Not the Paris you’re thinking of.      Jeanne Boleyn, via Wikimedia Commons.

I fielded an interesting phone call last week.  It seems the caller rather enjoyed the august pages of my blog—thanks to a quick Google search on how to serve process in Italy—and rang me up to make sure he was doing things the right way.  Excitedly, he told me that he’d gotten his documents translated, just like I suggested.  He said he’d identified the correct Hague Central Authority, just like I suggested.  The paperwork was all pulled together and ready to go—but he was a bit uncertain.

As a courtesy (which I’m always happy to provide), I told him to email me the documents and I’d take a look at them for nothing.  I’d only charge him if I saw glaring errors that needed to be fixed.  After I looked at them, I gave him a thumbs-up and reassured him.

Ye did it right, counsel.

“Whew.  Good,” he said.  “That would have been a huge chunk of my life wasted if I hadn’t.”

How many hours do you have into it? I asked.

“Sheesh.  At least ten.  And I’m still not done.”

Hmmm.  You could’ve saved a whole lot of heartache and just had me handle it for you.

“Oh, you’re admitted in New York, too?”

Um… no.  Why?

“Well, don’t you have to be admitted in New York to do this on a New York case?”

Nope.  Just admitted somewhere.  I’ve got the Show Me State.

Poor fellow was incredulous.  “You mean I could have just hired you and saved myself all the trouble?”

Yep.

It isn’t necessary to be admitted in the court hearing the case to sign a Hague Request.  It is necessary to be a licensed attorney, but the U.S. declaration to Article 5(3) of the Hague Service Convention says any attorney can do it.  Any.

Yes, counsel.  That means you, too.  I’ve posted several times that service abroad is something that you can do yourself.  But that doesn’t mean you have to—or even should.  After all, you wouldn’t serve process yourself in Paris, Texas, so why should you handle service yourself in Paris, France?

The one you’re thinking of. Waithamai via Wikimedia Commons.

You wouldn’t send your junior associate to serve a defendant in Queens, so why would you have that same junior associate worry about serving in Queensland, Australia?

Short answer:  don’t.  Just outsource it.  To illustrate, I don’t represent DWI defendants.  Yes, I’m officially qualified, but it would take hours of research, and questions to the various listservs I subscribe to, just to figure out the choreography of the hearing.  And that’s before I even delve into the substantive law.  Fortunately, when my favorite aunt calls me to say that my (idiot) cousin Ernie* blew .11 on his way home from the bar, I have friends I can send her to.  That is, friends I can send Ernie to.

Short rationale: it will save you a whole bunch of time, and it will save your clients a whole bunch of money.  Service in Vienna, Virginia is something you hire someone else to handle… it makes sense to do likewise in Vienna, Austria.

If you have overseas defendants or overseas witnesses or you need to enforce a U.S. judgment overseas, give us a call… it’s what we do. **


* Ernie is an idiot on his own merits.  This condition is not a predicate to his DWI charge, but it certainly makes the situation worse.

** Finally, I get to work William Shatner into a post.  I celebrate his entire catalog (even T.J. Hooker), but Shatner’s best work is when he’s lampooning Shatner.

 

Smart folks here. Those terminals? That’s who you talk to when you get home. CBP photo.

I’m off to Montreal this week– a much-anticipated trip– for meetings and a conference, then on to Oxford next week to give a CLE lecture.  When I come back, I anticipate a bit of a smoother return because of a Customs & Border Protection program called Global Entry.  The scheme is designed primarily for frequent travelers, but even for people who venture abroad only once in a while, it’s awfully handy, and if nothing else, pays for itself in time saved.

Costs:

  • Twenty minutes to fill out the form.  Have your passport and driver’s license handy.
  • $100 for a five-year clearance.  Credit cards accepted (preferred?).
  • A trip to the airport (at least, the nearest airport with international connections) for an interview and fingerprint scan.  Yes, they’ll validate your parking.  Yes, CBP’s officers are regular people just like you and me.  It’s painless.

