We handle Hague Service Requests for lawsuits in courts across the continent, from Puerto Rico to Guam to Nunavut (yes, Nunavut, the Canadian territory way up on the Arctic Ocean.) All of our clients are attorneys and their firms. All. That is an absolute. Occasionally, though, when we send a client an engagement letter, the client will ask us to revise and address it to the litigant. My response:

Sorry, we can’t do that.

Or, more accurately stated, we won’t do that, for a host of reasons.

For starters, I’m admitted to practice in Missouri. End of list. Even though my practice is limited to transnational legal doctrine, that means there’s a less-than-two percent chance that I can advise that litigant without the possibility of a UPL charge. I’d beat the charge (federal issue, after all), but it’s just not worth it.

Second, advising a litigant directly means getting in the middle of an attorney-client relationship. In that situation, I might say something that contradicts what the litigant’s lawyer told them, which could make the lawyer look bad. Even with that lawyer’s fully informed consent and direction, no thanks. I’m not about to cast that colleague in even a glimmer of bad light.

Third, if we take an engagement with the litigant, the litigant might think that I’m his or her lawyer. I’m not, and I don’t want even a hint of a possibility that s/he will think so.

And last, if a litigant engages us directly, that naturally gives the impression that they call the shots and can ring us up and pepper us with questions and tell us what to do. Nope, not gonna do that. My job is to explain relevant/applicable doctrines of international and foreign (many of them arcane and obscure) law to my clients, and then to apply those doctrines to a case in controversy. It’s far easier, and takes significantly less time, to explain those doctrines to attorneys and paralegals who are already up to speed on the domestic law that applies as well.

To be sure, our fees can be paid by a litigant. That’s often necessary just in the interest of expediency. But the ultimate shot-caller, if there are any calls to be made, is the litigant’s lawyer.

Author’s note: I’ve varied from this rule three times in my career. Two of them were unmitigated disasters, and the other was no picnic.

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I’m an insurance lawyer, I’ll never need to serve anybody in a foreign country.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of the Game of Thrones guy into your slide deck!

Wait a sec, there, pal.  It’s likely that you will have to serve abroad someday.  Ever handle a subrogation case?  (Yes.)  Ever sue a manufacturer of a defective product that caused property damage or injury?  (Yes.)  Think Toyota or Krupps or Gree Electric Appliances might be your defendant?  (Hmmmm.)  Bear with me here…

Rule 4 (Fed. R. Civ. P.) and its state analogs will govern your quest, and they start off right up front with service of process. Rule 4(f) specifically incorporates the Hague Service Convention, and even if it didn’t, Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), does.  Schlunk says specifically that if the Convention applies, you have to follow it. And it doesn’t matter whether it’s a divorce or a contract dispute or a subrogation case.

Yet, rejoice, dear colleagues who represent insurors who just want to recoup their losses.  You are under no heavier a burden than the rest of us.  Just pretend you’re trying an injury action or a patent infringement or what have you. There is literally no difference in how you get service effected.

There’s a problem, though:  proper Hague service takes a while.  A very long while in many instances.  And Rule 4(m) says you have to have a defendant served in 90 days or the court has to dismiss the action.*

Except, no.  Rule 4(m) sets out a 90-day deadline for service, but that deadline is also inapplicable to service abroad.

Simply put, if you have to serve a defendant outside the United States, it probably won’t happen quickly.  Sure, we might be able to get it done in England or (Anglophone) Canada within a couple of days.

In France?  Non.  Germany?  Nein.  The Netherlands?  Nee. —>

Okay, maybe a short time in the Netherlands. But in Mexico or China or India?  Not a snowball’s chance in hell.

It bears repeating.  The Hague Service Convention controls how all this gets done wherever it applies.  It’s a treaty, to which the United States is a party, and which entered into force right about the time my mom graduated from high school.  Thanks to the Supremacy Clause, its strictures override lesser laws. A gentle reminder:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  (Art. VI-2)

(Emphasis mine.)

In short, if the judge balks at keeping your case on the docket past Day 90, tell the judge that James Madison & Alexander Hamilton said they have to.

* State rules vary, of course. Many simply track FRCP 4(m), while others allow enlargement for good cause, and what better cause can there be than a crystal clear edict from Justice O’Connor? (Sorry, Wisconsin & Michigan… you’re my problem jurisdictions. In order to reach the same result, y’all have to resort to Equal Protection arguments!)

