Baggage claim at Schiphol. Image: kevingessner, via Wikimedia Commons.

I flew into this mess on July 24th at Schiphol Airport in Amsterdam.  We sat on the tarmac for two hours waiting for a gate to clear for us, and another half hour at the gate waiting for a qualified jetway driver to provide a means of egress.  Then the real fun started.  Three more hours in the baggage claim area, before coming to the unfortunate conclusion that Icelandair had somehow misplaced my gear.  No worries, I thought.  They’ll get this mess sorted out and bring my suitcase to my hotel in The Hague tomorrow.  My most important meeting isn’t until the next day.

Whoa, was I wrong.  I went to my most important meeting in cargo shorts and hiking shoes that I’d been wearing for three days.  Thank goodness for quick dry fabric and the clean undershirt the airline gave me in a nice toiletry kit.  To this day, they still can’t tell me if my bag was still in Kansas City or if it got misdirected in Reykjavik or if, in the most logical scenario, it was caught up in The Great Schiphol Airplane Gas Station Fiasco of 2019.  (Further research dictates that you must identify a year on such an event, because it seems to happen regularly there.)  It wasn’t until six days later that my bag was finally delivered to me… in England, where I’d ventured for a CLE seminar at Oxford University.

As I was grousing to my wife about the inconvenience– it really wasn’t tragic, as my newly formed Zen Self* had concluded– she mentioned that waiting for my lost luggage sounded a lot like the conversation I often have with my clients from time to time.  Clients who are highly agitated that they haven’t received word that their defendant had been served, and who are beside themselves with stress because procedures are going far more slowly than they thought they should.**

Absolutely, I thought.  That’s an apt analogy.

When a U.S. or Canadian litigator tries to have a defendant served here in North America, things usually go pretty smoothly, in a matter of days, if not hours.  But when the defendant is overseas, things just don’t move as quickly, so patience is not only a virtue– it’s a critical part of staying sane.  Especially in Latin America and the Far East, the wheels of justice grind slowly, and given the mandatory nature of the Hague Service Convention, those same U.S. and Canadian litigators can only just sit and deal with it.  Be Zen, just as if they’re waiting for the airline to get a lost piece of luggage to them.

Why?

Because there’s nothing to be done about it.

Pestering the foreign Central Authority isn’t going to make them move any faster and, truth be told, it might actually make them slow the process down even further.

So a bit of Zen is in order.  Just relax, and have a little faith that it’s coming.

Even the judge is just going to have to chill a bit.

* I recommend this book by a great Glaswegian named Gary John Bishop.  The greatest lesson in that book landed on my head just days before my fateful landing in the Netherlands, providing an excellent opportunity to implement the theory.  In short… when a crummy situation happens, we don’t truly get angry that it happened (it doesn’t help anyway).  We get angry because the situation conflicts violently with our expectations.  Modify your expectations, and the crummy situation is revealed to be not so bad after all.

** I try really hard to advise clients in advance that this is going to take forever.  The advice doesn’t always stick.

Go to Holland and escape that brutal July heat that typifies life in Kansas City, I thought.  It’s always nice in the Netherlands.  That’s why its people are so happy.

Ahem, not this week– although the people here are still just as friendly as ever.  The typically bright and sunny Dutch personality hasn’t waned this week, despite the hottest day EVER in the Netherlands (102.5 Fahrenheit yesterday)* and the fuel system fiasco at Schiphol (Amsterdam) Airport, which I landed smack in the middle of on Wednesday.**

The beauty of this place is striking, especially as I enjoy the house Pale Ale at Instock, right next to the Prison Gate and across Buitenhof from Parliament.  This is a very neat idea, and I stumbled across the place after finding, to my horror, that Hometown Coffee & More, where I first launched this blog three years ago, is under renovation (not closing, mercifully).  Instock’s mission is to reduce food waste by using only remaindered food from one of the country’s largest supermarket chains.  The Pale Ale is outstanding, even though it took me a moment to wrap my head around the fact that it’s brewed from potatoes that nobody wants.  My new mantra: ugly potatoes make outstanding beer.  There.  Your lesson for the day.

