Worst starting hand in Hold ‘Em.  You draw this… just fold it, man.

(See the author’s note below for clarification on which Hague Convention!)

A Hague Service Request, commonly known in the United States as a “USM-94” but also used in Canada, can be at once straightforward and daunting.  On the surface, it’s really just a fill-in-the-blank form.  But the devil is in the details, and when hell breaks loose in Georgia, the devil deals the cards.  It’s not as easy as it might seem, for a whole bunch of reasons.*  Yet not all is lost.  You really can simplify things in a couple of ways (yes, we can do it for you, but that’s a separate discussion):

  • Avail yourself of some help on the Hague Envoy platform at usm94.com (shameless plug here).  It’s sort of like using tax prep software in the run-up to April 15th… answer a dozen or so questions, and the system will generate a completed Hague Request form, a sample cover letter, and thorough instructions on what & how to print and where to send everything.
  • Or follow this comprehensive, step-by-step How-To Guide.  I published it back in 2016, and it’s still completely valid, but a Cliff’s Notes version is in order.  Here’s an abridged version of the guide…

Steps in order:

  1. Make sure you have the right version of the form for the country you’re sending it to.  The Hague Conference on Private International Law provides model documents here— in both Word and fillable PDF– in multiple languages.  English and French run throughout, but they also have tri-lingual versions, particularly in German, Spanish, and Chinese.
  2. Fill in the blanks for your name & contact info (by “your” I mean the name of the lawyer who will sign the form) at the top of page 1.
  3. Over on the right, enter the name & address of the appropriate Central Authority in the destination country.
  4. Enter the defendant’s name & address (if you don’t have it, stop what you’re doing and see here), then check box A right below it.
  5. List the documents you need to serve.
  6. Indicate the city where you’re signing it, and date it.  After you print, you’ll sign at the bottom right, counselor.
  7. Leave page 2 blank.  The foreign authority will should use it as proof of service.  [Okay, they do it maybe two times in ten.  The other eight, they just use their own blanks.]
  8. On page 3, enter the defendant’s name & address again, just like you entered it on page 1.  Yes, I know this is redundant.  Do it anyway.
  9. And at the bottom, indicate the legal aid office nearest the court.  Yes, I know.  A massive international conglomerate doesn’t qualify for legal aid.  Do it anyway.
  10. On page 4, enter your name & contact info again, just like you entered it on page 1.  Yes, I know this is redundant.  Do it anyway.  (See a pattern here?)
  11. List the parties as they appear in the case caption.  (If the list is really long, you’re usually okay just listing the lead plaintiff and lead defendant, then say “please see complaint/petition/statement of claim for a complete list of parties.”)
  12. Nature and purpose of the document?  I usually say something like “To inform the defendant of a claim against it and to demand its appearance at court.”  No need to get wordy.
  13. Nature and purpose of the proceedings?  Just give a very brief sentence or two about what the case is about– again, no need to get wordy.  You’re not arguing here.  This is the elevator pitch, like “Plaintiffs accuse the defendant of, inter alia, negligence resulting in injury.  They seek damages, costs, and fees.” **
  14. Date and Place for entering appearance?  That’s the court— not plaintiff’s counsel’s office.  In short, where do they go, and when do they have to do it?
  15. Unless you’re enforcing a judgment or seeking a modification, the next two boxes will be n/a.
  16. Time limits stated in the document?  Just reiterate when they have to appear.
Pocket rockets.  That’s much better.

Of course, there are lots of do’s and don’ts involved here– not the least of which is the minefield that is translation– but nobody has time for that here.  This is merely an overview, so for country-specific perspectives, hit the search bar in the upper right corner of your screen.  For the record, we’re always happy to offer a bit of guidance beyond what’s indicated here and in the original, longer version of the guide, so don’t be bashful.

 

* If it were truly that easy, I wouldn’t have a practice devoted entirely to this procedure.

