New Orleans, Louisiana— I’ve written previously about my insistence that lawyers should outsource their international work.  I’ve also modified my thinking a bit, at least as far as nomenclature of the idea, opting instead to call it subcontracting.  At ClioCon this morning, Clio’s CEO, Jack Newton, offered a brief synopsis of his company’s 2017 Legal Trends Report.  A frightening set of statistics jumped off the screen as he went through his slide deck, and they really bring into focus my insistence about subcontracting.

Imagine a lawyer puts in an eight-hour day (just imagine it’s only eight, would ye?).  Of those eight hours, only 2.3 are spent on actual legal work.  The remainder is tied up in building business (critical, no doubt), non-billable learning (read: research the client won’t pay for) or administrative tasks.  And of the 2.3, only 1.6 actually results in dollars going into the firm’s operating account.  Twenty percent.

So how do we, Jack asked, turn those other six hours or so into dollars?  Any which way you can– especially if technology can streamline what we do.

That got me thinking more about the argument for subcontracting out work that isn’t profitable for a firm.  It reminded me of the Big Firm Partner who was incredulous that his firm would dare to look outside for help.  On anything.  Well, if Jack’s statistics are to be believed, Mr. Incredulous now has simple math to guide him.  If you’re only getting paid for twenty percent of your work, you’ve got to rethink things, man.  Really.

Law firms are under tremendous budgetary pressure, and only those who take advantage of every possible efficiency will survive the tsunami that’s been battering our little guild for going on a decade.

Canal Street, New Orleans

Peggy and I are in New Orleans this week for the Clio Cloud Conference (ClioCon, for short), in the hope of picking up some knowledge about the massive changes underway in the legal tech industry.  To be sure, mine is a very odd practice, and would not exist but for the wide range of technological marvels that we couldn’t even dream of just a few years ago.  It’s an exciting time to be a lawyer, frankly.

Yeah, it’s a bear for new graduates to find jobs in the traditional sector– I’m only five years out myself, and the white shoe firms in Kansas City didn’t even give me a first look, much less a second– but the traditional way of doing things is going away.  It’s a slow process, and a painful one, but this industry is undergoing a metamorphosis.  The caterpillar isn’t dying.  It’s merely in a chrysalis, and the butterfly is soon to emerge.  Like any industry, ours is being disrupted by technology, and that has the buggy-whip manufacturers justifiably terrified.  But for every buggy-whip maker who lost his job at the beginning of the last century, several autoworkers built careers.  I see the same thing happening in the law.  And I’m at ClioCon this week specifically to get a better handle on how that will come about.

In my own field– cross-border civil procedure– I predict a couple of things:

  • Central Authorities will, in the next five years, begin to accept electronic submissions of Hague Service requests.  Now, on its face, this seems like not much of a stretch.  But the rest of the world has yet to embrace technological enhancements to legal procedure.  Heck, there are still state courts in the U.S. that require all pleadings on paper.  Eventually, though, I envision Hague authorities allowing submission of requests at the click of a mouse.
  • Service of process by electronic means will become more and more acceptable to U.S. courts in the coming few years.  This is only logical– federal courts (with the exception of immigration courts, if you can believe it) are completely equipped for e-filing.  And that ridiculous and arcane legal fiction called publication becomes harder to justify every day.  The Mullane standard is simple enough that it makes service by email (or Facebook or LinkedIn or… insert a medium here) a practical necessity, rather than a novelty.  Before too long, some countries around the world will begin to accept it as a part of Hague Service Convention methodology.

Sooner or later, all-things-Hague will be able– at least in some countries– to be accomplished with the click of a mouse.  No muss, no fuss. I look forward to being a part of that development, and I hope to glean enough understanding of current trends at ClioCon to take full advantage of new stuff in the legal tech industry.

Stay tuned for more.


They tell me that if I tag #ClioCloud9 in my posts, the guys at LexBlog will buy me a beer.  I don’t know if that’s true, but my favorite local brew is Big Easy IPA.

