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.)

We ain’t building rockets here.  But we are building a ship, or sorts, and a leaky ship makes it tough to get your cargo to its destination.  To make it in Hong Kong, you also need a highly sophisticated motor scooter, and if the bad guys are coming after you with a helicopter, you want a legendary martial arts film star helping you out (no, I don’t mean Jackie Chan… just keep reading).

Serving process in Hong Kong is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  Critical to note is that Hong Kong is very much a part of the People’s Republic of China, and for two decades has been considered a “Special Administrative Region” of the PRC.  For a century before that, it was a British colony, and its legal regime is still very British in nature… common law, solicitors, English-language pleadings & arguments, etc.  The PRC’s declarations to the Service Convention for Hong Kong really just continue the British Hague regime, rather than apply the rules for the remainder of mainland China.

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

Now, for the chase scene.

Personally, I thought Wai Lin was way cooler than Bond. He couldn't have pulled this one off without her.
Personally, I thought Wai Lin was way cooler than Bond. He couldn’t have pulled this one off without her.

Here’s how service is effected in Hong Kong:

Article 5 Service

  • Before you do anything, sift through your pleadings and make sure that you haven’t put Hong Kong on an equal linguistic footing with the PRC.  Or even with New Jersey or Switzerland or Pakistan or… you get the picture.  Simply tack the letters “S.A.R.” (Special Administrative Region) or “(comma) China” after “Hong Kong,” and you’re solid.*  Calling it just Hong Kong, while naming other sovereign states in isolation, will cause headaches for the Hong Kong Central Authority, and they will reject your request as a matter of course.  I suspect that Beijing couldn’t care less, but the fellows in HK are a bit skittish about offending the mother ship.  You’d be silly to tell them they’re overreacting.
  • Translate the documents. China’s Hong Kong declaration to Article 5(3) requires that documents be in Chinese or English.  So, game over, right?  We can 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, depending on where you are, but it’s a bad idea anyway.
  • Service via private agent is available to U.S. litigants under Article 10(b), and it costs more, but runs a whole lot more quickly and with significantly less fuss over linguistics.**  When I talk about it, I feel like “M” (007’s boss).  “Moneypenny, contact our man in Hong Kong.”  I like to think I’m more evolved than Bond’s chain of command, though.  Our woman in Hong Kong is lot like Wai Lin from Tomorrow Never Dies.
If this woman shows up at your door with an envelope, just take it from her and say "thank you, madam." She knows thirteen ways to put you in the hospital for a week, and all of them are better than James Bond can pull off.
If Michelle Yeoh shows up at your door with an envelope, just take it from her and say “thank you, ma’am.  Good day to you.”  She knows thirteen ways to put you in the hospital for a week without killing you. All of them hurt.

All of China’s declarations and Central Authority information—as well as those of every other country in the treaty—can be found here.

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.  Now, if Wai Lin served it, don’t argue.  Thirteen ways


* One exception: if Hong Kong is part of the name of a company, don’t sweat it for that instance.

** The “S.A.R.” distinction is still a good idea if you think you’ll have to enforce a judgment abroad.