** I love that phrase, inter alia.

 

Author’s note: I hate to be so pedantic, but it’s critical to know that there’s no such thing as “The” Hague Convention.  The following pertains to requests sent to foreign authorities pursuant to Article 5 of the Hague Service Convention.  This is not a guide for requests under other Hague Conventions– and that’s a vital part of the question, because there are over three dozen of them.  We’re talking here about serving summons & complaint combinations– or citations/petitions depending on forum– as well as subsequent pleadings.  If you’re looking to serve a subpoena, this is also not what you want.  Instead, you want to talk to Ted Folkman about a Hague Evidence Convention request.

 

  1. No.  No, no no… NO.

Stop believing key word results without thinking things through.  Just stop it.

If you Google “Process Server China” a whole bunch of hits come back that would lead you to believe that you can simply hire a guy in Shanghai or Shenzhen or Beijing to walk up to a defendant and serve him.  Heck, there’s even one vendor that says they can handle “Formal Hague” or “informal” service.

No.  No, no no… NO.

Another one says that it can serve abroad for you whether the foreign country has signed the Hague Service Convention* or not!  It just isn’t so, folks.

YOU CANNOT HIRE A PRIVATE PROCESS SERVER TO SERVE FOR YOU IN CHINA. 

PERIOD.

If you don’t believe me, ask this nice lady from Arizona; she’ll give you a straight answer:

Here’s her straight answer: “The present Convention shall apply in all cases… where there is occasion to transmit a judicial or extrajudicial document for service abroad. This language is mandatory…”

I’m serious here.  Lawyers know that taking legal advice from Google is as bad as taking medical advice from Google– every question is too fact-specific to leave it all up to an algorithm, and doing so can be disastrous.  And it’s even worse when your Google search leads you to an abjectly incorrect conclusion of law.  Let me illustrate…

Let’s say you’re in a hurry, you have a grumpy client, and you’re being yelled at by an even grumpier judge.  Your defendant is in China, and you need to get him served tout de suite.**  So you Google “Process Server China” and come to the results list I railed about a moment ago.  Notice something?  Not a single attorney in the bunch.  Just a whole bunch of people who’ve never heard of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), the case that is as critical to overseas service as Miranda is to criminal defense.

Anybody who knows that case– and who is also familiar with China’s declarations opposing the alternative methods under HSC Article 10–knows that there is exactly ONE legal way to effect service on a defendant over there, and it involves a very lengthy wait following a request to the Justice Ministry in Beijing.  That’s it.  You can’t mail it, you can’t email it (contrary to some very bad case law), and you definitely can’t hire a private agent to do it for you– if you do, that guy could be looking at a very long prison sentence for usurping the state’s authority.

But let’s also say you call the process serving agency that lands in the top five (or worse, whoever bid the highest pay-per-click on their AdWords portal) and they tell you it’s no problem getting someone served informally, they do it all the time, and if you’ll just send them a few hundred bucks, they’ll have a proof to you in a few weeks.

Whether that person is here in the United States or in a call center in Hong Kong, don’t buy it.  If you do, your next call should be to your malpractice carrier to make sure you’re paid up on your premiums, because you’re taking bad legal advice from a non-lawyer and potentially injuring your client in the process.

Either follow the HSC or don’t bother filing the suit.

* Hague Service Convention… HSC for our purposes here.

** Or, as many pronounce it, “toot sweet”.  In short, quickly.  Yesterday.  Tick tock, Clarice.  (Unfortunately, that doesn’t exist in China, and there’s no such thing as a service of process emergency anyway.)

No.  No, no no… NO.

Stop believing key word results without thinking things through.  Just stop it.

If you Google “Process Server Mexico” a whole bunch of hits come back that would lead you to believe that you can simply hire a guy in Juarez or Guadalajara or Mexico City to walk up to a defendant and serve him.  Heck, there’s even one vendor that says they can handle “Formal Hague” or “informal” service.

No.  No, no no… NO.

Another one says that it can serve abroad for you whether the foreign country has signed the Hague Service Convention* or not!  It just isn’t so, folks.

YOU CANNOT HIRE A PRIVATE PROCESS SERVER TO SERVE FOR YOU IN MEXICO.

