J. Lyman Stone, Esq. of Memphis. (“Bruiser” to his friends– and enemies.)

A few weeks back, a personal injury lawyer in Memphis* called to ask how he could serve a defendant in Switzerland.**   I told him that the Swiss have a fairly straightforward view of the Hague Service Convention, and that there was only one effective way of getting the job done: an Article 5 request to the right Cantonal Central Authority.  No muss, no fuss, you get a proof back in a matter of two or three months.

“But how do they do it?” he asked.

Well, says I, it varies by Canton (not exactly a federal state, but not exactly a county either).  It’s usually a local public prosecutor or some other judicial officer who carries it out.  Frankly, though, it doesn’t matter, because as long as you submit a properly completed Request, the proof the Authority sends back to you is like Kevlar.  Again, no muss, no fuss.

“But do they actually serve it personally on the defendant?”

If he’s home, yeah.  If he’s not, they might try him again later, but in quite a few cases, they slap a Post-It note on his door and tell him to come down to the police station or the post office to pick up a sheaf of documents.  If he doesn’t do it within a certain time frame, they drop the docs in the mail and deem him served anyway.  The philosophy is this: when a judicial officer tells a Swiss citizen to come and get an envelope, they comply.

At that, he told me that wouldn’t fly.  Tennessee rules require personal, in-hand service, so the Swiss would have to do better than that.

Ahem, huh?

He insisted that it’s a Tennessee case, so Tennessee rules control how it’s done, and they would just have to get it done right.  Or we would just have to find another way.

I gently pushed back, reminding him that Tennessee law doesn’t have extraterritorial reach.  Not only that, Sandra Day O’Connor and colleagues said the Convention is mandatory doctrine— you can’t go around it.  There simply isn’t another way; you can’t just hire a guy in Zurich to do it for you. (Yes, you can request personal, in-hand service under Article 5(b). That doesn’t mean they have to do it.)

But he insisted.  Look, I said, this is basic level, 1L ConLaw stuff… the Hague Service Convention is a treaty of the United States.  It overrides everything else except the Constitution.  The Supremacy Clause?  Remember?

And the next question made my jaw drop.

“You got any case law to back that up?”

To back up the proposition that a treaty overrides state law?

“Yeah.”

Um, no, I don’t have any case law to back that up.  I have THE CONSTITUTION OF THE UNITED STATES. 

To break it down into digestible chunks…

Article VI, Para. 2
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, 

(Hey, look!  The Hague Service Convention is a treaty, made under the authority of the United States!)

shall be the supreme law of the land;

(Any questions so far?)

and the judges in every state shall be bound thereby,

(Sorry, your honor.)

anything in the Constitution or laws of any State to the contrary notwithstanding.

(Uh oh.  Roy Moore must just be apoplectic about that one.)

So, no, Bruiser.  Tennessee law doesn’t control how a Tennessee action is served on a defendant in Switzerland.  The Hague Service Convention does.  So in turn, Swiss law does.

And for the record, you’re wrong about your own rules.  Tenn. R. Civ. P. 4A mirrors Fed. R. Civ. P. 4(f), and they both specifically defer to the Convention.  Even if they didn’t, the Convention still overrides whatever state mandates might enter the picture because the Supremacy Clause says so.

So you, counsel, have a golden opportunity to thwart this guy and his B.S. antics if he brings up such a silly argument:

Leo F. Drummond, Esq., also of Memphis.***  He represents very mean people.

The Supremacy Clause is a thing.  And it’s called that for a reason.  Bank on it.

* No, it wasn’t actually Memphis.  Names have been changed to protect identities.  To be sure, this probably isn’t an accurate analysis of Tennessee rules, but that’s beside the point here.  For the record, the image up top is Mickey Rourke as Bruiser Stone in The Rainmaker, which is an absolute goldmine for Ethics CLE programmers, and one hell of a movie in its own right.  Bruiser was Matt Damon’s boss until he had to skip town and avoid a whole mess of trouble.

** Nope.  Not really Switzerland either.  This is illustrative, folks.

*** Yep.  Angelina Jolie’s dad.

 

The Mall, London. Union Jacks galore. “Ed g2s” via Wikimedia Commons.

It’s been a while since Civ Pro class, so here’s a quick FRCP refresher.  A claim for relief– which is to say, just about any complaint filed in federal court– has to be short.  And plain.  See Rule 8.