I can happily report that The Hague is still a nice place to be, and it’s still carrying a critical mandate: harmonize the world’s legal systems so they can work together, and make the world a better place in general.

* Climate change deniers are idiots– it’s that damned simple.  And their idiocy should be called out at every turn, especially if they hold public office and control policy decisions.  Spare me the moronic snowball arguments (oh, it’s snowing, so climate change is bunk!).  If it’s almost as hot in Amsterdam as in Phoenix, there’s a whole lot more going on than just a freak weather pattern.  The truth, though, is that it’s been very nice, despite the thermometer reading.  Low humidity and ocean breezes tend to mitigate the suffering.

** As of this writing on Friday afternoon, I still don’t have my luggage.  I really want to blame Icelandair, who doesn’t have a digital tracking system (it’s 2019, guys), but there’s no way to know whose problem it is.  I’ve become very zen in the past 48 hours!

Yeah, they had to submit a customs declaration.

On Saturday (July 20th), we celebrated the fiftieth anniversary of mankind’s giant leap, our footfall on the dusty surface of the moon.  Just about every blogger over the age of forty made mention of it last week or over the weekend.  I didn’t, because as great an achievement as landing on the lunar surface was, the greater goal was achieved at 12:50pm EDT on July 24, 1969.  The men who walked on the moon returned safely to the earth, fulfilling President Kennedy’s mandate to do so.  I am very fortunate to have been born during the Apollo era, and even more fortunate to have grown up during an age when space shots were still awe-inspiring.

I watched the first Space Shuttle Columbia launch in my fourth grade classroom.  The Right Stuff came out when I was in junior high.  The Challenger disaster (I was a high school freshman) sadly gave my generation its first shared sense of loss, not to be matched until a bright Tuesday morning in September fifteen years later.

The common thread in all of that: we had heroes once.  Identifiable, known, and despite their real human flaws, inspiring.  How I wish we could get that back.

With the space program in the latter half of the 20th century, we had a shared purpose, a discernible goal as a society and, arguably, as a species.  But we seem to have lost that, too.  How I wish we could get it back.

This isn’t to say we can’t.  I remain convinced that we can– and we must.  A shared purpose is where heroes come from– if we can rediscover one, we get the other.  We have to do the other things; not because they are easy, but because they are hard.  It’s time to start dreaming again.  It’s time to find some heroes again… Neil Armstrong and Gus Grissom and and Christa McAuliffe.  We also need heroes like Janet Armstrong and Betty Grissom and Steven McAuliffe… they’re pretty inspiring themselves.

We need them again.  And we need the sense of purpose they shared.

Just my two cents’ worth on the true anniversary of Apollo 11.

Courtroom 1, Supreme Court of the United Kingdom.

The most critical question in serving a defendant is “WHERE?”  More specifically…

Where is the defendant located?
Where can you serve him/her/it?
Where must you serve him/her/it?
Where in the world is Carmen San Diego?

Today’s cartographic dilemma: The British Isles.  Essentially, two massive islands off the northwestern coast of the European continent– Great Britain and Ireland– surrounded by hundreds of little ones.  The timing today is just right… The Championships 2019 (more commonly known simply as Wimbledon) got underway yesterday and will continue for the traditional fortnight.

The United Kingdom

Ah, where to begin?  Well, for starters, the UK is not a single country or jurisdiction.  Its official name is The United Kingdom of Great Britain and Northern Ireland.  It’s actually four countries, with three distinct judiciaries:

  1. England & Wales are separate countries, but with a unified legal system.
  2. Scotland is entirely separate in terms of judicial structure.  And in terms of culture.  And history.  And temperament.  And… oh, jeez, just watch this, for crying out loud.
  3. Ireland– the island— is entirely separate, too.  But with a decidedly more complicated history.  (We’ll get to this one momentarily.)