PERIOD.

If you don’t believe me, ask this nice lady from Arizona; she’ll give you a straight answer:

Here’s her straight answer: “The present Convention shall apply in all cases… where there is occasion to transmit a judicial or extrajudicial document for service abroad. This language is mandatory…”

I’m serious here.  Lawyers know that taking legal advice from Google is as bad as taking medical advice from Google– every question is too fact-specific to leave it all up to an algorithm, and doing so can be disastrous.  And it’s even worse when your Google search leads you to an abjectly incorrect conclusion of law.  Let me illustrate…

Let’s say you’re in a hurry, you have a grumpy client, and you’re being yelled at by an even grumpier judge.  Your defendant is in Mexico, and you need to get him served tout de suite.**  So you Google “Process Server Mexico” and come to the results list I railed about a moment ago.  Notice something?  Not a single attorney in the bunch.  Just a whole bunch of people who’ve never heard of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), the case that is as critical to overseas service as Miranda is to criminal defense.

Anybody who knows that case– and who is also familiar with Mexico’s declarations opposing the alternative methods under HSC Article 10–knows that there is exactly ONE legal way to effect service on a defendant down there, and it involves a very lengthy wait following a request to the Foreign Ministry in Mexico City.  That’s it.  You can’t mail it, you can’t email it (contrary to some very bad case law), and you definitely can’t hire a private agent to do it for you.

But let’s also say you call the process serving agency that lands in the top five (or worse, whoever bid the highest pay-per-click on their AdWords portal) and they tell you it’s no problem getting someone served informally, they do it all the time, and if you’ll just send them a few hundred bucks, they’ll have a proof to you in a few weeks.

Whether that person is here in the United States or in a call center in Matamoros, don’t buy it.  If you do, your next call should be to your malpractice carrier to make sure you’re paid up on your premiums, because you’re taking bad legal advice from a non-lawyer and potentially injuring your client in the process.

Either follow the HSC or don’t bother filing the suit.

* Hague Service Convention… HSC for our purposes here.

** Or, as many pronounce it, “toot sweet”.  In short, quickly.  Yesterday.  Tick tock, Clarice.  (Unfortunately, that doesn’t exist in Mexico, and there’s no such thing as a service of process emergency anyway.)

No.  No, no no… NO.

Stop believing key word results without thinking things through.  Just stop it.

If you Google “Process Server India” a whole bunch of hits come back that would lead you to believe that you can simply hire a guy in Mumbai or Bangalore or Delhi to walk up to a defendant and serve him.  Heck, there’s even one vendor that says they can handle “Formal Hague” or “informal” service.

No.  No, no no… NO.

Another one says that its office in India can serve there whether the foreign country has signed the Hague Service Convention* or not!  It just isn’t so, folks.

YOU CANNOT HIRE A PRIVATE PROCESS SERVER TO SERVE FOR YOU IN INDIA.  

PERIOD.

If you don’t believe me, ask this nice lady from Arizona; she’ll give you a straight answer:

Here’s her straight answer: “The present Convention shall apply in all cases… where there is occasion to transmit a judicial or extrajudicial document for service abroad. This language is mandatory…”

I’m serious here.  Lawyers know that taking legal advice from Google is as bad as taking medical advice from Google– every question is too fact-specific to leave it all up to an algorithm, and doing so can be disastrous.  And it’s even worse when your Google search leads you to an abjectly incorrect conclusion of law.  Let me illustrate…

Let’s say you’re in a hurry, you have a grumpy client, and you’re being yelled at by an even grumpier judge.  Your defendant is in India, and you need to get him served tout de suite.**  So you Google “Process Server India” and come to the results list I railed about a moment ago.  Notice something?  Not a single attorney in the bunch.  Just a whole bunch of people who’ve never heard of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), the case that is as critical to overseas service as Miranda is to criminal defense.