Rule 8. General Rules of Pleading

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

In other words, NOTICE PLEADING.  Now, if you are fortunate enough to practice in a Notice Pleading state, good on ye.  This stuff applies to your whole practice.  In Fact Pleading states like mine… not much you can do to avoid lengthy pleadings entirely, but still… keep it short, Counsel.  Or as short as possible.

Missing the magic words in Rule 8 is pretty costly when a defendant must be served abroad.  With only a couple of exceptions, translation of service documents is mandatory in any foreign country that (1) is party to the Hague Service Convention and (2) didn’t once have the Union Jack flying over it.  So if you have a 120-page complaint, plan on writing a very large check to the translators– five figures, easy.  If you have seven hundred pages of patents as exhibits, it could be six figures.

Remember that we don’t get paid by the word, but translators do.  There’s a very easy way to keep that translation bill down, and that’s by adhering to 8(a)(2) with a vengeance.

Repeat after me:  SHORT. PLAIN.  SHORT.  PLAIN.

SHORT.  PLAIN.  

Stop it with the War & Peace thing, Tolstoy.

[This post is a mere 253 words long– not counting the rule text.  That is intentional.]

Boeing 787 Dreamliner N787BX. José A. Montes via Wikimedia Commons.

A client emailed me recently with a question that she already knew the answer to, but needed a little affirmation regardless.  The answer to this one is so stunningly simple as to warrant a “hey, am I crazy here, or what?” message, sort of like trying to remember if your wife likes creamy or crunchy peanut butter.  No, really, I should remember, but self-doubt creeps in and jumbles the whole adventure.

Her perfectly reasonable question, paraphrased:

I have an offshore corporation to serve in a federal case, but the company’s president is coming to the States, so I can just serve him here, right?  I heard something about that the first day of law school– somebody served on a plane in U.S. airspace, or some such?

I responded, “Nope.  You’re not crazy.  If the forum court’s rules allow service on an officer within the United States, you’re gold– no matter where the corporation is domiciled*– and the Hague Service Convention is rendered inapplicable.  Federal rules do allow it, and I imagine the lion’s share of state rules (if not all of them) do likewise.”

Specifically, I give you a quick rundown of FRCP 4(h)…

Rule 4. Summons

(h) Serving a Corporation, Partnership, or Association. Unless federal law provides otherwise or the defendant’s waiver has been filed, a domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served:

(1) in a judicial district of the United States:

(A) in the manner prescribed by Rule 4(e)(1) for serving an individual; or

(B) by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant; or

[Emphasis added.  As are all emphases indicated in further rule cites.  Don’t be silly.]

“But wait!” says defense counsel, who hasn’t really thought the matter through.  “This is a (German, Chinese, Australian… pick one) company.  You have to serve it in its home country, and that means you have to go by Hague rules.”

Well, no, it doesn’t.  Not by a long shot.

Rule 4(h) goes on…

(2) at a place not within any judicial district of the United States, in any manner prescribed by Rule 4(f) for serving an individual, except personal delivery under (f)(2)(C)(i).

And, proceeding to 4(f)(1)…

(f) Serving an Individual in a Foreign Country. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served at a place not within any judicial district of the United States:

(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;

Okay, fine.  The Hague Service Convention applies any time you’re serving in a Hague country.  But note the 800-pound gorilla in the room:  if you’re serving the defendant here in the U.S., you’re not serving at a place “not within any judicial district of the United States” (forgive the double-negative).

Male western lowland gorilla from Tiergarten Nürnberg. Altaileopard, via Wikimedia Commons. (This gorilla is domiciled in Germany, you’ll notice.)

You’re serving IN THE UNITED STATES, so the Hague Service Convention…  DOES. NOT.  APPLY.

By its own terms (Article 1):

The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.

If you’re tagging the company president on a Dreamliner** from LAX to O’Hare, you aren’t serving abroad… and there’s no “occasion to transmit” anything.

Sorry, defense-counsel-who-hasn’t-really-thought-the-matter-through.  Your client is on the hook.

* Remember– domicile goes to jurisdiction more than manner of service.  Although the two concepts are closely related, the Venn Diagram only overlaps a smidge.

** The Boeing 787 is my favorite airliner ever, which is saying something, given that I flew on a PanAm 747 when I was five (that was trippy).  The Dreamliner is quiet, it’s comfortable, it’s humidified!  I also have a good friend who is a mechanic at a major American airline (you could just capitalize that last word and add an S to figure out which one)… he hates the “Plastic Princess.”  A maintenance headache, apparently.  Still, a wonderful flight experience from the passenger’s perspective.  And job security for mechanics.