REUTERS/Yuya Shino

Another tech titan is getting into linguistics services.  The same guys who’re jumping into the grocery biz to dethrone Walmart are launching a new foray into the machine translation (MT) game to dethrone Google Translate.  You guessed it: Amazon, according to a CNBC report earlier this summer, hopes to  take on the fellows in Mountain View with a tricked out version of the Safaba platform, which it acquired two years ago.

To which I offer a very loud and emphatic… big deal.  It still doesn’t mean MT is a good idea in legal pleadings.

[Fellow lawyers, bear with me.  We’ll get to you soon, I promise.]

I’m sure the Bezosians are totally stoked about their soon-to-be launched product offering.  If it’s like most of the other Amazon stuff I subscribe to (Prime, anyone?), it will be awfully handy.*  If Amazon’s translator works as well as everybody expects from a Jeff “Midas” Bezos creation, I’ll probably use it just as much as I use Google Translate– which is to say, quite a bit.  My usage, though, will be for finding specific words, a thesaurus of sorts, and French accent marks that I can’t remember how to “hot key”.  Often, I’ll use it to get the gist of something in a language I don’t speak, but never to gain a complete translation.

The language services industry is justifiably scared– I found out about the CNBC story because a friend of mine in the business posted a Slator follow-up article about it on LinkedIn (Slator is an online trade mag for linguists).   Translation providers ought to be frightened of MT for the same reason horse breeders feared Henry Ford’s assembly lines a century ago.  Ford (and other carmakers, of course) reduced the equine industry to a shell of its former self, and MT threatens the same in translation.

But remember what Ford said about the response if he asked his customers what they wanted:  a faster horse.  [Okay, maybe he never said that.  But the underlying idea is absolutely true.]  Ask language service customers what they want right now, and they’ll say “cheaper translation”.  But that’s where the analogy breaks down.  A Model T would still get you from point A to point B– just like your horse could– but without the feed and caring necessary to keep a horse alive even when you weren’t riding it.

Translation is a whole different kettle of fish, especially for attorneys, especially when they have to serve process in a different country.  Here’s why a cheaper translation is not like a faster horse– whether or not you need a stable and so many bushels of oats:

  1. As with any professional service offering, you get what you pay for in a “cheap translation.”  Recall that old litigator’s saw, “cheap, fast, and accurate… pick two” whenever a client demanded more for less.  That happens in translation, too, whether a human is involved or not.  That cheap horse might be really fast for about half a mile, at which point it keels over dead.
  2. Unquestionably, MT is a faster horse than human translation.  Exponentially faster.  And that necessarily makes it cheaper (no care & feeding).  But it doesn’t get you from A to B.  Remember your high school computer teacher’s acronym, “GIGO”?  Garbage in, garbage out.  If your machine doesn’t start with a comprehensive and very accurate vocabulary in both languages, you will get a garbage translation.  Good luck enforcing your U.S. judgment when a Japanese judge (who spent a year at Stanford in 1991-92) sees that you translated “meeting of the minds” incorrectly.  The machine doesn’t have the sense to stop and look something up (or to pick up the phone and call you to explain an arcane term of art).  It just runs home to Mama and uses the closest thing it can find– like the Japanese word for headbutting.
  3. While you could be confident that a conversation on horseback would be kept between men of an honorable character, a Model T allowed occupants to speak freely and candidly, because nobody could hear them over the engine as they whizzed by going 40.  You can likewise expect a translation provider of honorable character to keep tight-lipped about the pleadings you hand them (they’ll sign a NDA if you ask… and if they won’t, go elsewhere).  But if you use Google Translate or Amazon/Safaba or any number of other MT systems on the web, you may as well just post your pleadings on the firm’s website, because they just became part of the Borg Collective.

