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Vladimir Solomianyi, Unsplash

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.

Mail Icon in 3D. Feel free to contact me through email mariia@shalabaieva.com
Mariia Shalabaieva, Unsplash

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.

A harsh reality in the service of process world: once a Hague Service Request gets to a foreign Central Authority, it’s pretty well locked up– especially once it’s been underway for several weeks or months. No amendments can be made, no documents can be added, and no revisions can be made to the defendant’s address. Most of the time, all we can do is submit another Request, which means more costs and longer delays– especially if the thing has to be translated.

Now that said, in some situations, if we have a great working relationship with that Central Authority, we can shoot over an email that says “hey, Bob,* could we add one more doc to the stack on that Request I FedEx’ed to you last week?” That’s pretty rare, but once in a while it can be done. Once in a very long while.

In 99.44% of cases, the window of opportunity is extraordinarily tight, even if we have a Bob to talk to. Once it leaves Bob’s hands, he can’t do anything with it either. The Central Authority hands the process off to a regional authority, the regional authority hands it off to a local authority, and by the time it gets to the front line judicial officer who will serve it, there’s no tracking it, even if the foreign bureaucrats involved wanted to.

The only way to get that “oh wait– one last document” served is to tee up a brand new request, with all of the additional costs that entails, and hit it down the fairway again. But most courts understand what’s involved in Hague Service, so we very infrequently see a great deal of pushback. Judges and clerks understand, by and large, that things just don’t work over there the way they work here, and it’s not our rules that control the procedure.

As such, I recommend holding off until (if) the defendant appears, then serve that thing on opposing counsel.

* Bob is a generic Central Authority guy. No, his name isn’t really Bob. We don’t have many Bobs around the world.

TL;DR… be patient. It’s a process.

Several years ago, I published a pair of posts that are even more important to keep in mind now, in a post-pandemic world:

The spring of 2019 seems like a decade ago when you “carry the Covid”. But the point I tried to make in those posts is even more critical today. Regardless of who sits in the big chair at 1600 Pennsylvania Avenue, the United States continues to withdraw its leadership in the world and, correspondingly, its global security guarantees. This means we’re consciously abandoning many of our prior claims that we can tell everybody else what to do.

So how is that relevant to what I do? Well…

One of my favorite clients referred a colleague to me recently. The colleague engaged us to serve a defendant in Notamerica,* a jurisdiction that allows private service under certain conditions. The primary of those conditions: the Republic of Notamerica determines precisely who can serve, and how those people can serve, within its borders. We can’t hire just anybody to do the job. Notamerica is particularly straightforward and relatively easy in the Hague Service world, but things have to be done just so.

Now, any time a client sends someone my way, I try just a skosh harder to be gentle with reality checks. It’s not just my reputation on the line, but the reputation of the person who thinks highly enough of me to send me business.

When I told the new colleague that it would take a couple of weeks to get the job done, he was incensed. The plaintiff was barking at him to get the litigation underway, so he barked at me to get it done faster. He just couldn’t fathom that service couldn’t be done RIGHT DAMN NOW and insisted that I make it happen.

Sorry, replied I. It just doesn’t work that way. Quoting Archbishop Gilday from The Godfather Part III, I said… we have rules– we have very old rules.

Chief among those very old rules is one that American lawyers must internalize:

We do not call the shots over there.

Wherever “over there” is.

Colleagues, you can only properly advise your client when they go after an overseas defendant if you have the right mindset first (it also becomes much easier to manage expectations). And when you’re dealing with treaty doctrines and offshore procedural rules, that means setting aside any assumption that U.S. standards or expectations apply. A tough pill to swallow for a nation that (1) beat the Nazis, (2) beat the Empire of Japan, (3) established the Bretton Woods Order and the seven-odd decades of relative peace and prosperity that flowed from it, and (4) brought down the Soviet Union without killing a whole bunch of Soviets.

The reality is that we do not call the shots in Ireland or New South Wales or Ontario. And those are places run by people who actually like us. We also don’t call the shots in Guangdong or Anatolia or Caracas, where they definitely don’t like us.

When we American lawyers are more cognizant of how things work overseas, and accepting of the fact that we aren’t in charge, litigating across borders suddenly become a lot less frustrating.