Short answer: no.

It is what it is, y’all, especially in what I call “5-0” countries. The lack of options is the biggest inhibitor to speedy service, and believe me, if there’s a better way to go, I’m going to sing it from the rooftops.

What do I mean?

Well, the Hague Service Convention essentially offers two viable options, with a sort of hybrid of the two:

• Article 5 service, in which we request the assistance of a designated Hague Central Authority to effect service according to the foreign country’s law.

• Article 10 service– 10(b) originating from the U.S. or 10(c) service from Canada*– in which we directly engage “competent persons” in the foreign country. Think process servers in Australia or judicial bailiffs in the Netherlands.
• Article 5(b) service, in which we ask the Central Authority to appoint our chosen affiliates and agents to get the job done. This is done to get the best of both worlds: speed and control thanks to a private or quasi-private operative, along with the official imprimatur of the state.

The 10(b)/10(c)/5(b) options are what I mean when I say that, if there’s a better way to go, I’m going to sing it from the rooftops. Those are the methods I recommend most wholeheartedly. But with garden-variety Article 5 Requests, there’s often little to sing about. Simply put, do not pass go, do not collect $200. In places like Vietnam and China and Mexico, there’s no feasible way to speed up the process, and that process can take seemingly forever.

There’s no way around that dilemma, contrary to a whole lot of horrible, terrible, no good case law that says “nah, go ahead and do it by email, regardless of what Justice O’Connor says.”

There is hope in a couple of different ways, both to keep the court at bay and (to a lesser degree) to assuage your client’s frustration that it takes so blasted long.

1. There’s safe harbor in every rulebook out there except two– and constitutional arguments can be made about both of those. Most notably, U.S. federal rules specifically lift the ordinary service deadline, so as long as you’re diligent about getting the process started, the court can’t ding you when the local judicial officials in Biên Hòa or Guangdong or Sonora take a year to open their mail.
2. In many countries, like Switzerland and Korea, it takes comparatively little time for proof to come back. No, there’s no valid alternative to Central Authority service, but those authorities get the job done in a relatively speedy manner.

In short, relax. You have to let them do their job.

* Subtle difference between the two here. Simply put, if I direct service of U.S. process in an Article 10 country, I can do it pursuant to Article 10(b) because attorneys are designated as forwarding authorities for the purpose of the Convention. But for me to direct service of Canadian process, it’s 10(c) because I’m not a member of a Canadian law society. But I’m still an interested person under that section.

This is a tough one to explain to civilians (read: litigants), which is one reason we don’t work directly with civilians. Lawyers get it, which is one reason we love working for lawyers, and only for lawyers. Not to sound too much like Henry Hill, but pre-payment is just something we can’t waver from.

Simply put, I absolutely hate having to chase a client down for money. I hate having a relationship sour because of it. I hate thinking highly of a colleague at the beginning and then thinking poorly of that same colleague later when my firm is owed several thousand dollars but we’ve gone two years without being paid.

See, if I can’t get somebody to pay for our involvement up front (with the protection of trust accounting rules, of course) it’s going to be even more difficult prying fees out of them when the work is done. What we do can’t be undone– we can’t un-effect service just because our client refuses to pay, and it’s unethical to withhold proof of service just because we haven’t gotten our vig.

The biggest challenge with many of our larger clients (think AmLaw 200 firms) is just getting the check cut, and if that happens, we’ll start working while FedEx does its thing.* We have great relationships with those firms’ litigators, but those litigators rely on their accounting offices to cut the checks, and the folks in accounting often see no urgency to get a bill paid when the work’s already been done. They’ll get to it when they get to it, and we’re too small an operation to work that way.

Another challenge across the board is “we pay when we’re paid,” essentially meaning that it’s all up to the litigant to cut a check. Again, if I can’t get somebody to pay for our involvement up front, it’s going to be even more difficult prying fees out of them when the work is done. It’s perfectly understandable that the parties’ counsel isn’t willing to front our costs.

It’s just that simple.

(Side note: we don’t take credit cards either. Some of the projects we handle top out in the six-figure range, and to think that Amex or Visa or MasterCard get five grand for a single transaction… no thanks. It’s also (arguably) unethical to pass along those fees to a litigant, so… no thanks. On the other hand, ACH and traditional wire transfers are incredibly simple in this day & age. We do accept those.)

