of time. In probate cases, the executor of an estate must usually post a notice in the newspaper that the individual has died, alerting his creditors that they must make a claim to the estate if they want to be paid. Again, the court presumes that anyone who is owed money can—and would want to—keep an eye on these newspaper notices.