Now, to be sure, I won’t be able to say all of this in a few years.  AI (artificial intelligence) is growing by leaps and bounds– and I, for one, will heartily welcome our new robot overlords.  The day will come in the not-too-distant future when MT will come complete with editing and formatting and all of the time-intensive production that is now performed by human translators.

But you as a litigator must still make sure you aren’t just cheaping out.  That Japanese judge is a funny guy, but he’ll kick your enforcement action out of court faster than you can say Akebono.


* The shameless plug portion of our show… I’m a big fan of both Amazon and Google.  Really.  Alexa keeps me entertained with her patient-but-funny answers to my stupid questions, and Google is my cell phone provider (seriously, click here to sign up for Project Fi, and we’ll both score an Andrew Jackson for our trouble).  Amazon and Google get a big chunk of my business & household budgets every month.  Now if I can just convince one of them to build their second headquarters here in Kansas City.

Toledo Courthouse, San Juan, PR. Notice the big blue mailbox with the eagle on it.  Look familiar? (Daderot, via Wikimedia Commons.)

This conversation happens pretty frequently.  At first glance, it might seem like a silly discussion to have, but in reality, most of us don’t have a good handle on the geography or history behind it because we were never really exposed to it in high school.  And who paid attention then, anyway?

Caller:  “Hey, Aaron, how do I serve process in Puerto Rico?”

Me:  You pick up the phone and call a process server on that sunny island.  It’s really that simple.

Caller:  “But don’t I have to follow the Hague?”

Me:  No.

Y’see, Puerto Rico is a territory of the United States, and has been since just after the Spanish-American War.  Think “Remember the Maine,” Teddy Roosevelt, San Juan Hill and all that.  Of course, San Juan Hill is in Cuba and the city of San Juan is in Puerto Rico, but I digress.  Puerto Ricans (or, Boricuas if you’re keen to use the proper term) are U.S. citizens, they vote in presidential elections, and they carry blue passports with a big gold eagle stamped on the front, just like folks born in Iowa.

For the purpose of procedural requirements in U.S. state courts, Puerto Rico should be viewed in the same manner as a sister state…

  • Divorce case in Georgia, serving a respondent in Saint Paul?  You need a Minnesota process server.
  • Divorce case in Georgia, but serving a respondent in San Juan? You need a Puerto Rico process server.  It’s literally the same analysis.

Things are even clearer in federal court…

  • RICO case in S.D.N.Y., serving a defendant in Miami?  You need a Florida process server– or any non-party adult willing to do the job.
  • RICO case in S.D.N.Y., with a defendant in Mayagüez?  You need a Puerto Rico process server– or any non-party adult willing to do the job.  Again, same analysis.
  • In either case, the defendant is obliged to waive.  And if they refuse without cause?  Mandatory fee shifting under Rule 4(d)(2).*  They’re within a judicial district of the United States (D.P.R., naturally), so… pay up, folks.

Perhaps an even better analogy is this:  think of Puerto Rico in the same way you’d think of the District of Columbia.  No, it’s not a sovereign state, but it might as well be– at least in terms of procedural questions.  People born in DC are U.S. citizens, they vote in presidential elections, and they carry blue passports with a big gold eagle stamped on the front, just like folks born in Iowa.  (To be sure, both DC and PR are taxed without representation, but that’s an entirely different kettle of fish.)

In short, you don’t need somebody like me to effect service in Puerto Rico pursuant to the Hague Service Convention.  [Unless you’re in Canada– and even then, it’s pretty simple.  Yes, the Convention would govern how you do it, but you can use a process server under Article 10(b) just like you would in Michigan.]


* For a discussion of fee shifting in cases where a foreign defendant refuses to waive, see Serving Overseas: The Carrot and Stick of Waiver.  [That’s foreign in the “you need a passport to go there” sense, rather than the “across State Line Road” sense.  Yes, this is a distinction only a very nerdy lawyer could love.]

 

 

Albert Jankowski, via Wikimedia Commons.

