Supreme People’s Court, Beijing (Reuters)

The vast majority of cases I work on are a lot like the material we read in law school.  My Torts professor told us on more than one occasion that “there are real people behind every one of these cases.”  My cases are no different.

She also told us that they were in these casebooks because some lawyer goofed.”  Or words to that effect, anyway.  I took both thoughts to heart, and they have guided my immersion in the profession ever since.* 

Last year, when I posted “Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts,“ I had those real people– and preventing lawyerly goof-ups– in mind.  But lately, I’ve realized that some elaboration is necessary.  Why those five things matter ought to be apparent.  But some nuance is necessary, so I offer a five-part series that elaborates on each point, more for than benefit of lawyers than for the business owners who want to venture abroad.  

Those five things, in turn…

  1. Designate an agent for service in the United States.
  2. Include a choice of venue.
  3. Choose a governing law.
  4. Determine the operative language.
  5. Secure a guarantee of judgment debt.

If you choose not to decide, you still have made a choice.

— Neal Peart, 1979

To elaborate on Point Two…

Include a choice of venue.

Even if that venue is overseas (and in many cases, it’s actually smarter to choose a foreign venue than a U.S. venue), agreeing on the appropriate place for a suit prevents a number of headaches—and can even prevent a dispute from arising in the first place.  Globally, this is referred to as a “choice of court clause” but has similar binding effect in most industrialized countries.

If no venue is selected, then any venue might end up taking up a dispute, and you don’t want that.  Don’t simply assume that the locus of performance will be the proper venue for a dispute.  Why not the locus of execution?  Why not the plaintiff’s hometown?  Why not the defendant’s hometown?  Why not the locus of the widget’s manufacture or export or import?

This is a classic Conflict of Laws issue, and courts hate to wade into those questions if they don’t have to.  This might be the single most esoteric and arbitrary– yet wide-ranging and impactful–  field of law, SO TAKE IT OFF THE TABLE.  Make a decision about where the parties want disputes to be heard.  But think about a few things as you do…

  1. Don’t be too certain that your hometown is the best place to go.  A rural Kansas state court may not have sufficient expertise to adjudicate an international trade case.  Sure, you’re more likely to have a sympathetic ear in a local judge & jury, but how competent are those folks to determine wrongdoing if everything about the contract (execution, performance, payment, etc.) takes place in Spain?
  2. Don’t be too certain that the other fellow’s hometown isn’t the best place to go.  In some cases, particularly in China (as highlighted frequently by Dan Harris’ excellent China Law Blog), choosing the other guy’s home venue can be a nice hedge against his breaching the contract!  If you have the guts to challenge him in his own backyard, he’ll think twice about trying to welch on you.  Sure, you may not win there, but Sun Tzu would tell you that the greater victory is to not have to fight in the first place.
  3. Be certain the selected venue has sufficient connection to the facts & parties involved.  Sure, the Delaware Chancery Court might have the most expertise applicable to a particular set of facts & law, but if there’s no Delaware party involved in the contract, why would it even want to deal with it?  Courts don’t take up cases just because someone asks them to.  
  4. Don’t be so sure the venue that seems smartest actually is the smartest.  Again, I shamelessly extrapolate Dan Harris’ thoughts on choosing Hong Kong as a litigation venue.  Yes, you know the rules and you know the law in a particular court.  You know that it’s a nice, neutral setting, so neither party is going to get hometowned (sp?).  You know it has a reputation for fairness and expertise in the particular area of law.  You know both sides are familiar with its unwritten rules and you know that language isn’t a problematic issue.  But how are you going to enforce a judgment from that court unless the other party has assets under its control?  It could be a massive waste of everybody’s time to litigate– and res judicata could destroy your chances of ever collecting.
  5. Ponder an arbitration clause. It serves the same purpose as a choice of court clause, and often designates specific rules and the governing law.  Thanks to the New York Arbitration Convention, arbitral awards are far easier to enforce abroad than litigated judgments and, despite their political unpopularity, provide significant cost savings in dispute resolution.  (Dan would also tell you that Chinese courts aren’t keen on enforcing arbitral awards, so don’t do it unadvisedly. If you’re drafting a China contract, call Dan.  Just do it.)  Sure, they’re de rigeur in consumer contracts, but they may not be the best way to go in commercial contracts– especially across borders.  Still, if the circumstances are right, arbitration could be a bright idea.
  6. Recognize that the choice of venue clause can be an outstanding negotiating concession.  If you’ve concluded that litigating in the other fellow’s back yard wouldn’t be a tragedy, give that fellow what he wants in exchange for something you truly need.
  7. Don’t get cute.  See Dan Harris’ “… Too Clever by Half” post.
  8. Above all, for crying out loud, make the venue and governing law correspond to the language!  It’s awfully impractical to expect a Minnesota court to adjudicate a Spanish contract under German law.  Ponder that for just a moment– it insults Minnesota because you don’t believe in English or Minnesota law, in insults Spain (or Mexico or Argentina, etc.) because you don’t believe in its courts or law, and it insults Germany because you can’t be bothered to adjudicate there in its language.