That still doesn’t mean it’s easy, but it’s less frustrating.

* Notamerica is a fictional place, used here to protect the innocent among the practicing bar. Don’t be silly.

For starters, it’s officially been simply Czechia since 2016 (see here). Peggy and I were just there a couple of weeks ago, and even the Czechs still call it the Czech Republic and Czechia interchangeably; admittedly, so do I. What they don’t call it anymore: Czechoslovakia– that nation ceased to exist three decades ago, and frankly, was a made up concept anyway.

Service of process in Czechia is subject to the strictures of the Hague Service Convention.  This holds true regardless of which U.S. or Canadian venue is hearing the matter.  You’ve got three ways to get it done:

  1. Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
  3. If you’re feeling froggy & would like to handle the whole thing yourself, keep reading.  This lays out the framework you’ll need.

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

Here’s how it’s done in the Czech Republic:

Article 5 Service

Article 10 alternative methods

  • Czechia objects to Article 10 in its entirety, so its alternatives are simply off the table.

Seriously—that’s all there is to it.  The method is straightforward and simple.  Czechia’s declarations and Central Authority information 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.  [That actually happened once, with a defendant in Norway, and her lawyers were smart enough to fight the issue.  The Washington Court of Appeals erroneously thought going outside the Central Authority was okay, but their Supreme Court saw the matter differently.]

If you have a chance to visit Prague, I highly recommend it. Simply a wonderful city with wonderful people and scenery, not to mention a very colorful history.

US dollar banknotes
engin akyurt, Unsplash

The Dutch– an exceedingly practical and direct people– have a saying: Goedkoop is Duurkoop. Cheap is expensive. We of the anglophone persuasion have a variation on that theme: you get what you pay for.

But the Dutch version captures reality far more forcefully. Cheap is expensive is an apt way of articulating the constant tension between price and value. That tension pops up its head in everyday household shopping, high-stakes litigation, and everything in between.

Plaintiffs’ lawyers seeking to serve defendants abroad have myriad choices in how to go about getting the job done:

  • They can DIY that thing (I don’t recommend it).
  • They can call their usual process server (occasionally a good idea, frequently a bad idea).
  • They can use a document automation system to fill out the right forms in the right way (shameless plug right here). A sort of “assisted do-it-yourself” option.
  • Or they can hire one of the few lawyers who handle overseas service on a regular basis (wink, wink).

All of those options bring different costs to the party, but choosing the right way necessarily includes a price versus value analysis. I can tell you categorically that my firm will not offer you the lowest price tag. And no, we aren’t K-Mart,* so we don’t price match. I don’t say that out of hubris– I say it because price matching presumes like-for-like, mass produced, fungible goods. That’s not what we provide. [It’s not what translators provide either, but that’s the subject of a different post.]

If you’re a beer guy, you know that Heileman’s Old Style cans cost a third of what a local craft brew costs. If you’re mowing the lawn on a hot Saturday afternoon, Old Style does you just fine (I actually prefer it). But if you’re gathering around a green felt table for a game of cards with some law school buddies later that evening, you want something better (I highly recommend Kansas City’s own Boulevard Pale Ale, but that’s just me). The value proposition is key.

Flying to Seattle for a meeting with a client? Sure, you could fly a bargain airline for $99, but they’ll nickel & dime you for everything from carry-on space to emergency oxygen in case of sudden cabin depressurization. For $299 on one of the Big Three, you get an actual seat belt, a real safety briefing, and if you’re kind to the gate agent, maybe a free checked bag. Even on the same plane, you can plunk down an extra fifty bucks for a bit more legroom (I’m 6’4″ and have to do that anyway) and a bigger cookie at snack time. Again, value versus price tag, based on your needs and resources.

Litigation is no different, really. You don’t want to hire the cheapest expert witness, do you? You don’t want to skimp on printing & binding for your appellate filing (I found that one out the hard way early in my career). And you don’t staff your firm with underqualified people because you can pay them less than you would pay an experienced crew. Those are all critical elements of a litigation practice, and value trumps price tag.

Ultimately, this isn’t something to shop around for, anymore than a litigant shopping around and choosing a law firm whose hourly fee is lower than the firm down the hall.  They choose you (I hope!) because you could provide competent counsel and litigate vigorously on their behalf. 