Volumes have been written about this stuff, so I won’t go much further– just Google “difference between the UK and Great Britain” (and click through to the videos) for more.  Suffice to say that, although sending a request to the wrong Authority may not derail your case entirely, it can certainly delay it unnecessarily.  If your defendant is in Glasgow or Belfast, but you send your Hague Service Request to London– the Royal Courts will likely just forward it on to the proper venue.  What they probably won’t do, however, is forward your request to serve a defendant in Dublin or Cork.

The Republic of Ireland and Northern Ireland

The Ireland split is where the geography gets really hairy.  I won’t get into the whys and wherefores of Ireland’s division (I remain strictly agnostic as to the politics thereof– for a number of reasons), but it is critical to understand a bit of history in order to understand the geography that drives the procedural requirements of cross-border litigation.

See, for centuries, the whole of Ireland was governed by the British crown.  Just after the First World War, the Irish Free State was created, and after the Second World War, the Free State became a Republic.  Yet the six counties in the northeast of the island remained part of the United Kingdom (see here for elaboration on the partition of Ireland) and saw incredible strife and violence during three decades of “The Troubles“.  With the Good Friday Agreement of 1998, the violence came to an end, and the Six Counties have enjoyed relative prosperity and a cautious peace.*

The Four Courts, Dublin.

Hague Service Requests

Again, I can’t stress enough the critical nature of the defendant’s location.  Here’s the breakdown of the proper destinations for Hague Service Requests:

Easy to avoid delays & rejections with a solid plan.

 

* I fear that the impending departure of the UK from the European Union puts the peace at risk… here’s hoping it doesn’t.

** The Irish Central Authority has historically just not gotten the job done.  If this has changed in recent years, please let me know in the comment section below, because I haven’t had a client choose that avenue when I can be confident that my solicitor will get the job done.

“The Blue Marble”, by the crew of Apollo 17, on December 7, 1972.

The most critical question in serving a defendant is “WHERE?”  More specifically…

Where is the defendant located?

Where can you serve him/her/it?

Where must you serve him/her/it?

Where in the world is Carmen San Diego?*

Let’s face it– we Americans collectively suck at geography, despite the valiant efforts of Carmen San Diego’s creators.  Many of us can’t find Russia or China on a map, but whoa, do we either love or hate them.  Geography has never gotten its due in the educational realm– it’s just something you have to suffer through, like P.E. or Home Ec (both utterly vital to societal health).  It was simply not a priority in the days after Sputnik and Yuri Gagarin frightened the living bejeebers out of us and prompted the first shift toward STEM, and it’s still not a priority.  Consequently, it’s little wonder that even highly educated professionals (I’m looking at you good folks in the practicing bar) today have trouble visualizing where one place sits in relation to another.

I guess I shouldn’t complain.  If everybody knew this stuff, I wouldn’t have a job.  But if you can’t tell me where the defendant is, I can’t get them served.  It’s just that simple.  To go a step further, if you can’t give me a location, I can’t even tell you what options are available to you.

Several geographical distinctions are absolutely critical in determining how to properly serve an overseas defendant, and they all go to the question “where?”

Next week, we begin a new series that focuses less on how to operate under the Hague Service Convention, and more on “the where driving the how.”  The areas we’ll address, in no particular order:

  • The British Isles
  • Canada
  • Switzerland
  • Belgium
  • Israel and the Palestinian Territories
  • China in general
  • The Pearl River Delta in particular

Suggestions about additional places are welcome.  Stay tuned.

* For the record, I was a massive geography nerd as early as five– after all, Uncle Sam sent our family to a far-flung part of the globe called Belgium.  I could name all the capitals of Europe by the age of six.  The Carmen San Diego game didn’t come out until I was in high school, and the TV show when I was in college, so I couldn’t ever say I was a fan– and I really couldn’t tell you a thing about the game or the show beyond “um, yeah, it’s all about teaching kids geography.”