Seriously.  This stuff is crucial, and there is no standard form to fill out– every contract is different, even if the same parties are signing the latest agreement in a decades-long relationship.


* I learned Torts from Nancy Levit.  It was my best grade that very first semester, which isn’t saying much, but I definitely learned a bunch from her.  The learning continued after I graduated, with two books she co-wrote with Doug Linder (my ConLaw professor, two semesters worth).  I highly recommend The Happy Lawyer and The Good Lawyer.  

Taos County, New Mexico. Sheriff Montoya discusses business with a process server, 1941. NARA photo.

The vast majority of cases I work on are a lot like the material we read in law school.  My Torts professor told us on more than one occasion that “there are real people behind every one of these cases.”  My cases are no different.

She also told us that they were in these casebooks because some lawyer goofed.”  Or words to that effect, anyway.  I took both thoughts to heart, and they have guided my immersion in the profession ever since.* 

Last year, when I posted “Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts,“ I had those real people– and preventing lawyerly goof-ups– in mind.  But lately, I’ve realized that some elaboration is necessary.  Why those five things matter ought to be apparent.  But some nuance is necessary, so I offer a five-part series that elaborates on each point, more for than benefit of lawyers than for the business owners who want to venture abroad.  

Those five things, in turn…

  1. Designate an agent for service in the United States.
  2. Include a choice of venue.
  3. Choose a governing law.
  4. Determine the operative language.
  5. Secure a guarantee of judgment debt.

If you choose not to decide, you still have made a choice.

— Neal Peart, 1979

To elaborate on Point One…

Designate an agent for service in the United States.

All U.S. entities must designate an agent for service when they incorporate, organize, or register with their respective Secretary of State.  Foreign (that is, non-U.S.) entities usually bear no such responsibility.  If a lawsuit against one of those entities becomes necessary, you probably won’t be able to just hire a process server in the foreign country. You will need someone like me to handle it for you or, worse, you’ll spend hours just researching how it’s done (and then bill you for that time).  With a U.S. agent, regular U.S. practice is perfectly fine.  (And to go one better, have the contract stipulate that the agent can be served by email!)

When you hire me, I’m going to charge you at least a few hundred bucks per defendant.  And although your client is going to save money if you hire me instead of doing it yourself (I elaborate here), I’m not cheap, and neither are my competitors if you’re doing it right.

Now, who should that agent for service be?  Well, that’s a tough one, especially if the foreign party isn’t registered with a particular Secretary of State (very few are– and don’t just assume you can serve a Secretary of State by default, because the Secretary is usually just a link in a chain of service, and Hague restrictions still must be observed).  The foreign party may have counsel, they may have a U.S. subsidiary, or they may have some other U.S. presence that can be specifically designated and authorized to accept service on their behalf.  Just be careful about who is selected.  Some pitfalls:

  • Designated counsel:  imagine that in the contract, the foreign party has designated its Boston attorneys– Crane, Poole, and Schmidt— to accept service on its behalf.  A year into the contract, the foreign party fires the firm because the principal partner has mad cow disease.  Then what?  
  • Designated U.S. subsidiary:  imagine a similar scenario, but instead of firing its lawyers, the foreign party dissolves its subsidiary or moves it offshore.  Then what?
  • Designated U.S. presence:  perhaps the foreign party has a storefront location in Peoria, or a satellite office in Kansas City, and they designate that U.S. presence as their agent for service.  Maybe the storefront is destroyed by fire, or maybe the KC office can’t hold onto its staff because the labor market is so vibrant.  Then what?

Your best course of action might be an established agency in the capital of the state that you expect to be the locus of performance.  A simple Google search pulls up dozens of agents who can be hired for fifty bucks a year.  Prepay the agent for the life of the contract, et voilà.  When a dispute arises, you don’t have to pay me a thousand dollars (and pay a translator six thousand dollars!) just to get the defendant into court.

It’ll cost you $37.00 in courier fees to overnight the summons & complaint to an agency in Dover.


* I learned Torts from Nancy Levit.  It was my best grade that very first semester, which isn’t saying much, but I definitely learned a bunch from her.  The learning continued after I graduated, with two books she co-wrote with Doug Linder (my ConLaw professor, two semesters worth).  I highly recommend The Happy Lawyer and The Good Lawyer.  

Timmy the Biglaw Associate realizes that he needs to discover documents from a company in Italy.  Timmy knows from CivPro class that discovery requires a subpoena, so he dutifully sits down and writes one, to command the company to produce any and all documents related to XYZ, et c.  He seals it up in a FedEx envelope, sends it off to Milan, and a week later, the company’s avvocato tells them to fugghetaboutitit has no coercive effect in Italy.

Timmy went to an Ivy League law school, graduated at the top of his class, and was heavily recruited by the biggest white shoe firms on the east coast.  But they never told Timmy about extraterritorial effect in law school.  It simply never came up.  What Timmy didn’t know is that a Hague Evidence Request is the proper instrument to compel the production of evidence in Italy and a few dozen other countries.  Some very important rules apply to its use, and its execution relies on the kindness of a foreign judge who is a bit like that guy in the sleigh who gets his own tracking system at NORAD.