So why leave your overseas complexities to the low bidder? Or worse, why try to do it yourself? Truly, it may end up costing you more than you think.

Above all– don’t cheap out. Spend the extra money on address investigation in China. Pay a proper translation provider to handle your linguistic work. And for Kresge’s sake, don’t try to serve by email when you know darn good and well where your defendant is located.

Goedkoop is Duurkoop.

* Anybody else miss K-Mart? Blue Light Specials were awesome back in the 1970s, and in the 1990s, K-Mart Store #4465 gave me a great place to work as a college student.

This was long before I was in college.
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Brett Jordan, Unsplash

At least once a month, one of my clients will say “we have a translator that we work with– they take care of us pretty well.” That sets my teeth on edge, because extraordinarily ugly things can result, especially if the translator is merely the lowest bidder but lacks specific legal expertise.

On occasion, the provider is fortuitously somebody I already work with myself, so I’m not concerned. I’m even encouraged– and I’ve even been introduced to some highly qualified providers by such clients.

But less seldom, the client will say they want to handle the translation in-house. That’s a bit like a plumbing company saying they want to handle their own taxes. Disaster usually awaits.

The top variations… with my responses:

  • “Well, we have an Italian lawyer on staff– she can do the translation.” Why in the heck would you waste a lawyer’s time on translation? Lawyers cost more per hour and we’re less efficient at linguistic work than actual, professional linguists.*
  • “My assistant is from Juarez, and she speaks fluent Spanish.” That’s all fine and good, but is she trained in translation? More importantly, does her bilingual fluency also apply to legal vocabulary?
  • “Our mailroom clerk, Timmy,** spent a semester in Paris, so we’re just going to have him do it.” Wow. Do you let him draft your pleadings because he took the LSAT once?
  • “Oh, we’ll just use Google Translate. That should be fine.” Well, thanks for calling, but you should find somebody else to help you because it ain’t gonna be me. Oh, and call your malpractice carrier, because you’re way too fond of shortcuts.

Of course, I understand the budgetary pressures that litigants put on law firms, but translation is a critical piece of the Hague Service Convention puzzle. It should be done by a reputable, professional provider that is not only qualified in the linguistic field, but specifically well versed in legal translation. All those Latin terms of art like res ipsa loquitur and respondeat superior and sua sponte might easily translate into French or Italian, but how about Korean or Lithuanian? Even at that, “vicarious liability” and “joint & several” and “third-party” aren’t even familiar to most English speakers. How could they be familiar to a random translator?

This isn’t something to cheap out on, and it’s the surest way to prompt rejection of your request by foreign authorities. Just don’t.

* A few months ago, I hired a Brazilian attorney to fill a paralegal position until she gets her U.S. license. She’s awesome. Yes, she speaks fluent Portuguese. Yes, she has a professional grasp of legal terminology in both languages. But I would be wasting her talents and our firm’s resources to have her translate the documents we send to Brazil and Portugal (and occasionally Macao!).

** I was Timmy at one time, for the record. Only it wasn’t Paris. It was Caen, Normandy. I hold a Diplôme d’études françaises– “mention passable” (Diploma of French Studies– “woefully mediocre performance”). Along with five bucks at my local Roasterie, that will get me a cup of coffee. It doesn’t mean I’m qualified to translate legal documents.

At long last, the 1965 Hague Service Convention has entered into force in El Salvador. As of today, October 1, 2024, service there is subject to the strictures of the Convention, regardless of which U.S. or Canadian venue is hearing the matter.

Some background 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 pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad. You’ll need a Hague Evidence Convention Request to ask a Salvadoran court to compel production– dramatically different from serving a summons or notice.

Here’s how service is done in El Salvador…

In my estimation, there’s really only one practical avenue to service: Article 5.

Article 5 Service

  • Translate the documents. A Spanish translation is mandated by El Salvador’s declaration to Article 5(3). Don’t omit it, simple as that– even if your defendant grew up in North Dakota and graduated from Yale.
  • 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 several months, perhaps even a year, from submission to return of proof.  The judge is just going to have to accept that fact, because there is no realistic alternative.