My practice area is a very tight niche, and explaining it to colleagues sometimes means getting into very tall weeds.  Odd conversations tend to follow my CLE lectures.  Or bar association happy hours.  Or tours of farwaway legislative chambers.

I’ll describe what I do, and the colleague I just met will express appreciation for what I illustrated, tell me it’s a really neat niche, and then try to convince herself (or himself) that our practice areas don’t overlap.

Oh, but they do, I promise you.  The banter usually goes something like this:

Sorry, Aaron.  I handle employment law, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  

Well, I appreciate that.  I’m glad you enjoyed it.  (Inside my head:  Funny how?  I’m a clown?  I amuse you?)

No, I mean I really like how you got that picture of Ned Stark into your slide deck!

Hang on a second…  first of all, immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (She’s not kidding, sadly.*)

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

More importantly, though, what I do has direct bearing on your employment practice.  A huge impact, especially in a global economy where operations are directed from far-flung headquarters around the world.  Allow me to illustrate…

Let’s say your client, a gay Latino with a disability, works for a large retail chain that specializes in low-cost furniture and home products.**  Let’s also say that the employer provides a unique shopping experience and wonderfully tasty meatballs that are available to take home from a freezer located right next to a pallet of picture frames and window blinds.  Your client has been harassed for one reason or another, but his pleas to local supervisors and the company’s management team all the way up to the mothership have gone unanswered.  The abuse continues, and in the hope of vindicating the poor fellow’s rights, you take his case.

But who do you sue?  Well, the U.S. subsidiary that runs the store, of course.  The harassers & managers individually.  They’re pretty easy to identify as culprits.  Ah, but what of the off-shore mothership?  The one in Scandinavia, where the meatball was perfected?

Yes, you name the parent company as a defendant, too.  Just because they aren’t here doesn’t mean they aren’t part of the problem.  But now things get interesting, because you have to properly serve the parent company where it resides.  In this hypothetical, let’s “say” it’s headquartered in Sweden (wink wink, nudge nudge).

You’ll have to translate the service documents into Swedish (setting aside the fact that Swedes speak better English that I do).  You’ll have to fill out your USM-94 correctly (that’s a big one– very important, the USM-94).  And you’ll have to wait the three or four months it usually takes to get a proof of service back from Stockholm.  Odds are, you’ll get a call from opposing counsel to discuss settlement before you even receive the proof, but if you don’t even try to properly serve the mothership…

This is Ned Stark.

* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

** Disclaimer:  I love Ikea— especially those Swedish meatballs that are finally available in Kansas City.  I know of no situation in which a disabled gay Latino employee has been harassed at an Ikea store, and I imagine that a company born in Sweden would take a very dim view of such treatment of its employees.  Its inclusion here is for illustrative purposes only.

(Start running your geek flags up the pole, folks.)

Transnational Lawyer’s Log, Stardate 23866.2:

An interesting quandary was posed to me recently in an email.

“Aaron, my client was sued in a Klingon court, but was served without a translation into English.  The plaintiff sent the summons by interplanetary mail– and it was only sent in the Klingon language, lacking even a summary of the case in English.  My client is just a yeoman on the USS Intrepid– one of the guys in red shirts who have the sky-high casualty rate– and was involved in a rescue of the inhabitants of the Khitomer outpost attacked by the Romulans.  He doesn’t speak a word of Klingon (the poor kid doesn’t even like Gagh*).  Apparently, a couple of the rescued inhabitants were injured in the operation, so they sued him.  The Klingon court issued a default judgment, and the plaintiffs now seek to enforce the judgment in his home state of Michigan.  Opposing counsel says they didn’t need a translation to make it valid service unless they go through the Central Authority.  Help?”

Well, let’s first establish that Klingon signed onto the Hague Service Convention in the year 2322, twenty-five years before the Khitomer massacre.  They objected to Article 10, and stated a requirement that all Article 5 requests be transmitted along with a full translation into Klingon.**  Michigan has been part of the Convention– via the United States’ ratification– since 1969, well before stardates or the United Federation of Planets were a thing.