Anybody who knows that case– and who is also familiar with India’s declarations opposing the alternative methods under HSC Article 10–knows that there is exactly ONE legal way to effect service on a defendant in India, and it involves a very lengthy wait following a request to the Ministry of Law & Justice in New Delhi.  That’s it.  You can’t mail it, you can’t email it (contrary to some very bad case law), and you definitely can’t hire a private agent to do it for you.

But let’s also say you call the process serving agency that lands in the top five (or worse, whoever bid the highest pay-per-click on their AdWords portal) and they tell you it’s no problem getting someone served informally, they do it all the time, and if you’ll just send them a few hundred bucks, they’ll have a proof to you in a few weeks.

Whether that person is here in the United States or in a call center in Bangalore, don’t buy it.  If you do, your next call should be to your malpractice carrier to make sure you’re paid up on your premiums, because you’re taking bad legal advice from a non-lawyer and potentially injuring your client in the process.  Either follow the HSC or don’t bother filing the suit.

* Hague Service Convention… HSC for our purposes here.

** Or, as many pronounce it, “toot sweet”.  In short, quickly.  Yesterday.  Tick tock, Clarice.  (Unfortunately, that doesn’t exist in India, and there’s no such thing as a service of process emergency anyway.)

I really do love this wee fellow.

The single biggest challenge in my practice is layered– like a cake or a parfait or an onion or… everybody’s favorite grumpy, Glaswegian-accented ogre.

That single biggest challenge has three layers, to be precise:

  1. Managing my clients’ expectations– understanding that all of my clients are attorneys,
  2. Helping them to manage the court’s expectations, and
  3. Helping them to manage their clients’  (litigants’) expectations.

The first of those is pretty simple.  Practitioners get it.  For the most part, attorneys understand that litigation takes a while.  It’s just a part of the business.  They  understand that what happens here in the U.S. and Canada doesn’t happen the same way in Latin America or Asia or even Europe.  [See “Things are different overseas. Get used to it.” and “Things take longer overseas. Get used to it.”]

Judges and court officials, a bit less so.  At the federal level, that’s pretty easy to overcome [see “You’ve got a friend in 4(m).”].  Sometimes, state court officials are a little harder to convince, but it’s usually not excruciating [see “Modify State Court Summons Deadlines. Just do it.”].

But that third layer of the challenge– the litigants themselves– are a tough bunch.  Most of the time, they’re the folks paying the bills, and their view of how litigation should operate doesn’t always jive with the very real pace of the judicial system here on the North American continent.  It’s slow, it’s ponderous, and that lack of speed and agility is frustrating to people who operate in a fast-paced world.  Lawyers must constantly remind their clients– who are rightly frustrated– that litigants cannot control the docket’s pace, and if they try, they bring on the wrath of a very irate judge.

Hon. Robert Sanders, of “jibber jabber” and “poopycock!” fame.

But it’s even worse in other countries.  With a few exceptions (I’m looking at you here, Scotland… you’re brave and quick), the slow/ponderous/frustrating system we inhabit here in the U.S. and Canada is lightning fast compared to the rest of the globe.  Sure, when a litigant is frustrated by the cost or extraordinarily long wait, the smart-aleck in me wants to say “well, you should have picked a different defendant.”  But that’s just not in the cards.  The smart-aleck in me needs to be slapped on the regular, so all I can say is “I understand, but… there’s nothing we can do about it.”

A few years ago, I read an outstanding book* by Scottish therapist Gary John Bishop.**  One of the big takeaways I gleaned from it went something like this (I’m paraphrasing here):

You’re not upset/angry/frustrated because XYZ happened.  You’re frustrated because XYZ’s happening conflicts so violently with your expectations.  Adjust your expectations, bring them in line with a realistic view of the universe, and you’re going to be much less upset/angry/frustrated.

(It sounds even more eloquent on the audiobook in Bishop’s Glaswegian accent.)

That lies at the core of managing litigant expectations.  They rarely come to a lawyer because things are going well.  More often than not, they need us because things have gone horribly awry.  But it’s critical to make sure they understand– right up front– that suing an offshore defendant is a long, costly slog.  If they know at the beginning, it’s a whole lot easier to ease their minds several months into the process.