Benefits:

  • TSA Pre-Check is automatically included.  Keep your shoes on, keep your belt on, leave your laptop and liquids in your carry-on.  Did I mention that TSA Pre-Check is already $85?
  • No line at the port of re-entry into the United States (see the picture above).  You simply scan your passport and prints, enter your declarations on the touchscreen, and doors magically open for you.  This can save a half-hour’s wait (if not more) as the CBP officers process everybody else on your crowded flight.  Now, to be sure, U.S. citizens usually have a shorter wait than foreign visitors anyway, but your time is still worth it.
  • Partner programs for Canada and Mexico.
  • Easier access to China and the Far East.  As my interviewing officer explained, the People’s Republic of China and a few other east Asian nations have a comparable program, available to U.S. citizens with Global Entry clearance, that pre-clears known travelers for immigration and customs.  Apparently, the lines in Beijing are nightmarish, so if you plan to go to  the PRC more than once, it’s an even greater time-saver.
  • Easier renewals.  Much like your passport, renewing the thing is far easier than getting it in the first place.  Yes, you have repeat costs, but at twenty bucks a year, it’s a slam dunk.
These folks didn’t get the memo. I’ve waited in that line.  CBP photo.

Drawbacks:

  • Nobody from the United States government says “welcome home” to you.  Seriously– that’s awfully nice to hear after a lengthy sojourn abroad.  Here, it’s a touchscreen.  You literally get more love from your laptop.
  • That about covers it.

Even if you only fly abroad once every few years, get on this program instead of Pre-Check.  In any industry that views time as a valuable commodity (I’m talking to you, lawyers), this thing pays for itself in a single trip anywhere– not just abroad.  Road warriors, take note– if you spend a couple of hours of your life now, you’ll save several later on.  That will make you far more willing to go abroad and look your clients in the eye.

Poor fellow got stabbed right when things were getting interesting. Coke Smyth, Folger Shakespeare Library Digital Image Collection.

Before he was Bilbo Baggins, Sir Ian Holm brought Polonius to life in Mel Gibson’s 1990 screen adaptation of Hamlet (long before Mel went stone cold nuts, but that’s a different story).  For the uninitiated, Polonius was a loyal advisor to the slain king, very much like a second father to Hamlet the Prince.  Who killed him.

Polonius is my favorite character in the Pantheon of Shakespeare’s personalities– if for no other reason, because of this line:

Therefore, since brevity is the soul of wit,
And tediousness the limbs and outward flourishes,
I will be brief: your noble son is mad:
Mad call I it; for, to define true madness,
What is’t but to be nothing else but mad?
But let that go.

Brevity is the soul of wit.

My wit often forgets its soul, and I become tedious, much like my other favorite Shakesman, the constable Dogberry from Much Ado About Nothing.*  I am a lawyer, and I fall victim to the Lawyer’s Curse: that we think we’re getting paid by the word.  More words, more money.  Yay, lawyers.

Except, no.  Although we’re not trying to be witty, we don’t get paid by the word.  We get paid by the hour, and even that seems somehow perverse in a profession that prides itself on the best interest of the client.  Translators, on the other hand, do get paid by the word.  So when Germany’s declarations to the Hague Service Convention mandate translation of all documents to be served, it becomes pretty important for plaintiff’s counsel to keep things short, sweet, and to the point.

This is particularly difficult in patent infringement cases, although I have a theory I’d love to see tested.**  Nevertheless, it really is critical to keep the pleadings brief, even in fact-pleading jurisdictions.  Nearly all of our major trading partners require translation of service documents into their own language (the Netherlands and Israel being notable exceptions).

This above all: to thine own client be true.  

Remember that you don’t get paid by the word, but translators do.

Draft accordingly.

*  I still can’t decide whether I enjoyed Michael Keaton‘s or Nathan Fillion‘s Dogberry more.

** Patents are a matter of public record, and they’re accessible at the PTO’s website.  So why must they be attached to a complaint as exhibits rather than incorporated by reference?  I honestly don’t know the answer to that question, and I welcome feedback in the comments below.  Notice pleading (see FRCP 8(a)(2)) requires a short and plain statement of the claim.  Four hundred pages of dense patent language tends to violate that idea.  And those four hundred pages are incredibly costly to translate into Swedish.  Consequently, I argue that they ought to be left out, in order to avoid unnecessary costs.  (I may be wrong, and don’t mind being told so.)