USS Cole, DDG 67.  [U.S. Navy photo.]
Anybody who knows me well… knows my political leanings.  They’re no secret, but they’re usually immaterial to this blog so I leave them out of commentary almost entirely.  Full disclosure– I’m a labor Democrat, as evidenced by my first job after college, staffing a  labor Democrat in the United States Senate.*  It should surprise precisely no one that I disagree with the sitting president on just about everything.  So a couple of weeks ago, my inbox and text messaging app were flooded with “hey, whaddya think of this?” messages on the Administration’s position regarding a lawsuit against the Sudanese government.

In short: “Trump Administration Sides With Sudan Against USS Cole Survivors In Lawsuit”

As much as I love NPR (labor Democrat, remember?), that’s an awfully unfair and inaccurate headline– and it only feeds the fire and ire emanating from the White House Press Office against what they consider fake news.  It’s clickbait.

Now, I hate agreeing with this White House on anything, but here, I have to line up with that side.  [Note to NPR and other left-leaning outlets– particularly Vox: knock it off with the clickbait— you’re just making reasoned arguments more difficult.  Fox News pulls that crap all the time, which is why its credibility is so low outside a hardcore base.]

For starters, the Administration didn’t side with Sudan in the suit– it sided with Sudan on the procedural question of how Sudan was served, which was the correct position to take.  I’ll get to why in a minute.

The saving grace for me (so I can sleep at night while agreeing with the White House) is that the whole idea probably irked the President to no end.  Odds are, this is one of those things they decided not to tell him about before the DoJ’s amicus brief, but if they did, he probably took the knee-jerk/non-lawyer position that NPR took in its headline: the Sudanese are bad people, they played a role in killing American sailors, and they should pay.

The vast majority of Trump’s supporters and detractors (which is to say, everybody, including me) thinks similarly.

But that isn’t how a lawsuit works, and I’m sure someone explained to the President that if Americans can do that to the Sudanese government in our courts, then foreigners can do that to the U.S. government in their courts.  For the record, the Obama Administration took the same position for the same reason.  Both are right.

So how should the plaintiffs have done it?  It ain’t that complicated, really.  The Foreign Sovereign Immunities Act (28 U.S.C. §§1330, 1602 et seq.) lays out a succinct hierarchy of steps to properly serve a foreign government.  Specifically, §1608(a) lists four methods for serving a foreign government, in a particular order (text recycled from my earlier post on the FSIA’s service component):

§1608(a): Government Defendants

  1. If the government has made a special arrangement for service, such as in a contract, follow that arrangement and it’s done.  These are pretty rare, but if the drafting attorneys know about the first item in my big list of Five Things, it might make things awfully easy.  No arrangement?  On to #2.
  2. If a treaty relationship exists with the foreign country, follow the treaty– usually by sending a request to a Central Authority where the Hague Service Convention applies– and be sure to include a translation if called for in the foreign country’s declarations.  Be advised, though, that Central Authorities may refuse to serve their own governments on sovereign immunity grounds, especially if they don’t share the U.S. view of the commercial activity exception.
  3. If that doesn’t work, or if no treaty is in place, try mailing it, as long as the foreign government doesn’t object to mail service in a treaty.   A translation into the foreign country’s primary language is required by the FSIA, and it must be sent by a method requiring a signed receipt.**  Now, you may or may not get that receipt… I wouldn’t bet the farm on it.
  4. If 30 days have passed, and you don’t have a delivery receipt, fill out a Notice of Suit (available from the State Department) and send duplicate copies of everything, including translations, to the State Department for transmittal by diplomatic note.  This is particularly hairy if the defendant lacks diplomatic relations with the U.S.

Now, as to the USS Cole suit against Sudan (the subject of the current controversy), we can kick the first two options to the curb straightaway.  There’s no contract (the claims sound in tort, after all), so no special arrangement exists.  And Sudan isn’t party to the Hague Service Convention, so treaty methods are out, too.

Logically, the Cole plaintiffs went to §1608(a)(3)…

(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned…

Here’s where it gets controversial.  “(T)o the head of the ministry of foreign affairs of the foreign state concerned…”

The Cole plaintiffs purported to serve Sudan by registered mail** at the Sudanese Embassy in Washington, D.C.

Oops.