Anyway, the young yeoman has some plausible arguments…

  • Number one, I would attack the omission of a translation on a straight-up due process basis.  Technically, opposing counsel is correct in that a translation isn’t required by the U.S. declarations to the Convention– but those declarations also make clear that our courts may choose not to enforce judgments that arise from mailed service that isn’t accompanied by an English translation.
  • Number two, the Klingons don’t allow mail service on their own citizens– they object to Article 10 of the Hague Service Convention in its entirety– so service by mail isn’t valid in either direction.  The poor kid from Michigan can’t serve the Worf family by mail, so nobody from Klingon can do it the other way.
  • Number three (and this is the big one), remember the constitutional standard…   “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. ” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).  Just because a decision is four hundred years old doesn’t mean we forget about it.  This thing still holds water, even in the 24th century.  And if a defendant doesn’t speak Klingon, the calculation isn’t even remotely reasonable.  It’s laughable.
 Now, I don’t want to go off on a rant here.  I tend to be a bit more Vulcan than my gruff exterior might indicate.  But this is just sloppy lawyering from the Klingon side.  Those guys ought to know better.

 


* Gagh really is more satisfying when eaten live.  It’s a bit disconcerting the first time, but still.  Tasty stuff.

** If you’ve never heard Shakespeare or Dickens in the original Klingon, you’re really missing out.

Intermediate People’s Court of Wuhan City

This past weekend (Labor Day), the wires were abuzz with excitement– in transnational litigation circles, anyway– about a Chinese court’s unprecedented  enforcement of a U.S. judgment.  READ THAT SENTENCE AGAIN.  Really.  I’ll wait.

Yes, folks.  A court in the People’s Republic of China was handed a decision from a court in the United States of America, was asked to recognize & enforce it, and responded… um, okay.  Yeah, sure.  Pay up, defendants.  

You would have thought the world turned upside down.

The scoop came from Dr. Jie (Jeanne) Huang, Senior Lecturer in Chinese International Business & Economic Law at the University of New South Wales on Sunday.  Transnational litigation nerds like me went berserk.

Holy enforcement of judgments, Batman!  We’re going to win!  FINALLY, THE SUN IS COMING OUT!

Whoa there.  Not so fast, says Dan Harris.  For the record, Dan is my go-to guy on all things Chinese.  If somebody tells me turn left down a street in Beijing and Dan says to go right, I’m going right.  Well, his blog yesterday afternoon is a must-read for anybody who, like me, saw a glimmer, a sparkle, that would open the skies and lead to a deep, dark Coppertone tan.  It ain’t the bright ray of sunshine that we’re all hoping for.  It’s  a lot like that seems-to-be-on-all-fours case you find on Westlaw that makes your heart skip a beat… until you Shepardize it and realize it’s so fact-specific that it has no possible bearing on the argument you’re scraping together.

I would paraphrase Dan’s post, or try to distill it down to something soundbytey (yes, I made up that word).*  That would not even scratch the surface, so allow me to direct your attention to China Enforces United States Judgment: This Changes Pretty Much Nothing in its entirety.  Put another way…

Dan Harris is Batman.

* Soundbytey.  Adj.  Of or related to a soundbyte, a quip or quote that is easily cited by lazy journalists for simplification and understanding by the masses.

UPDATE:  Ted Folkman takes a more optimistic, though cautious, view, in this morning’s Letters Blogatory.  Ted sees that glimmer of hope, but also cautions that “it’s probably too soon to change strategies when doing business with Chinese firms or nationals.”  He’s certainly right there.  An important takeaway from today’s LB post looks at the apparent inapplicability of the Hague Service Convention to the case; perhaps the Chinese are willing to defer to the law of the forum with regard to service.

Image by “Hibino”, via Wikimedia Commons.*

An interesting opinion was handed down this morning in the Middle District of New York—not very earth-shattering, to be sure, but a solid illustration of where lawyers think they know what they’re doing, but really don’t.