An Alsatian calendar from long ago (it was part of Germany then).  Bibliothèque nationale et universitaire of Strasbourg, via Wikimedia Commons.

Last week, I went on a bit of a rant— my thinking was sparked by a highly informative post by Dan Harris at the China Law Blog, in which he rebooted an older column in Four Essential Principles of Emerging Market Success.  His original (2004) commentary is even more prescient today as manufacturers and investors shift away from China and seek new opportunities in other emerging economies like Vietnam, Turkey, and Indonesia, just to name a trio.  As it turned out, when I read Dan’s update, I had just seen a prospective client walk away from a discussion because he didn’t like the bad news I had to give him.  That news went to the heart of Dan’s thoughts on doing business anywhere abroad, namely: Things will be different. Very different.

Applying those thoughts to what I do, my rant pressed the hard truth that, despite what we Americans might think, other countries do things differently.  Their systems of justice are often markedly different, and their viewpoints almost always divergent from our own.  We American lawyers have an obligation to recognize this fact when we pursue litigation involving offshore defendants and third-parties.

An additional piece of Dan’s advice to business people seeking to operate abroad:  Exercise Extreme Patience.

[E]verything takes twice as long as you think it will. If it takes twice as long in the West, triple that in emerging market countries.

That bit of wisdom has even more bearing on what I do.  But his math doesn’t begin to describe the disparity between American practice and that of our friends abroad.  A quartet of my own posts touch on the issue of time in serving defendants under the Hague Service Convention:

The takeaway from all of those is: relax.  This is gonna take a while, and very often there’s nothing you can do about it.

In our own system, service of process can be done in a matter of hours.  Literally– you can sometimes measure the time from engaging a process server to proof-in-hand with a stopwatch.  But when you’re serving in Germany, Switzerland, or Korea, that stopwatch becomes a calendar.  When you’re serving a defendant in China, India, or Mexico, that calendar becomes two or three calendars: (1) this year, (2) next year, and (3) maybe even the year after.

Point is, attorneys are an impatient breed.  An old friend (a retired Army JAG officer) once called us the most helpless race of people on the planet.  Put those two thoughts together and the long time required to serve overseas drives us nuts, and we want to lash out like a temperamental four-year-old.  We’ve got to get over it, because it can’t be circumvented.

Fortunately, it also can’t be held against us.  As long as we’re reasonably diligent in getting the procedure rolling along, Rule 4(m) gives ample safe harbor.  State doctrine almost always reaches the same result, whether by rule or by case law (sorry, Michigan & Wisconsin… you guys have a challenge).

But we must embrace the fact that the American demand for DO THIS RIGHT NOW OR I WILL HOLD MY BREATH UNTIL I TURN BLUE simply doesn’t fly “over there.”

They just giggle a bit and move our request to the back of the line.  And they know we’ll start breathing again when we pass out.

Ahem… nope.

Ansgar Koreng, via Wikimedia Commons.

 

Supreme Court of the Republic of Cyprus. Seksen iki yüz kırk beş, via Wikimedia Commons.

I say all the time that we ain’t building rockets here.  But we are building a ship of sorts, and a leaky vessel means the cargo may not make it to its destination.  Serving process in Cyprus is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  Cyprus has a rather complicated history, even in recent decades– and the island has been divided between Greek and Turkish ethnicities in the south and northeast, respectively, since the 1960s and ’70s.  Though not as bitter as several decades ago, the division nonetheless remains, and service in the Turkish region may not be as straightforward as in the Greek.  The following focuses mainly on the Greek portion of Cyprus, although Greek and Turkish officials may cooperate to effect service on behalf of foreign applicants.

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

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not confer coercive effect on subpoenas.  Repeat after me—you can’t just SERVE a subpoena in Cyprus.  At least, not if you want it to actually work.  Instead, you have to file a Hague Evidence Request.  Dramatically different from serving a summons or notice.