* The book’s title may offend overly delicate sensibilities.  Not to be overly blunt, but if your sensibilities are that delicate, I suggest you exit the practice of law immediately.

** Bishop– and the Glasgow sensibilities he espouses– are yet another reason I love that place.  Add Billy Connolly and a traffic cone on a statue’s heed, and I’m all in.

The Peace Palace, centerpiece of The Hague.

Let’s dig a little deeper into what that query truly means, because some variation of it pops into my inbox at least once or twice a month, from litigators in both the U.S. and Canada.  There’s a lot to unpack in those eight words, and a few things need to be clarified to get to the heart of the question, but the quick answer is… yes.

So what needs to be clarified?  Well…

  • What do you mean by “the Hague”?  Usually, the person posing the question means the Hague Convention– or more accurately, the 1965 Hague Service Convention.  It’s critical to name the Convention precisely, because rather than “the” Hague Convention, there are about three dozen of them.  Ninety percent of the questions I field like this refer to serving, but there are other important treaties, all signed in the Hague, that pertain to litigation issues.
  • What do you mean by “go through”?  We don’t send Hague Service Requests to the capital city of the Netherlands.  If the defendant is actually in the Netherlands, then we could, although I don’t recommend it (sit tight for why that is).  Instead, we send requests to the appropriate Central Authority wherever the defendant is to be served (that is, in his/her/its particular jurisdiction).
  • Taking that idea a bit further, if by “go through” you mean “go ‘through’ the Central Authority” it depends.  In places like Germany, England, Mexico, and Korea… yes.  Article 5 is your only avenue to service, so your request must be directed to the appropriate Central Authority.  But in countries like Canada, Ireland, and the Netherlands, we can go around official channels and directly engage a “competent person of the State of destination” to effect service.  (In the upper right hand corner of this page you’ll find a search bar– type just about any country and you can determine pretty quickly where you stand.)

Hopefully that clears things up in terms of this common question.  My stock answer is this:

Yes, you have to comply with the Hague Service Convention– but depending on where you need to serve, you may not have to ask the Central Authority to effect service for you.

Jason Sudeikis and Olivia Wilde in happier days. Daniel Benavides via Wikimedia Commons.

Here’s a Hollywood story that’s relevant to Hague Service issues (I promise)…

Late last month, the story broke that Jason Sudeikis had a custody action served on Olivia Wilde while she was on stage, at a public event, announcing her new movie.  In front of a room full of fans and press and industry bigwigs, that’s got to be a shocker, and more than a bit embarrassing.  The Twitterati naturally went berzerk, throwing as much vitriol at the actor as they could muster.

Sudeikis’ emphatic statement thereafter made clear that he hadn’t dictated the methodology, and that he found the process server’s approach to the situation highly inappropriate.

Now, I rarely comment about celebrity news.  Real news is tough enough to keep up with, and anybody who pays more attention to celebrity gossip than to SARS-CoV-2 or Ukraine needs some re-prioritization.  But this one is relevant to my practice.  And I have to hope that it was merely the culmination of a set of unfortunate circumstances (critical to remember: circumstances involving two young children).

After all, Sudeikis doesn’t just play Ted Lasso– he is Ted Lasso.  This fellow is, by all accounts, a tremendously nice guy.  His show has provided a much-needed feel-good experience in a tumultuous time (ie: SARS-CoV-2 and Ukraine).

Here in Kansas City (his hometown), Sudeikis is revered, not only for his portrayal of the sweestest, kindest, and most loveable fellow to ever grace the small screen, but also for his all-in efforts with Big Slick.  That’s the charity he and a couple of other KC comics (Rob Riggle and Paul Rudd in particular) grew from a small celebrity poker tournament several years ago to an annual weekend-long event that raises millions for our local kids’ hospital, Children’s Mercy.  It’s a thing, I tell you.  In this town, we love those guys, so it’s tough to imagine any of them being a litigation jerk.

