How to sue someone in the digital age when you don't know where they live.

In every lawsuit the Plaintiff has the obligation to notify all defendants that they are being sued. When a lawsuit is filed the court issues a summons which must be served (usually with a complaint) on every defendant. Massachusetts and probably all other states prefer that the person be served in hand or at least by leaving documents at their home. What happens if you don't know where they live or work? How do you serve them?

Every state has laws that allow a substitute form of service of documents on a person who can't be located. In Massachusetts, a motion must be filed to serve by an alternate form of service. If nothing else works, the court can order service by publishing in a newspaper. Of course, most people don't read the legal notices in newspapers so service by publication usually results in no notice at all but would be satisfactory to a court. In Massachusetts, the courts prefer that a different form of notification be used. Massachusetts courts now require detailed affidavits explaining how the Plaintiff searched for a Defendant including details of searches on the internet. As one clerk told me internet searches are required unless the Defendant's name is Smith.

A search for a missing Defendant should start with a search for a telephone number. A telephone information request with the telephone company is generally a first step. If this doesn't work, a similar search on the internet using multiple search engines (Google, Bing, etc.) should be made. If the person has a driver's license or professional license then the state data banks may show a current address for the person. All of these search methods may show a residence for a missing Defendant. A lawyer can request confirmation of addresses or forwarding address information from the post office. A non-lawyer probably would need a court order authorizing the post office to provide this information from the post office.

If, after using all of the methods just described, the person still can't be located, then social media should be searched. There are too many social media sites to search them all. At a minimum, Facebook, Linkedin, Instagram, and GooglePlus should be searched. If a social media page is located for the individual then print the contents of the page. A judge may need information that the person currently uses the social media site.

If after all of these methods, the person still can't be found, try to locate a close relative: parent, child, ex-spouse, or sibling. These people may be in contact with the person and may be used for service.

After all methods to research have been used and if you still don't have a work or residential address, then file a motion with the court for alternate service. In Massachusetts, and probably other states, the judge will want to use the best method of service that is calculated to actually reach the Defendant. Service can be made by email, text messaging, messaging through social media, or by relatives. The motion should be accompanied by a detailed affidavit showing all of the internet research and any relevant web pages.

If after all of these steps, the person can't be located, service by publication may be approved by a judge. Service by publication is expensive and usually ineffectual. However, it may be the only method available. Alternate service can be complicated for individuals. A local attorney can guide you through the process and help you locate your defendant.   

Cyberharassment is still harassment

The internet provides new opportunities to commit criminal acts. However, in many instances, laws that were not designed for the internet provide remedies. A recent case illustrating use of a traditional law to punish internet conduct is Commonwealth v. Johnson, 470 Mass. 300 (2014).

In this case, a husband and wife harassed their next door neighbors through a third person. They placed false ads on Craig's list so that potential buyers of goods would bother the family day and night. They filed a false claim of child abuse with the state resulting in an investigation of the family. In addition, threatening emails were sent.

Massachusetts G.L. c. 265, § 43 punishes as a criminal act causing a pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person. The statute does not mention internet, computers, or cyberspace. However, the court found that this statute was sufficient to convict a person who used the internet and computers to harass someone.

Just because computers and the internet became household items after most criminal laws were created doesn't mean that they are not governed by the laws that predated the internet. If you are the victim of harassment you should consult an experience lawyer who can advise you concerning the laws that are available to protect you.

Jury mistrials caused by the Internet

Many people think that jury trials are proceedings in which a jury looks to discover the truth. In practice, jury trials are a search for justice and fairness. Justice does not necessarily mean a search for truth. Justice, in a court setting is search for a conclusion based on a limited amount of information. The process of a trial is designed to control the flow of information to eliminate information that is unreliable, speculative, and unduly prejudicial. Findings by a jury result in justice and not necessarily the truth because the flow of information is limited. The final result is suppose to be fair with due regard to constitutional rights, statutory limitations, and the system of justiceJudges instruct jurors to avoid outside sources of information. They are prohibited from talking to other people about the case and are prohibited from researching the case. Independent research by jurors can result in a mistrial.

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Some jurors ignore instructions and research facts or law on the internet. Internet usage by jurors sitting on a trial is so common that is has a name: “mistrial by Google.” Research on the internet has become second nature to many people. It is also considered a private matter. Since nobody will search a juror's smart phone or tablet, jurors feel that they are free to research the case. They can look up the lawyers, the parties, news articles, legal concepts, geographic facts, and other matters. Using Wikipedia, jurors can learn legal definitions and history. With Google Maps, they can look at the scene of a crime.

A rule that prohibits jurors from using the internet is doomed to fail. No matter what instructions a judge gives, some jurors will use their computers to research on the internet. Perhaps the courts should encourage some internet use and allow the judge and lawyers to review the material found and work with the information. The judge can instruct that the Wikipedia definition of a legal concept is not the definition in the jurisdiction. This would allow the judge to explain the difference instead of jurors relying on bad law. It is better for lawyers to address incorrect statements in news articles instead of jurors relying on facts created by a reporter.

The Internet has changed many institutions in society. It is time for jury trials to recognize the influence of the Internet and adapt to this technology.

Can you get a Massachusetts Divorce on-line or over the internet?

Massachusetts does not allow on-line or internet divorces. Marriages are created by the granting of a license by the state and can only be terminated by state action. In divorces, the state is represented by a Judge of the Probate and Family Court who must hear evidence and make findings before granting a divorce. The judge must find that the terms of the divorce are fair and equitable. Even if the parties have an agreement or a settlement, they must still appear before a judge and present evidence. A Judge must find that any children are protected in the settlement. Children are viewed as incompetent and courts have the duty to protect incompetents.

Any person who represents that a divorce can be obtained over the internet is committing a crime in Massachusetts and, if convicted, can be punished by inprisonment. Masschusetts General Laws c. 208, § 44 punishes any person who claims to grant a divorce other than a Judge. Masschusetts General Laws c. 208, § 42 punishes any person who procures or assists someone in obtaining a false or counterfeit divorce.  Only attorneys can assist people to obtain divorces.  If you live in Massachusetts and want to get divorced consult an experienced divorce attorney.