Here’s how service is accomplished:

Article 5 Service

  • Translate the documents.  Although Cyprus’ declaration to Article 5(3) does not specifically require translation into Greek or Turkish, defendants may reject documents not provided in a language that they understand.  As such, omitting translations could mean failure.
  • 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.
  • Wire €21.00 to the Central Authority in Nicosia.  If your bank is like mine, it’ll cost you more to send the wire than the wire itself.
  • Send the hard-copy USM-94 and service documents to the Authority, in duplicate.
  • Sit tight. It may take a while—likely 3-5 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. If you do select this route, pay particular attention to the venue court’s rules about how mail service is initiated—in federal cases, adhere strictly to FRCP 4(f)(2)(C)(ii).
  • Cyprus also allows applicants to directly avail themselves of judicial officers and other competent persons to serve, but the Cypriot declarations are mute as to who is and is not competent.  Frankly, the Central Authority is pretty good, so I couldn’t strongly suggest going this route.

Cyprus’ declarations and Central Authority information—as well as those of all the other countries 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.

 

NASA photo.

With all the America-First hype swirling about the country, it’s never been more important to remind lawyers that things simply don’t work over there the same way they work here.  Global commerce isn’t going away, folks.  Tariffs notwithstanding, we still need goods from abroad to carry on our daily lives, so it’s still critical to understand the ways in which foreign systems operate.  We still have to sell our stuff abroad, or our economy will collapse in short order.  We still have to get all the K-Pop we can absorb.

Okay, that’s perhaps a bit much.  But still… we can’t just withdraw from the world.  And that means we have to recognize that other countries operate differently.

Last week, I got an email from a grumpy lawyer asking me if I had a guy in China* who could serve papers on a defendant.  When I told him that it doesn’t work that way over there, he insisted that all I had to do was hire a process server to deliver documents to his defendant.  He just wanted to know if I had a guy.

Again, it doesn’t work that way over there, I said.  You have to involve China’s courts in order to properly serve.   That requires a Hague Service Convention request.

His response: well, the case is in Illinois** so Illinois rules dictate how it’s done.

My counter-response, paraphrased:  c’mon, dude, that doesn’t even apply if you’re serving in Florida.

He proceeded to tell me that he disagreed with my conclusions– after I cited no less an authority than Sandra Day O’Connor– and that I didn’t know what I was talking about.

A Rolodex ™. What we used before phones all came with a “Contacts List”.
ArnoldReinhold via Wikimedia Commons.

Which begs the question… if you know so much, why are you contacting me for help?  Because you just want to use my huge Rolodex? 

Essentially, yes, it seems.  We parted ways– no striving mightily, no eating or drinking as friends.  Sometimes it’s better to simply let a prospective client walk away, no matter how valuable their fees might be.

But lest I let my schadenfreude get the best of me, the only way this thing is going to boomerang on him is if the defendant’s lawyer knows better, but such unfamiliarity is widespread– on both sides of the “v” in a case header.  Frankly, the Chinese defendant likely won’t even appear, so the grumpy lawyer will get a default judgment that can’t be enforced… but that’s another post entirely.  In short, his client will pay out a bunch of fees for naught, and that bothers me, because we lawyers are supposed to know better.

Since the start of our trade war with the Chinese, my friend Dan Harris has recognized that attention is shifting away from China to other developing economies.  That’s great for his firm, which doesn’t focus exclusively on China, but perhaps not so much for the ever-spectacular China Law Blog.  Discussing his clients’ moves to Vietnam, Turkey, Indonesia, etc., he reiterated his mantra last week that doing business abroad–anywhere abroad— requires us to jettison our assumptions.

Things will be different. Very different. Things you take for granted in your home country might not exist in the emerging market country. Things you take for granted in your home country might be the exact opposite in the emerging market country. Things you think will be totally different in the emerging market country may be exactly the same. Things you thought you knew about emerging market countries based on what you know from another emerging market country may be completely different in a neighboring country, or even in another region within the same country.