So back the service of process issue…

The process server the agency sent out may have had no other option.  I’m speculating here, to be sure, but celebrities are frequently surrounded by a phalanx of security people and their homes are highly secured.  It’s tough to get close enough to them in a private setting,* so there really may have been no other way to put the documents into her personal orbit, and he couldn’t have staked out her house to tag her on her way to the supermarket (well, not without running up a huge bill).  Heck, even non-celebrities can be tough to reach– just ask the professional process servers who work for me around the world.

They have to get creative, and I sense that’s what this guy had to do.  It wasn’t Sudeikis’ fault, and it probably wasn’t a matter of Wilde being evasive.  There’s no fault involved.  It’s just circumstance, borne out of a custody dispute.  But fortunately, it was done in a way that their two kids didn’t have to watch.  That’s the positive takeaway from this, and it begs a story.

A few years ago, I was hired to have a U.S. divorce action served on a wife in Germany.  Pretty run of the mill stuff, with an accurate address, all papers in order, no real controversy at work.  But before I even had proof back from the German authorities, my client (the husband’s counsel) called to ask me to yell at the process server.  It seems the fellow who served the papers knocked on the door, and it was answered by the litigants’ 16 year-old son.

“Hey, is your mom here?”

Nein, said the kid.

“Well, would you make sure she gets these?  They’re divorce papers from the USA.”

The son had zero idea that his folks were divorcing.

Now, the fact that they’d lived on different continents for years would tell even the youngest kid that Mom & Dad aren’t exactly chummy.  But I was still mortified.  And yet, it was something entirely beyond my control.

Why?  Because in Germany and dozens of other countries worldwide, service isn’t executed by private agents like the one who placed that envelope at Olivia Wilde’s feet.  It’s effected by judicial officials, most of whom are caring and professional.  But sometimes, they just act without contemplating how their methods affect real people.  And there’s not a thing we can do about it.

An unfortunate circumstance, but true.  My client related to the husband/father that it was a court official– and not our agent– who fumbled the compassion ball so badly and we got some grace out of the deal.  I’d like to think that, until we know more about what precipitated the events, even the process server in Sudeikis v. Wilde should have some grace too.

Coach Lasso would agree, I’m pretty sure.

 

* Author’s note: we have here a case of a journalist not grasping nuanced of terms of art like “trespass”.  From the Los Angeles Times article:

“In a recent interview with People magazine, a family law attorney based in Southern California explained that process servers are instructed to hand deliver legal and court documents directly to the recipient by any means necessary. The papers must be delivered in a public setting (meaning the process server is not permitted to trespass on the recipient’s private property to hand off the docs).”

Well, yes and no.  They don’t have to be delivered in a public setting– unless a defendant’s front porch is considered a public setting (the word “curtilage” comes to mind from Crim Pro), but it’s also not considered trespassing to saunter up the sidewalk and onto that porch to serve.  Climbing a security fence or ramming through a locked gate?  Different story.

 

 

What did you just say, Mister Data?

Very regularly, clients will email me a batch of documents to have served on an offshore defendant and my staff* and I will get to work putting the paperwork together.  Occasionally, a document will jump off the screen at me and make me scratch my head in wonder.

One such itch recently entailed a summons issued by a state court clerk, titled “SUMMONS PURSUANT TO ARTICLE 10 OF THE HAGUE CONVENTION”, for service on a defendant in Korea.

Um, lots to unpack there.

For starters, there’s no such thing as “THE” Hague Convention.  There are about forty of them, so unless you’re more specific, you aren’t really citing anything.

Second, a summons isn’t issued “pursuant” to the Convention.  It’s served pursuant to the Convention, but that’s it.

Third, Korea objects to Article 10, so referencing it at all in the documents to be served threatens to derail the whole project.  The folks in Seoul?  They read this stuff.  They’re smart people– after all, they gave us pretty cool smartphones and this K-Pop masterpiece.**  Oh, and don’t get me started on an amazing thing called Korean barbecue.

But all I can do when I see that sort of thing in a summons or pleading is ask, “who wrote that?”  And then I pray that it wasn’t my client because… wow, awkward.