DoD photo (thus, public domain). Via Wikimedia Commons.
DoD photo (thus, public domain). Via Wikimedia Commons.

Litigation is civilized combat.

That’s not my original thought, but forgive the lack of appropriate credit.  I don’t recall where I first heard it.

Sure, it’s an oft-criticized concept– thinking of litigators as warriors, hired guns, Viking marauders, etc.  But it offers perspective on how to approach a dispute once diplomacy and negotiation break down.  In this particular analogy, I offer a sport that has intrigued me for years, although I’ve never gotten into it: fencing.

Think of a lawsuit as a fencing bout.*  A thrust is an offensive move—literally trying to strike your opponent with your blade.  A parry is defensive in nature—either a block to the thrust, or a simple change in position—rendering the thrust ineffective– and when followed by a riposte, turns around on the aggressor.  In a suit, service of process is the opening thrust, and if it’s done incorrectly, it is easily parried away, and can be turned into a fatal riposte (dismissal!).

Last month, Nathan Park’s Asia in U.S. Courts blog (which I highly recommend if you’re at all interested in the Far East and its interplay with the U.S. judiciary) highlighted a parry that went wrong for the plaintiff—in a completely preventable way.  She alleged that a piece of medical equipment had injured her, and sued the manufacturer in California.  The defendant is Japanese, but has a subsidiary in Illinois.  With me so far?

Counsel served the Japanese parent by delivering the documents to the Illinois sub.

Sorry, ma’am– not valid, said the court.  The subsidiary wasn’t sufficiently shown to be an agent of the parent company.

Now, Illinois has a statute that allows precisely that sort of service, but the statute only applies to Illinois state court actions.  This statute was at the heart of Schlunk, the seminal, end-all-be-all, Great White Whale opinion in Hague Service Convention matters,** which held that the Convention was mandatory where it applied, but because the defendant (Volkswagen) could be served in Illinois, the Convention was inapplicable.

It seems that, perhaps somebody misread Schlunk and thought “hey, let’s tag the Illinois sub based on that opinion.”  That the California court based its ruling on other grounds doesn’t validate the way the plaintiff tried to serve.

To their credit, counsel also undertook a belt-and-suspenders tactic: directly notifying the Japanese defendant by FedEx.  But they didn’t follow 4(f)(2)(C)(ii), and subsequently insisted that it wasn’t service, but merely delivery of a courtesy copy.  When the judge rejected the Illinois method, they did pursue the proper mail procedure.

But again… not so fast.  That doesn’t necessarily suffice– and it could be disastrous if the plaintiff has to enforce a judgment overseas.

For starters, serving abroad by mail presents significant factual challenges:  it’s hard to prove.  It’s also hard to demonstrate that it made it upstairs to the defendant’s actual office, even though FedEx or the Post Office might get the thing to an office building’s mailroom.  Beyond that, although the legality of the method is solid in federal court here in the U.S., it’s questionable in Japan.

Article 10(a) of the Convention offers “postal channels” as a viable option, provided the destination state does not object.  Canada, the UK, the US… we don’t object.  Germany, China, Switzerland, Mexico… they all do.

The Japanese, though, are stereotypically measured in their position.

“Japan has not declared that it objects to the sending of judicial documents, by postal channels, directly to addressees in Japan. As the representative of Japan made clear at the Special Commission of April 1989 on the practical operation of the Service and Evidence Conventions, Japan does not consider that the use of postal channels for sending judicial documents to persons in Japan constitutes an infringement of its sovereign power.”

“Nevertheless, as the representative also indicated, the absence of a formal objection does not imply that the sending of judicial documents by postal channels to addressees in Japan is always considered valid service in Japan. In fact, sending documents by such a method would not be deemed valid service in Japan in circumstances where the rights of the addressee were not respected.”

Um… huh?  They don’t object because it doesn’t infringe on their sovereignty (service of process is a sovereign function), but it might be a violation of the defendant’s rights under local law, which means the law triggers an objection?  (Which might put it in conflict with 4(f)(2)(C)!)

In other words, different from yes?