* Notice that I didn’t say “while the post office does its thing”. I hate to say it, but relying on the post office these days isn’t just unwise. It’s irresponsible.

I haven’t written much about this topic except to update a couple of past posts, bringing them in line with recent developments as to electronic service and the Hague Service Convention. Frankly, the developments don’t alter my usual contention a whole lot, but they do provide some persuasive authority for e-service’s use in certain scenarios. It also puts to bed a whole bunch of farcical arguments made by plaintiffs’ attorneys– my people, for the record– who love to find ways around doctrines that shouldn’t be circumvented.

For starters, I contend that serving by mail is usually* just the cheap & easy way out. Yeah, it happens all the time, and if it brings a defendant to the table, great. But as a basis for a default judgment it is, in a word, lazy. Sloppy. Unwise. [Okay, three words.]

And I would extend that to say that service by email is the even cheaper & easier way out, lazier, sloppier, and even more unwise in all but the rarest cases.

We finally have some development– exceedingly sensible development, to be sure– on the compatibility of electronic service, particularly email, and the Hague Service Convention. I owe a huge thanks to Ted Folkman for his fantastic commentary following his attendance this past summer at the Special Commission on the Hague Service and Evidence Conventions. Ted publishes the always-insightful Letters Blogatory and his specific coverage of the event is carried over at the Transnational Litigation Blog. Ted covers the academic/”brief the court”/philosophical aspect of the question. My very presumptive post here takes all of his fine work and distills it into a nuts & bolts checklist. Seriously, your average PI litigator or IP lawyer or family law attorney or (insert litigation specialty here) just doesn’t have the time or bandwidth to devote to this stuff, so here’s the TL;DR: the Special Commission has determined that email is a postal channel.**

As such, email service is legally valid under Article 10(a) of the Hague Service Convention.

But that’s not the end of the analysis. Woe to the litigator who just sees that conclusion and proceeds straight to a 4(f)(3) motion, because it’s still a deeper strategic question than “is email okay under FRCP?” Four big issues:

(1) Article 10(a) objections

Okay, so email is a postal channel. Great. Don’t even think about it in destinations where the state has objected to Article 10(a). If you can’t use FedEx, you can’t use Outlook or Gmail or Compuserv (yes, I have clients with Compuserv addresses– they still drive AMC Gremlins to work and their grandkids are already millionaires). This means that e-service on all those Schedule A defendants in 5-0 countries like China, Vietnam, Mexico, Germany… nein. Das ist nicht gut. Conclusively.

(2) How do you prove it?

But say you’re talking about someplace where 10(a) is acceptable. You’ve got to ask yourself about the last time you answered a read-receipt? For me, it was during the Clinton Administration. Unless the defendant has an out-of-office set up or is so myopic as to actually reply to you, you’re unlikely to have anything to show the court that says “see, your honor? They got it.” Sure, it may be all you have to go on so the court needs to accept a presumption, but when other, more demonstrable methods are available, don’t go this route.

(3) Do you want the defendant to actually show up?

If the only goal is to get a default judgment so you can show Amazon that a product line should be taken down, or so that you can show Customs & Border Patrol that infringing goods should be seized upon entry, then email service is fine. Provided you didn’t serve a defendant with a known address in a 5-0 country, and provided you can prove things up, it’s sufficient. That’s a whole lot of “provided” conditions.

(4) Will you have to enforce overseas?

Okay, let’s say you do get a U.S. judgment, whether default or on-the-merits. What then? If you have to seek enforcement of that judgment in a foreign country’s court, one of the first things that court is going to look at is the manner of service (they all have due process notions too). And while we might contend that e-service is constitutionally valid, they may not, regardless of its validity under the Convention. Remember, it ain’t over until your client gets a check, so don’t just take the cheap & easy way.

Wrapping it all up.

I’ve argued for years that, when other tenable methods of service are available, service by mail is a bad idea. The Special Commission’s determination last summer extends that argument to e-service. Bottom line: it may be the right thing to do in rare cases, but most of the time, it’s not.

* In rare cases, I actually recommend mail and electronic service, usually in non-Hague countries where Letters Rogatory are the only other option. But when there are viable Hague Article 5 and 10(b) channels available, they’re just cheaping out.

** Go to Ted’s commentary to see the arguments for and against this conclusion, because there’s just no room here and his insights are thorough and accurate. Period.