Nine times out of ten, it’s the clerk’s drafting or it’s only my client’s drafting because “the clerk told me to do it that way.”

Ahem, no.  The fact that a defendant is abroad has precisely NOTHING to do with the way the documents are drafted.  Zip.  Zilch.  Nada.  ZEE-RO.  I can’t stress this enough… NOTHING.

Lex fori dictates what gets served– and I know of no procedural rule in the U.S. that derives its authority from a treaty.  While lex fori dictates what gets served, the Convention and foreign law dictate how it gets served.

One of my best practice tips:

Write up the summons as if the defendant is in Philly, Boston, or Baltimore.

We’ll take it from there.

 

* Take the word “staff” with a grain of salt.  My wife, Peggy, is my office manager, and things run a hell of a lot better around here now that she’s taken on the things that I JUST CAN’T EVEN.  Calling her “staff” is, well, silly.  I just can’t call her the boss lest OCDC rain fire down on my head license.

** Here’s a mind-blower: Gagnam Style came out ten years ago this summer.

(See Part One here and Part Two here. Part Three is linked below.)

An axiom of life was posed to me one day toward the end of my 2L year:

Lawyers are the most helpless race of people on the planet.

This wisdom came from one of my mentors, a retired Army JAG officer who had more than his share of trial experience.  “Seriously,” he said.  “Have you ever noticed that lawyers can’t handle the most minor irritations of life– and we constantly expect someone else to solve our problems?”

After I started practicing, I concluded that he was right– at least, to a point.  But it’s not that lawyers are incapable of dealing with picayune matters.  We’re just so hyper-focused on big problems that we just don’t know what to do with the day-to-day complications of life and practice.  Part of the difficulty in dealing with the seemingly small stuff is this: we have such voluminous reading to do that we forget one of law school’s Cardinal Rules:  keep reading.

A big issue that comes up now and again– the incorrect conclusion that Article 5 is the only avenue to Hague Service.  That was the crux of Keep Reading, Part Three last month.  Those unfamiliar with the Hague Service Convention (HSC) often labor under the mistaken belief that the Convention requires the involvement of the government in the foreign country where the defendant is to be served.  In many places, that’s true– in a fair chunk of western Europe and Latin America, as well as almost all of the Far East.  But if you stop reading at Article 5, you don’t get to the alternative means of service enshrined in Article 10.  And that’s bad if your defendant is in the Netherlands, Belgium, and much of the English-speaking world.  It’s even worse if your defendant is in Hong Kong, where the alternative is sometimes the only viable way to go.

But the validity of Article 10 methods relies on the declarations made by the destination country.  That so many lawyers never get that far is indicative of how little understood treaties really are.  At their core, they’re very simple, with an important caveat.  Treaties are contracts.  That’s all.  They’re binding agreements between two or more nation-states.  Foster v. Neilson, 27 U.S. 253, 314 (1829).

I did not have this guy for Contracts.

Think of all the elements drilled into your head in 1L Contracts class:  meeting of the minds, consideration, adhesion.*  Member states are often referred to in treaty texts as “High Contracting Parties.”  Pretty straightforward concept.  But there’s a twist: where  more than two countries sign on to the agreement, reservations and declarations create different relationships between certain states-party.**  That is, when China signs a treaty with the United States and Canada, it can object to certain articles of the treaty, so while those articles are in force between the U.S. and Canada, they don’t even exist as the relationship looks across the Pacific.  Best example of that in the litigation world: HSC Article 10 (see above).

Point is, just reading the text of a treaty isn’t enough– you have to look to the reservations/declarations made by each member state.  You absolutely must…

Keep reading.

* Seriously.  Contracts of adhesion exist in international law.  After all, how many countries have signed treaties with artillery tubes pointed at their capital?

** I love that term.  State-party and its plural form, states-party.  Translated for civilians: countries that are party to an agreement.