Several years ago, I was told by a friend who was studying Japanese that the language lacks a direct translation for “NO”.  They say “different from yes” as a means of not offending the listener.  And that’s what we have here.  Out of fear of offending a foreign partner, the Japanese statement on 10(a) creates a really murky situation.  Combine that with the fact challenges of mail service, and only one motivation can possibly justify using mail to Japan:  saving a few bucks.  It can’t be called a valid method of service with sufficient certainty.

The best course is, without question, a request to the Japanese Central Authority pursuant to Article 5.  They don’t take that long, and– if you’re judicious in your drafting (ie: brief)– they don’t cost much to undertake.

Back to the fencing match.  Service of process is the very first thrust a plaintiff brings to the arena.  Mail service is a pretty weak way to lead off the bout.  And there’s not a lot of justification for it when the primary method is so straightforward.


* A fencing match is called a bout.  I had to look that up.  Cool wiki on fencing terminology here.  Thrust is replaced by the more specific lunge.  Still, fun to learn new stuff.

** Although the rule laid down by the Supremes (unanimously) didn’t apply to that particular case, this was back when the Court had a little forethought and decided to fashion a rule in an opinion even though it might not apply to the case at bar.  If only they’d done so in Water Splash.

The Summer Palace and Kunming Lake, Beijing. Daniel Case via Wikimedia Commons.

News broke on Monday that a White House statement issued during the G-20 summit referred to Xi Jinping as President of the Republic of China.

Oops.

Mr. Xi is the leader of the People’s Republic of China (PRC), the communist mainland, as distinguished from the Republic of China (ROC) government.  That regime fled the mainland in 1949 to the island of Formosa– more commonly known as Taiwan– and remained the Chinese government recognized* by most of the world until 1971.  [To be sure, the State Department apologized for the gaffe… once the Chinese piped up and said, “um, did you guys ever take a history class?”  Perhaps this is why it’s not such a bad thing to have “professional politicians” in Washington.]

This is an elementary mistake that just shouldn’t happen at the highest levels of government.  It also shouldn’t happen in legal proceedings, but occasionally, such errors slip through, and they can be fatal to requests for service of process sent to foreign jurisdictions.  Three names to watch for– all China-centered:

  1. CHINA, PEOPLE’S REPUBLIC OF.  Again, the PRC is not to be confused with the older regime (the Kuomintang) which ruled China until Mao’s Communist Revolution.  This one is the mother ship, Big Red, the 1.3 billion people who make most of the stuff you buy at K-Mart.**  They not only have four times our population, but they also have nukes and a permanent seat (with veto) on the UN Security Council.  Safest bet– just call it China.  Full stop.
  2. CHINA, REPUBLIC OF.  This is not the mother ship.  And if you ask one of its residents, they’ll tell you that they’re still Chinese, but they haven’t been able to bring down the usurpers who’ve been running the mainland for nearly 70 years.  The ROC had the Chinese seat at the UN until 1971, when the UN accepted the reality that was the PRC.  To be safe in court documents, just call the ROC simply Taiwan and leave it at that.  Don’t elaborate and don’t get into the republican weeds in your pleadings, because it will only cause problems.
  3. HONG KONG, SPECIAL ADMINISTRATIVE REGION (SAR).  A British colony for a century, Hong Kong today maintains its common law legal system even though it became part of the PRC two decades ago.  If several sovereign states are named (China, Japan, the United States, even Missouri) or referred to in the pleadings, then Hong Kong must be modified to reflect its status.  Call it either “Hong Kong, China” or “Hong Kong, SAR” in order to differentiate it from sovereigns (which it’s not).

To Americans, this stuff doesn’t seem like a big deal.  To the Chinese– a culture that views “saving face” as an essential part of human existence– it’s downright critical.  If you’re going to play in their sandbox, you’re advised to adhere to their rules.  If you want them to serve process for you, or if you want to compel evidence, or if you hold out hope that they’ll ever enforce your judgment, you’re advised to pay close attention to nomenclature.


* Recognition is a very tenuous subject– so much so that the U.S. no longer formally recognizes any other country outright. We may send ambassadors, and the status of diplomatic relations may ebb & flow, but Rex Tillerson won’t step up to a lectern to say “the United States recognizes Country XYZ.”