Some salty old veteran in the managing attorney’s office tells him, “no, Timmy, the Hague Evidence Convention applies here– try again,” so he copies and pastes the subpoena language into the form provided by the Hague Conference, and shoots it off to Rome.  It eventually lands on the desk of an Italian judge.

Sadly, a Hague Evidence Request is not what Timmy thinks it is.

It’s not a subpoena.  It’s a Letter to Santa Claus.

More to the point, it’s a Letter to Santa Claus in which you must not only justify the pony, but also describe its height, color, and breed, then tell Santa exactly what its responsibilities will be (carnival rides, herding cattle, pulling a beer wagon).  You can’t just tell Santa you want “a” pony.  You have to define what you mean, and then articulate why.

Think of the Italian judge like Santa Claus.  Timmy just demanded a whole bunch of ponies.  And you don’t just demand something from the man in the sleigh.  Even if you’re Veruca Salt and your daddy is a pushover.  You can’t just say you want the whole world, Veruca.

A little illustration…

The year I turned ten, I figured out the guy in the sleigh.  Around Thanksgiving, I told Mom & Dad that “I KNOW YOU’VE BEEN LYING TO ME”, and they reacted by threatening my life if I broke my kid sister’s six year-old heart and told her the ugly truth.  I almost spilled the beans a couple of times, prompting threatening glares from Mom and a simple tap of the belt buckle from the Old Man.  I had to think fast, or Christmas was really going to suck.

Dad had just gotten promoted (ah, life in an Army family), so we could finally afford some of the cooler stuff in the Sears Wishbook, and I was assured that the naughty/nice criteria remained in effect as to my own haul on Christmas morning.  I volunteered to help… I’d pitch in and make it special for Kid Sister.  On Christmas Eve, I stayed up until 3am with the Old Man to assemble the Barbie Dream House.  This evil monstrosity right here–>  

It was an epic nightmare.  A thousand little pieces and tabs and slots and a schematic to rival the Space Shuttle… just a nightmare.  But as much as she appreciated it and played with it for hours and hours, Sis confided in me years later that it wasn’t the one she wanted.  She wanted a far simpler version– the town house from the 1960s, rather than the massive Malibu Beach House that all the little girls wanted in 1980, give or take a couple of years.  We picked up a ’60s version at a garage sale five months later when the family next door was transferred to Germany.

Two decades later, I was the Old Man myself, and I expected another 3am assembly project.  The updated version of Barbie’s town house popped out of the box, folded open, snapped into place, et voila.  No assembly, no screws, no tabs… it was as if someone had clued the Mattel people into the fact that dads despised them.

But to compare, my sister hadn’t been specific.*  My stepdaughter was pinpoint accurate about her intent– for months– and she took me by the hand every time we were within a mile of Toys ‘R’ Us and said…

<– “THAT ONE, RIGHT THERE.”

Surgically specific.  I expected her to make me write down the numbers from the UPC label.  On Christmas morning, Santa Claus made that little girl sing with delight (and my heart sang right along with her).

The lesson for litigators here… don’t be like Timmy, or my kid sister.  Don’t just say you want “a pony” and think that by noon on Christmas Day, you’ll be driving a herd up to Abilene.  Don’t just say “I want a G.I. Joe.”  Santa Claus doesn’t know that you want the G.I. Joe with the kung fu grip.  He goes to the toy department at K-Mart* and is so overwhelmed with ALL the G.I. Joe stuff that he just gets you a nice, um… football.

In a Hague Evidence request, you have more like my stepdaughter.  Or Ralphie Parker– after he left Higbee’s (you know Ralphie, and if you don’t, you’ve obviously been living under a rock for thirty years).  Ralphie’s Old Man knew with certainty that he wanted “an official Red Ryder, carbine action, two-hundred shot range model air rifle!”

Why?  Because Ralphie was so utterly specific, once he overcame his awe of being in the presence of the big man himself.  Of course, he fought really hard to not overdo it.  He had to be subtle in communicating his specificity (Miss Shields’ theme assignment probably had no discernible effect on Santa Claus’ understanding of the matter).  But he very specifically stated what he sought, and his request was duly executed by the appropriate judicial authority (read: Dad) of the jurisdiction in which the thing was sought (3159 W. 11th Street, Cleveland, OH 44109– in real life).

The point is this: a subpoena demands that someone give you what you seek; if they don’t give it to you, consequences follow.  You don’t demand anything in a Hague Evidence Request; if you do, you’re headed for a very pink nightmare.


* The lesson was passed down to the next generation.  My nephews now send me URLs to specific products on Amazon.  Usually Nerf guns.

** I worked at K-Mart for a couple of seasons while I was in college.  It really was a class organization, although I think they treated me better because I was in college and not high school.  I worked the toy department for exactly one shift during the Christmas season.  Never again.  There was just too much… everything.  No wonder Santa wants specifics.

OH YEAH.  ONLY 84 DAYS UNTIL CHRISTMAS, KIDS.

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.