Heck, that even holds true right here at home.  Things work differently in Florida than they do in Illinois.  Things work differently in Missouri than they do in Kansas.  Trust me– I live two miles from State Line Road.  Those Jayhawkers are a tad bit off-bubble.

But it’s always tough to convince American lawyers that judicial systems– and the rules that come with them– are different in other countries.  As much as it might rankle our sense of superiority victory & pride from having defeated the Nazis in 1945… it ain’t all about us, folks.  The rest of the world marches to the beat of a different drummer, and it ain’t necessarily Buddy Rich.

When an Illinois litigator needs to serve a defendant in China, he absolutely MUST adhere to Chinese law.  Rankle or no rankle.  To do otherwise violates our own law.

Justice O’Connor said so.

* Not actually China.  Names have been changed to protect the innocent obstinate.  If it were actually China, I would have also told him that the guy who tries to serve papers personally in China had better be a court official– or he’s going to jail for a very long time.

** Not actually Illinois.  Ibid.

Huawei’s leadership respond to Trump ban.

Big in the news of late:  Huawei and the Trump Administration’s ban.

And from late last month, in the South China Morning Post:  Who controls Huawei? Chinese telecoms leader’s ownership structure explained in more detail.  To hear the SCMP tell it, Huawei is owned and, at least partially, controlled, by the Chinese government.  This control comes by way of a labor union committee’s direct ownership, but that committee is itself state-controlled.  By the transitive property… you get the picture.

So what if Huawei (or any other ostensibly state-owned entity in China) is sued in the United States?  Obviously, jurisdictional questions must be addressed, but before they can be reached, service of process must be effected.  That can only happen pursuant to the Hague Service Convention.  And that can take a looooong time.  But the Foreign Sovereign Immunities Act (FSIA, 28 U.S.C. §§1330, 1602 et seq.) is also implicated.  And that causes more than a few ulcers in the plaintiffs’ bar.

In its press statements this week, Huawei’s leadership has responded to criticism that it is a state-controlled entity, which would give the PRC unrivaled power to snoop on companies and governments worldwide if Huawei equipment provides the backbone of the world’s 5G* rollout.  In short, says the company:  we’re independent.

Okay, let’s take them at their word and assume that to be the case.  An American lawyer sues them in, say, the U.S. District Court in San Francisco.  Said lawyer hires me to submit the Hague request (yes, I do that, dear reader), and we get the documents translated and off to Beijing.  Eighteen months later (yes, it takes that long– or longer), we get a response from China’s Hague Central Authority.  Congratulations, the documents have been served.

Except Huawei’s counsel files a 12(b)(4) motion, claiming that we didn’t follow the Foreign Sovereign Immunities Act (FSIA).  “We’re an instrumentality of the People’s Republic of China, so proper service on us must comport with 28 U.S.C. §1608, the service of process provision of the FSIA.”  And that’s an accurate statement– if indeed the defendant is state-owned.  They might go on to say that we omitted the “Notice of Suit” required by §1608.  A tough one to overcome?

Not really.  Their press claims could be used to directly refute the cite to §1608.  You can’t say on one hand that “oh, no, we’re not state-owned” and then argue on the other that “oh, yeah, we’re state-owned.”

But here’s the kicker:  it doesn’t matter whether they’re state-owned or not.  As long as the plaintiff follows China’s declarations to the Hague Service Convention, FSIA requirements are met naturally.

The Notice of Suit requirement?  Don’t worry about it– and don’t worry about translating the entire Act– because the Notice of Suit is a requirement of §1608(a).  It only applies where the foreign state (or political subdivision) is itself a defendant, and you’re serving that state by mail or diplomatic note.  Instrumentalities (ie: state-owned companies) are covered by §1608(b), which makes no mention of the Notice of Suit requirement.