** A little homage to a once-great company.  I spent two summers working there in college and enjoyed it thoroughly.

If only they actually made these. (OttomanJackson, via Wikimedia Commons)

A few months ago, I offered up a nightmare scenario to illustrate the importance of properly serving under the Hague Service Convention.  After I mentioned it in a CLE lecture (about legal blogging, of all things), a colleague asked me a question that compelled me to revisit the issue.  “Here’s a thought,” he said… “what if somebody wins the lottery?”  Alarm bells started going off in my head.  Holy cow, I thought.  That’s an even bigger nightmare than I’d envisioned.

My original hypo suggested a divorce case, wife a U.S. citizen, husband an undocumented Mexican immigrant.  He goes back to Mexico, and she petitions for divorce, but doesn’t serve properly (she mails it, rather than going through Mexico’s Central Authority for the Convention).  The court enters a default in her favor despite the ineffective service, and she gets sole custody of the kids, quiets title to the house, and gets back out into the world as a woman unencumbered by an absent spouse.

But the husband shows up on her doorstep a few years later, only to find that she’s married again– this time to a very nice fellow she met at the Piggly Wiggly.  The husband is justifiably angry that his kids are addressing Piggly-Wiggly-Guy as “Dad” and finds a really good lawyer to reverse the carnage.

What result?  Well, I imagine that the husband would get his house & kids back, unless the judiciary loses its collective mind.  And I also imagine that counsel for the petitioner is going to be hauled before OCDC… and then into a malpractice suit.  Not fun for the lawyer.

Now add a state-sanctioned jackpot wad to the story.  Let’s say the wife throws a sawbuck into an office lottery pool.  She and her officemates split a $300 million prize– after taxes, she has a nice, tidy twenty mill to play with.

Mightn’t that constitute marital property?  Of course it might.

But in which marriage?  Not the one with Mr. Piggly-Wiggly-Guy in it.  The malpractice stakes just got a bit higher, no?

Point is, it’s up to the petitioner to properly serve the respondent.  If the petitioner’s lawyer doesn’t do the cursory research to learn the right way, he’s not only doing his client a disservice, he’s exposing his practice to some very nasty risk.


Readers here can very easily find a how-to primer about the countries most frequently served by U.S. and Canadian litigants, both within the Hague community and without.  Just scroll up to the top of this page and type the country name.  Go ahead… we’ll be here for you when you get back.

Harris County Courthouse, where this guy should have gotten a sentence that would have precluded a citizenship application. "i_am_jim" via Wikimedia Commons.
Harris County Courthouse, where this guy should have gotten a sentence that would have precluded a citizenship application.  Image: “i_am_jim” via Wikimedia Commons.

“So, Aaron, what kind of law do you handle?” ”

Anything in litigation that crosses a border.

“Oh.  Immigration?” [After a few dozen times hearing that, I revised my answer.]

Procedural issues in litigation that cross borders.

They still ask if that means immigration, but no.  No, it doesn’t.  At least not with regard to the Hague Service Convention.

However, an interesting development out of Texas last week… a naturalized U.S. citizen was denaturalized (had his citizenship revoked) because he’d lied on his application some twenty years ago.  From the U.S. Immigration & Customs Enforcement press release:

Jose Arizmendi, 54, a native of Mexico, pleaded guilty in April 1996 to aggravated sexual assault of a child in the District Court of Harris County, Texas. When Arizmendi applied for naturalized U.S. citizenship later that month — and again when he was interviewed in connection with his application in October 1996 — he answered “no” when asked if he had “ever been arrested, cited, charged, indicted, convicted, fined, or imprisoned for breaking or violating any law or ordinance excluding traffic regulations.” Relying on this answer, the U.S. government granted his naturalization application and Arizmendi became a U.S. citizen later that year.

Of course, one has to wonder why he wasn’t incarcerated on the aggravated sexual assault of a child plea– and one has to wonder why the Immigration & Naturalization Service (ICE’s predecessor) didn’t at least run this guy’s prints before giving him the right to vote… but I digress.