A hat tip to my International Law professor at UMKC.  Fred Green is a retired Army JAG officer (not the fellow I quote above) whose last billet was as counsel to the Joint Chiefs of Staff, and who authored the first draft of the NATO/SHAPE Status of Forces Agreement when DeGaulle sent the Allies packing off to Belgium.  I figured that a guy who had actually written a treaty knew what he was talking about, so when he lectured about reservations and declarations, it stuck.  As it turns out, that treaty governed my family’s presence in Belgium in the late 1970s, so I naturally bought the good Colonel a beer to say thanks for his fine drafting (he’s a UMKC Law alumnus, too, for the record).  That beer (I use the singular to protect the innocent) became a recurring event over the ensuing years, I’m happy to say.  We’ve both lost count, but I think the next round is his.

Cherry. Nothing else comes close to such awesomeness.  Maybe Lime in a pinch.

Back in law school, I was always befuddled by those gunner types who insisted that no legal argument could be made without a case citation. The professor would ask a question and these guys (I use that in the non-gender-exclusive sense) would go thumbing through their casebooks and brief notes to find just the right response, because they’d swallowed too much law review Kool-Aid.

Meanwhile, the nuts & bolts fans among us would pull up a browser page and have an answer from Google far more quickly.

To be sure, I’d never suggest citing Google (or Wikipedia) as an authority, but that’s not the point.  The point is that case law doesn’t have to be the initial step in the research journey.  Every once in a while, I’ll field a question from a potential client (ie: a fellow attorney) and it will have a clear-cut answer.

“I have to serve a defendant in Germany.  Do I have to go through the Hague?”

Yes, I say, setting aside my grumpy reaction to the preposition “through” and the very murky reference to the Service Convention.*

“That’s what I was thinking, but the judge says I have to have a private process server execute service– can you refer me to someone over there?”

Well, the judge clearly doesn’t understand the Hague Service Convention– or the German legal system, for that matter–so send him** a link to my blog How to Serve Process in Germany and he can take judicial notice.

“But I have to have a case that says Germany doesn’t have private process servers.”

No, you don’t.  You need to show the judge why he’s wrong, but that showing can come from somewhere other than a court case.  And nine times out of ten, that can come from the same place you’ll find restaurant recommendations in K-Town (forget the search and just go to Jongro— it’s spectacular) or a GIF of an incredulous Captain Picard.

Start with Google.  Or if you’re not a fan of Larry & Sergey, Bing it.  Try Yahoo.  Heck, even Webcrawler is still alive for those of us who came of age before the dawn of the internet.  But ask a search engine “do they have private process servers in Germany?”  Scroll past the ads and you’ll see that, no, they don’t.

Point is, case law is not the mother lode for legal research– contrary to what law review acolytes insist.  These are the same people who actually argue over whether proper citation requires you to italicize a comma, so remember:

  1. You don’t need a case citation to tell you what the Constitution, or a treaty, or a statute says in plain English.
  2. You don’t need a case citation to determine what foreign law says– in fact, in civil law countries, case law takes a back seat to scholarly articles (they really drink the law review Kool-Aid, but you get the point).
  3. You don’t need a case citation to tell you how a procedure is laid out.
  4. You really can’t use Lexis or Westlaw to properly identify (or locate) your defendant.
  5. And your regular web search may just lead to precisely the case you need.

GTS, y’all.  Srsly.***

* The Grumpy Gus inside my head cringes every time somebody uses the preposition “through”, especially as it pertains that beautiful Dutch city.  We don’t send service requests “through the Hague.”  We send them to the specific country where the defendant is to be served.  We also don’t “go through the Hague Convention.”   We request service pursuant to the Hague Service Convention.  Sorry to be so pedantic, but the wrong terminology really screws things up here.

** It’s always a him in these instances.  Seriously.  Judges who lack the Y-chromosome are far less recalcitrant.

*** GTS:  Google that stuff.

Author’s Note:  Had I gone to law school straight out of college, I wouldn’t have had Google– Larry and Sergey were still undergrads and they hadn’t even started filling out their apps for Stanford.  Instead, I waited until the ripe old age of 37, by which time those two guys had become billionaires and I had a resource that wasn’t a book that outweighed a bowling ball.