Article 10 alternative methods

  • Article 10(a) may or may not be available– we don’t know because no position on the option has been indicated.  But even if mail is legally valid, it’s still a bad idea.
  • Article 10(b) & 10(c) amount to nothing, because if the Salvadoran authorities haven’t declared whether they’re opposed or not, they also haven’t declared who is a “competent person.”

Seriously—that’s all there is to it in El Salvador, but don’t get excited.  Sure, the method is straightforward and simple, but actually making it happen could be anything but easy.  Most countries take a while to set out a workable procedure when the join the Convention, so we may not know how El Salvador does things for quite some time.  

Bonus practice tip #1: if the idea is strategically sound, ask the defendant to waive service.  Note that I didn’t say accept— I said waive.  There’s a very important difference.

Bonus practice tip #2: if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly

At long last, the 1965 Hague Service Convention has entered into force in the Dominican Republic (DR). As of today, October 1, 2024, service there is subject to the strictures of the Convention, regardless of which U.S. or Canadian venue is hearing the matter.

Some background 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 pertain to subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad. You’ll need a Letter Rogatory to ask a Dominican court to compel production– dramatically different from serving a summons or notice.

Here’s how service is done in the DR…

In my estimation, there’s really only one practical avenue to service: Article 5.

Article 5 Service

  • Translate the documents. Just do it. It’s required. I’d also wager that it’s just like the rest of Latin America, in that they’d appreciate having your request completed in Spanish. There’s no such requirement indicated, but it’s still a good idea.
  • 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 several months, perhaps even a year, from submission to return of proof.  The judge is just going to have to accept that fact, because there is no realistic alternative.

Article 10 alternative methods

  • Article 10(a) may or may not be available– we don’t know because no position on the option has been indicated.  But even if mail is legally valid, it’s still a bad idea.
  • Article 10(b) & 10(c) amount to nothing, because if the Dominican authorities haven’t declared whether they’re opposed or not, they also haven’t declared who is a “competent person.”

Seriously—that’s all there is to it in the DR, but don’t get excited.  Sure, the method is straightforward and simple, but actually making it happen could be anything but easy.  Most countries take a while to set out a workable procedure when the join the Convention, so we may not know how the DR does things for quite some time.  

Bonus practice tip #1: if the idea is strategically sound, ask the defendant to waive service.  Note that I didn’t say accept— I said waive.  There’s a very important difference.

Bonus practice tip #2: if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.

squirrel with nut
Dušan veverkolog, Unsplash

Our firm routinely handles service in complex cases involving multiple defendants in multiple countries, nearly always pursuant to the Hague Service Convention. In many of those cases, two or three (or even more) defendants are domiciled at the same address– especially in cases involving several subsidiaries of global conglomerates. One would think that should produce some economies of scale, and in jurisdictions where a private method of service is available pursuant to Article 10(b), that’s usually the case. If my overseas process servers or bailiffs can tag multiple defendants in a single trip, they charge me less, and I pass those savings right along to my litigator clients. And even in what I term “Five-O countries,” where service can Only be effected pursuant to Article 5, we can rein in costs a bit thanks to commonality of the paperwork involved. Having the defendants served at the same address really doesn’t factor into it.

One would also think that, if we have multiple defendants to serve at the same address, they’re going to be served at the same time by the same official, who will generate proofs simultaneously and transmit them back to me in the same envelope.

Except, no. That’s not how bureaucracies work. Sure, it occasionally happens, if every single official in the chain of custody is on the ball. Even a blind squirrel finds a nut once in a while. A broken clock is right twice a day. You get the idea.

More often than not, when my requests land on an official’s desk in Berlin or Seoul or New Delhi, they’re going to get separated and eventually sent to different judicial officers for service. And if Deurwaarder Dave is having an awesome day but Deurwaarder Doug had a nasty fight with his wife at breakfast, they’re probably going to get done at markedly different times. Early last February, I got proof on a request that I’d filed in Korea in September… it had been served in late October. Quick turnaround in my experience.

The one I sent with it? Served at the end of December. Two months after the first one. The Requests arrived in Seoul in the very same FedEx envelope, and the defendants were both housed on their parent company’s corporate campus. Yet they were served two months apart.

This is not to grouse, but to illustrate a little quirk of bureaucracies generally, and Hague Article 5 Service specifically. It’s perfectly normal, and not at all surprising.