As it turns out, when the U.S. Attorney initiated denaturalization proceedings against him, he was serving a hefty prison sentence in his native land, so the Department of Justice had to serve him under the Hague Service Convention.*  Of course, Mexico can be a tough nut to crack— even under the best of circumstances, the procedure takes 9 months or more to receive a proof of service from the Mexican Central Authority.  But he wasn’t going anywhere, so a delay really didn’t grind the wheels of justice to a halt.  Regular plaintiffs don’t enjoy the same ability to wait it out, but they have no choice.

 


* I wonder if the Hague Service Convention is truly applicable here.  By its own terms, the treaty applies to civil and commercial matters only.  Egypt, for instance, at one time refused to serve divorce papers on the grounds that it considered family law outside the scope of “civil”.  Many authorities in Germany reject requests to serve tort complaints from U.S. jurisdictions with split recovery statutes; they consider such actions at least partially punitive/retributive in nature, so quasi-criminal rather than civil.  It seems to me that a denaturalization action is quasi-criminal, quasi-administrative… not wholly civil.  Still, Mr. Arizmendi is no longer a U.S. citizen no matter how you slice it.

 

Coolcaesar via Wikimedia Commons.
Coolcaesar via Wikimedia Commons.

“Right” is an arguable concept in this instance, but bear with me.

Among the alternative methods articulated in Article 10 of the Hague Service Convention is service by “postal channels.”  In other words… good old mail service.  Tthat generally includes private couriers like FedEx, UPS, and DHL, who are just as reliable as (if not more reliable than) the U.S. Postal Service.  The Postal Service actually uses FedEx as its overseas contractor, so most of us just cut out the middleman in the rare instance that we do use mail to serve abroad.*

Of course, I’ve railed before against the inclination to use mail as anything but a last resort.  Regardless of its legal efficacy, mail presents factual challenges (ie: prove it, pal) that may not be so easily overcome.  It only seems the easiest/cheapest/quickest way to go on its face.  Sure, it may be cheaper at the outset, but if it cannot be proven up, not only is the shipping cost wasted, but so too is the time taken up before concluding that it’s not going to work.

But if you must serve abroad by mail—and sometimes you really must—do it the right way.

In his latest post on the very excellent Letters Blogatory, Ted Folkman delves into the linguistic weeds over the meaning of Article 10 in tandem with FRCP 4 and the recent Water Splash v. Menon decision.  Article 10(a) permits litigants to serve by postal channels, absent objection by the destination state (think Mexico, China, Germany, and more).  Water Splash resolves a circuit split to definitively state that 10(a) is not nullified by a drafting error.

But neither of these expressly authorizes mail service.  That is, neither 10(a) nor Water Splash point to the local post office and say “yes, counsel, go there, regardless of forum rules.”

This an incredibly picky distinction, but it’s a critical one.  In Ted’s analysis (with which I agree wholeheartedly), the fact that the Convention permits mail service assumes that it must be valid under forum rules to begin with.  If a particular state’s rules do not specifically empower a litigant to serve by mail in New York or Nevada, then the Convention does not magically make it so in the Netherlands.

Water Splash doesn’t get into the weeds—and Ted rightly criticizes Justice Alito’s otherwise spot-on opinion for avoiding the authorization/permission question.  Then again, Water Splash was a Texas state court case, so the question wasn’t truly at the heart of the dispute.  [Some dicta would’ve been nice.]

Article 10(a) likewise does nothing affirmative.  The text of Article 10 really says that, as long as the destination state doesn’t object, the Convention won’t interfere with a litigant’s use of mail service.  It does not say that a litigant may use it.

But FRCP 4(f)(2(C)(ii) does say that a litigant may use it.  Under certain conditions.

So the question for real practice is this:  how do you do it the right way?  It’s necessary to parse Rule 4(f), particularly 4(f)(2).

Now, 4(f)(1) really just codifies the Schlunk decision—essentially, if the Hague Service Convention applies, adhere to it.  And it uses the word “authorizes”, but that’s fairly useless, because the Convention only authorizes Central Authority service (though I’m not 100% sure it even does that).  Again, it doesn’t authorize mail—it just declines to interfere with it.

So 4(f)(2) is the operative part:  “if there is no internationally agreed means, or if an international agreement allows but does not specify other means…”

Sections (A) and (B)… not really applicable here, because the whole point of the Convention is to define how the destination state wants it done, and render Letters Rogatory unnecessary.  The former puts you into Article 10(b) or 10(c), while the latter is moot in Hague situations.