A brief rundown of the facts:  the plaintiff is a high school student, Peter B. Parker, who alleged that during a class field trip to The Banner Collection, a prominent midtown museum, he was stung by a rare and poisonous insect in the museum’s animal research facility.  Named as defendants are the Collection’s owner (Crown), and its former Director of Operations, Dr. Diana T. Prince.

On the surface, a fairly straightforward personal injury claim.  Things got more complicated in light of Prince’s departure from New York shortly before the suit was filed, to accept a position as Curator of Antiquities at the new Wayne-Kent Institute in her native Athens.  Crown waived service (as it must under FRCP 4(d)), but Parker’s attorney served Prince at the museum in Greece via FedEx.

When Prince failed to appear, the court granted Parker’s motion for default judgment, and proceeded to trial against the museum.  A jury found that the museum was negligent in allowing a class of high schoolers into a research laboratory, but found that the plaintiff’s own negligence far outweighed that of the museum.

After the verdict, Prince read about the case in a trade magazine circulated to museum curators around the world, and hired counsel in New York to revisit the claim against her.  In their motion to set aside the default, Prince’s lawyers made several arguments, all of which I see as pretty solid.

  • First, Parker presented no proof of actual delivery to Prince herself—only a printout from FedEx indicating that the parcel sent by counsel was left in the Wayne-Kent Institute’s mail room.  Lacking any demonstration that she had received the notice, her attorneys argued, the service attempt should be quashed and the default judgment thrown out.
  • Second, Prince’s lawyers pointed to the FedEx dispatch itself as deficient.  FRCP 4(f)(2)(C)(ii) requires that, where a treaty allows but doesn’t specify a means of notice, service by mail is valid if the Clerk of Court addresses & sends the documents, with a signed delivery receipt required.  Parker’s counsel sent it directly from their office and provided no signature whatsoever.
  • Third, even if Parker had properly observed 4(f)(2)(C)(ii), Greece objects to service by mail under the Hague Service Convention, so the method has no legal effect in the first place.
  • Fourth—and this is the one that really gets me, because it’s just sloppy, lazy lawyering at work—although Prince was the Curator of an Athens-based museum, her office and domicile were in Israel, and no attempt was made to locate and serve her there.  At all.  (In an ironic twist for Parker, Israel doesn’t object to mail service under the Convention!)
Dr. Prince at a press conference in Tel Aviv, announcing her appointment as Wayne-Kent’s Curator of Antiquities.

In the end, the judge set aside the default based solely on Dr. Prince’s first argument, but admonished plaintiff’s counsel in light of the legal deficiencies laid out in the other three… and assessed Prince’s costs to them.  Of course, they could take another bite at the apple, but Prince would still have a couple of fancy Latin terms at her disposal: res judicata, respondeat superior

Again, this all comes down to very sloppy lawyering by plaintiff’s counsel.  Truly, a simple Google search would have told them that, while the defendant was born in Greece, she is an Israeli citizen– she even served two years in the IDF.  Had they exercised even a modicum of diligence, they could have served her properly.

Moreover, this case illustrates the importance of client-vetting.  These attorneys should have known that their plaintiff, although an orphan, was little more than a whiny kid who didn’t just mitigate his damages– he made a fortune off of them.  Media appearances alone have made him millions in the few years since the injury; perhaps Crown has a cause of action against him for unjust enrichment?


* The image above is actually the Museum of Modern Art in New York, which Crown’s owner purchased in 1998 and renamed for an old friend, Dr. Bruce Banner.  The facility expanded beyond art and into natural history research shortly thereafter.

 

Bermuda Tourism Authority, at gotobermuda.com. No, seriously, go to Bermuda. And take me with you.

We ain’t building rockets here.  But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination; this could be a frightening concept if, like me (at the age of eight), you believe in the mythology surrounding the Bermuda Triangle.