Hague adherence is, by definition, adherence to §1608(b)(2):

(b) Service in the courts of the United States and of the States shall be made upon an agency or instrumentality of a foreign state:

(2) if no special arrangement exists, by delivery of a copy of the summons and complaint either to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process in the United States; or in accordance with an applicable international convention on service of judicial documents; 

In short, don’t fret over FSIA… it’s really not that difficult.

*  If you’re not familiar with 5G, bone up on it, because it’s going to have a direct effect on everything you do in very short order.

** Be sure to amend the summons to reflect a 60-day answer deadline, rather than the standard 21-day (federal) or other (state) deadline.  28 U.S.C. §1608(d).

Charles Evans Whittaker Federal Courthouse, KCMO. Voidxor, via Wikimedia Commons.

I took Civ Pro from a giant.

When I say giant, I mean in the figurative sense, because he’s only 5’7″ or so, but this diminutive fellow remains among the most talented and effective teachers I’ve ever had.  He inspired me to wear bow ties, and illustrated the myriad types of joinder with a shopping bag full of beanie babies (I’m not joking).*  I grasped counterclaims and cross claims and third party claims pretty quickly– about the only things I grasped quickly as a 1L– because of an effective teaching tool.

The most basic subject he illustrated (sans plush toys), though, is the one that lawyers constantly forget, and which I constantly rant about:  pleading requirements.  In short…

FACT PLEADING

Articulate your causes for action, citing chapter and verse of the statute or precedent on which they’re based, and state facts to support your claims.  Flesh out your argument as best you can at the beginning, or get kicked to the curb.

NOTICE PLEADING

Best described by FRCP 8(a)(2):  “[A pleading that states a claim for relief must contain] a short and plain statement of the claim showing that the pleader is entitled to relief.”

Short and plain.  In other words, don’t get wordy about it.

Attorneys often forget that federal actions fall into the latter category.  That makes for significantly lower costs to serve abroad… if Notice Pleading is actually observed.  In an early post on this blog, I offered some tips in Keeping Translation Costs Down— chief among them being (1) keep brevity in mind and (2) avoid exhibits wherever possible.  I got even more practice-specific a year later in Keeping Translation Costs Down, Part Deux (for Patent Litigators), suggesting that a five- (or six-!) figure translation bill could be limited to just a few thousand dollars merely by referencing easily accessible patents instead of attaching them.

But it bears repeating: lawyers do not get paid by the word.  Translators, on the other hand, do.

Here in Missouri, we can’t get away from lengthy petitions in state court.  We’re a fact pleading jurisdiction, so we pretty much have to put our cards on the table early.  But in federal court, such lengthy pleadings are not only unnecessary, they’re often frowned upon.**  As such, my clients’ translation bills are consistently lower in federal court than in state court.***  And remember– if a defendant is to be served in a country that is party to the Hague Service Convention, odds are that translation will be required.  It is an unavoidable requirement in most of the non-Anglophone world.  So keep it short, and keep translation costs down.

* Jeffrey Berman, Associate Dean Emeritus at UMKC Law.  Still teaching, still hitting the ball out of the park.  And everybody who’s taken his Civ Pro class in the last two decades thinks of a whale and twin unicorns every time they have to join a defendant.

** Which begs another question: if you know you’re going to be removed, why not just file in federal court in the first place?  Yes, there are certainly strategic reasons to stay in a state venue as long as possible (see *** below), but if there’s no way to fight removal when it happens, a whole bunch of costs can be saved by just going federal to begin with.  Most notably, your number of documents to serve will be reduced because your timing is right, but you’ll also avoid lengthy pleading requirements.

*** A big exception to that conclusion: federal courts that require service of ancillary documents, Rule 4 notwithstanding.  Examples: civil cover sheets, ADR program guides, individual judges’ rules of practice, etc.  If they have to be served, they have to be translated right along with the summons and complaint.