But (C) is where the rubber meets the road, folks.  Specifically:

using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt

Pretty straightforward stuff there.

The practice tip takeaway… follow 4(f)(2)(C)(ii) and GO THROUGH THE CLERK.

Okay, it’s marginally arguable that you have to.  Okay, the clerk may look at you like you have three heads.  Okay, you might prevail over the defendant’s 12(b)(5) motion [assuming that you can overcome a massive fact problem].

But it’s a hell of a lot cheaper to just do it right in the first place.  Just get the documents together for the clerk, print a shipping label, and hand them the envelope unsealed.  They’ll take care of the rest.


* Sometimes, mail really is the only reasonable option, so my criticism of it is not absolute.  And to be sure, I charge more for mail service that I do for regular Article 5 service– it requires a whole lot more care and feeding.

The Coloseum.
The Colosseum.

The Hague Law Blog isn’t just about nuts & bolts lawyering.  A bit of a deviation today… with an offer you can’t refuse.  At least, not if you like to travel and fulfill your licensure requirements at the same time.

In Missouri and Kansas (and, I’m sure other jurisdictions), this is Continuing Legal Education Crunch Time.  Our credit year ends next Friday, June 30th (with reports due July 31st), and lawyers across both states are scrambling for hours.  They needn’t stress, really, because a cottage industry has been set up around the year-end rush; the CLE office at my alma mater, UMKC Law,* not only offers a host of live programs throughout May and June every year, but webinar and web replays as well.  (See here for the full range.)

But why stress about it at the end of the reporting year?

Why scramble?

Why not get a full year’s CLE hours and see the world at the same time?

Join us in Italy this November.

Peggy and me in Venice during UMKC's 2015 Rome CLE. Did I mention the free days in the middle?
Peggy and me in Venice during UMKC’s 2015 Rome CLE. Did I mention the free days in the middle?

Seriously.  CLE Abroad is the best possible way to do it.  In the morning, a few hours of classes and court visits, led by American and Italian practitioners and scholars, and in the afternoon, a few hours of ruins, museums, and the best cuisine Italy has to offer.

I’m not joking.  This really is the best way to get your hours (I even give a live-version lecture of topics from this blog), see the world, and save a few bucks** in the process.

See program details here.  (And then email Peggy to sign up.)

Vieni e unisciti a noi, amici.


* Full disclosure:  my wife is a professional program coordinator at UMKC’s CLE office, and I worked there during law school (and that first excruciating year after).  This plug is not only shameless, it’s issued with pride.  I wouldn’t be where I am today without having had the opportunity to work there, and I get the good fortune of traveling every year because of it.
** Group travel rates keep the price tag down, of course.  And the question always comes up: “can I deduct this?”  My answer:  “I don’t know.  Ask your tax guys.”

Public beach below 'Quai des États-Unis' in Nice, French Riviera. Myrabella, via Wikimedia Commons. (Yes, this picture was taken in August. All those people are from up north.)
Public beach below ‘Quai des États-Unis‘ (how’s that for irony?), Nice, France.  Myrabella, via Wikimedia Commons. (Yes, this picture was taken in August. All those people are from up north.)

(Hint: foreign holidays trump the judge.)

The prevailing rule: a plaintiff’s lawyer has to get things done in a timely manner (ie: yesterday) or the court gets irritated.  The judge wants a brief before she goes to bed.  The clerk’s office reminds you that they’re closing early in honor of Truman’s birthday tomorrow (in Missouri, we’re just wild about Harry).  It’s on you, counsel, to make sure things get executed in a timely manner, or your case gets kicked to the curb.  But when you’re serving a defendant overseas, you can’t always do that.

Now, it can sometimes be done quickly and under pretty odd circumstances.  My guys in London served a defendant in the midst of massive congestion six blocks from the London apartment building fire last Wednesday—as the event unfolded.  Once in a while, speed is possible, but it can almost only happen quickly in (1) other common law jurisdictions that (2) don’t prohibit the use of a private process server.  Throughout most of the civil law world, service can only be effected by a judicial officer pursuant to a request to a Hague Central Authority.  And depending on where that Central Authority finds itself, service could take weeks, months, even a year or more.  (<– That is not a typo.)