Serving process in Bermuda is subject to the strictures of the Hague Service Convention, regardless of which U.S. venue is hearing the matter.  The tiny island is an overseas territory of the United Kingdom, which has extended the treaty’s effect to most of the remaining parts of its former Empire; this includes the UK declarations.*  A fair number of U.S. tourists spend time in Bermuda, just a few hundred miles off North Carolina, and a whole bunch of financial houses are chartered there thanks to a highly favorable tax structure.  That means a fair amount of U.S. litigation involves entities on the tiny island.

Some background is in order, if you’re so inclined, before we cut to the chase.

Now, for the chase scene.  Here’s how service is effected in Bermuda:

Article 5 Service

  • Translate the documents. The UK’s declaration to Article 5(3) requires that documents be in English.  Game over, right?  Pack up and go home?  Not so fast, counsel… make sure your defendant speaks English, because his U.S. Due Process rights follow him, in a sense.  Anybody sued in a U.S. court must be served in a language they understand, so if they don’t speak English, translation is still necessary.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority.
  • Sit tight. It may take a while—likely three or four months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, but it’s a bad idea anyway.
  • Service via private agent (process server) is available to U.S. litigants under Article 10(c). This is absolutely critical—make sure to have the process server instructed by a solicitor, or the attempt to serve is ineffective, as it violates the UK’s position on Article 10.

Pretty straightforward stuff in Bermuda.  For more insight, the UK’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.  And I’m serious– when you go to Bermuda, take me with you.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.


* Declarations (also called reservations in treaty law) frustrate the hell out of U.S. practitioners who aren’t aware that they change the effect of statutory text.  If a country declares its opposition to Article 10 (Germany and China do, for example), then Article 10 does not exist between it and the United States.  The methods described there aren’t even part of the agreement.

Perhaps it looks a bit too much like The Eye of Sauron to take seriously?  I took this during the total eclipse.  With my phone, if you can believe it.

Like many of our fellow humans, my wife and I took a few hours away from our respective offices yesterday to watch something that hasn’t happened in Kansas City since before the first intrepid Frenchmen paddled up the Mighty Mo seeking beaver pelts.  Just after noon CDT, we donned some funny cardboard glasses and watched a total solar eclipse for about 45 seconds.  This sort of event has been monumental in history, cajoling warring factions to the peace table, and offering a backdrop for great literature.  And we had an absolute ball.  I really didn’t think it would have an emotional impact on me, but it did.  As the sky darkened, the temperature tanked, crickets began chirping as if it were dusk, and the streetlights came on.*

Our soundtrack was a whole lot of fun, too…

Now enter The Honorable Steven D. Merryday of the Middle District of Florida, who took my Carly Simon reference to completely new heights with a tongue-in-cheek order regarding a government motion for continuance.  The AUSA’s offered grounds?  The key FBI agent had already bought plane tickets to Charleston (or Nashville or Kansas City or Portland) to see the eclipse in its full glory.

Now, as I started to read the thing, I thought to myself “outstanding– a judge who recognizes the monumental events here.”  But a few para’s into it, I caught on to his logic.  By the end, it was pretty apparent that somebody in the Justice Department played fast & loose with the facts.  Motion denied.

I have to think that if they hadn’t just pulled assertions out of a hat, His Honor might have granted the motion.  Who knows?  (Read the order on Scribd here.)

So what does this have to do with Hague service?  Not a thing.  Unless you recognize that pulling assertions out of a hat is dangerous in the law.  Sooner or later the judge is going to get wise to your antics and smack you.

Examples of such antics:

Far better to do it right the first time and not become the subject of listserv discussions** across a wide swath of the country.


* Thanks to my good friend and law school classmate Carl Scarborough (and his wife, Doreen) for letting us camp out in the zone of totality.

** And a hat tip to my colleague David Ransin for bringing the M.D. Fla. order to my attention on the Solo & Small Firm Listserv of the Missouri Bar.