Judge Haller has zero tolerance for your crap.
Judge Haller has zero tolerance for your crap, Mr. Gambini.  He is not a jolly fellow.

To make matters worse, certain holiday seasons extend the wait even more.  Several come to mind, and they can really delay things, even more than the timetable that would normally frustrate the judge.

A little one and three big ones:

(1) The bank holiday

Occasionally, the United Kingdom and other members of the Commonwealth shut down their banking systems and tell the financiers to take a day off, Nigel– the money needs a moment to breathe.  To be sure, bank holidays are a thinly-veiled strategy to maintain religious holidays (Easter Monday, various saints’ feast days, etc.) in a secular way, but still… when speed is called for and possible in common law jurisdictions, things can be derailed a bit.

In a way, some bank holidays are no different from MLK Day or Presidents’ Day in the U.S.—they’re specific to our calendar, and nobody else observes them.  Not a huge delay, but a bump in the road that frustrates litigants who expect service to be effected on an English defendant first thing in the morning.

(2) Août

France shuts down in August.  No, I mean roll up the sidewalks, Margaret, we’re closed.  They have a very un-American view of relaxation time, re-booting the senses, and flushing out all the stress and frustration that make the American economic engine just hum along.  The whole country takes the month of August and goes to the beach.  True, somebody has to work the beach, but they import people for that.  And Pierre, the new guy, gets to stay home and run the shop while the boss and all the other staffers are recharging their batteries.  [Sorry, Pierre, the Americans didn’t get the memo and came to Paris anyway, so someone still has to drive the tour bus.]

What does this mean to U.S litigants who file Hague requests in France?  Simple: your paperwork will be delayed at least a couple of weeks—even if you get it submitted before Bastille Day (July 14th).  If you expect a proof within three months, better make it four in the late summertime.

Christmas Market, Cologne. Daderot via Wikimedia Commons.
Christmas Market, Cologne. Daderot via Wikimedia Commons.

(3)  Weihnachten

Christmas is huge in Germany (and in Italy and Switzerland and throughout Europe, really, but they don’t put the brakes on the procedure like the Germans).  So huge that, contrary to the stereotype of Teutonic efficiency, Germany turns rather French around the middle of December, and they don’t show up for work again until January 7th.  They celebrate all twelve days, complete with the partridges and pear trees and ladies dancing.

Like August in France, tack on another couple of weeks, at least, until you get a Hague Certificate back from German authorities.

(4) 春节 (PRC), 春節 (Taiwan)

The Chinese New Year or, as the Chinese themselves call it, Spring Festival.  Imagine a billion and a half people trying to get home for dinner, all at the same time.  The worst nightmares of U.S. holiday travel are multiplied by a factor of four, because everybody is compelled by tradition and respect and obligation not only to go see Mom, but to go and pay respects to their ancestors as well.  It’s like somebody took Mother’s Day, Father’s Day, Grandparents’ Day, Memorial Day, Thanksgiving, and Christmas, and crammed them together into a two-week party culminating with a Lantern Festival.  It’s big.

Now, to be sure, the Chinese don’t take off the entire two weeks (they espouse the same work-until-you-drop-dead-on-the-factory-floor philosophy that made America great), but it slows things down a bit when you need to file a request for service… they get delayed, much to the chagrin of your judge.

Yet not all is lost.

Federal Rule 4(m) and all but a couple of states provide a safety valve for service outside the United States (sorry, Wisconsin & Michigan—you guys will have to get creative, so call me).  Plaintiffs’ counsel is usually held to a reasonable diligence standard rather than a strict, hard-target deadline for service; a very nice shield against dismissal.  But that doesn’t necessarily keep the judge happy, and it doesn’t necessarily keep clients happy either if they think service should happen in their case just like it does in the movies.


* One more lesser-known holiday:  The Feast of the Ascension.  Latter part of May, forty days after Easter.  It’s a big day in the Christian calendar, but celebrated mostly by Roman Catholics—ardently so in Belgium.  They take the whole week off.