The NPR article was clear to point out that the “question is one that only a lawyer could love,” but the simple fact is that lawyers fumbled this one, and that’s why the families involved are going to have to go back to square one.  Plaintiffs’ counsel didn’t dig a little deeper into the statute to make sure they were doing it right.  For the record, I don’t know who represented the plaintiffs here and, frankly, I don’t want to know, but they should have called in some outside help.

This is a pretty straightforward question, and one I suspect the Supremes will decide on a lopsided (8-1?) vote.***  It all boils down to this: The Sudanese Foreign Minister isn’t resident in Washington.  He’s in Khartoum.  And even when he is in Washington representing his government, the Vienna Convention on Consular Relations will thwart service on his person.  All the plaintiffs had to do here was to send the summons and complaint from the Clerk’s office, by courier, requiring a signed receipt, to the Foreign Minister in Sudan.  Yes, that would have probably failed, but §1608(a)(4) provides a final– and nearly always workable– method of serving by diplomatic note.

This isn’t a case of the Trump Administration screwing over a group of grieving Navy families.  This is about proper lawyering, and what can happen when a seemingly innocuous procedure isn’t given the attention it requires.  Service matters— even if Vox minimizes its importance in a snarky subtitle.****

 

* This is not bragging.  Regardless of party, Capitol Hill staffers are notoriously underpaid, have thankless jobs, and in many cases, see their Congressional work become roadblocks to later job possibilities in the private sector.  It ain’t a glamour detail.

** I wonder if the Clerk of Court was involved, as it must be under FRCP 4(f)(2)(C)(ii), but that’s not the issue here.

***  Thomas, J. in dissent, maybe.

**** “It centers on where to send legal papers. Seriously.”

La Belle Équipe, Rue de Charonne, Paris 11. Yes, it’s that busy. All. The. Time. (Photo from the cafe’s Facebook page.)

We just got back from a ten-day CLE conference in Paris, the timing of which was rather unique.  Not only did it fall on the centennial of the Armistice, but it also marked the third anniversary of the horrific terrorist attacks of November 13, 2015.  Most of the carnage of that evening took place in the 11th Arrondissement, Paris’ most densely populated district.  The Bataclan– in the 11th.  The Comptoir Voltaire– in the 11th.  La Belle Équipe– not just in the 11th, but a mere two blocks from our hotel.

Without even realizing where I was, I had drinks with some friends at the Belle Équipe last week.  It was only on Monday night, as the streets began to be cordoned off by police, that it occurred to me… this was where it happened.  Nineteen people gunned down in an attack coordinated to take dozens— even hundreds– more lives.

As our bus rolled away from the hotel in the wee hours of the morning, preparations for a memorial gathering (thus the police cordon) at the Équipe were being wrapped up.  A group of American lawyers were headed home to our families, but every single one of us was acutely aware of the resilience of the neighborhood that hosted us.

They bounce back, Parisians do.  There’s a lot to be said for that.

Tijl Vercaemer, via Wikimedia Commons.

PARIS — To my great disappointment, I cannot attend the ceremonies today at the National World War I Museum in Kansas City.  In April, 2017, the museum’s commemoration of the U.S. entry into the Great War was fantastic, and today will, I imagine, be even more touching and momentous– I’m sad to miss it.  Yet what better place to be on the centenary of the Armistice than in Paris, the capital– and the heart– of the French Republic?

None.  Not my adopted hometown.  Not even Arlington.

It’s been raining– and will continue to do so all day– rather fitting weather, if you ask me.  The conflict that was to have ended war for all time was merely the preface to an even greater conflagration.  And what have we learned?  Not as much as we like to think.  So many of us remain stuck in a xenophobic, isolationistic mindset, without realizing that the only road to a peaceful world is through engagement with “the other”, through acceptance of other cultures and races and viewpoints, even if they make us cringe.  The benefits of engagement are too great to tally, and the price of pulling back measured in the saddest of statistics: lost lives.

Yet there’s a whole lot of wonder still remaining in this world.  Much cause for hope, much reason to be optimistic.  So long as we remember the loss of a century ago.

With that, I leave the real sentiment of the day to LTC John McCrae, M.D., of the Canadian Medical Corps…

In Flanders fields the poppies blow
Between the crosses, row on row,
    That mark our place; and in the sky
    The larks, still bravely singing, fly
Scarce heard amid the guns below.
We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
    Loved and were loved, and now we lie,
        In Flanders fields.
Take up our quarrel with the foe:
To you from failing hands we throw
    The torch; be yours to hold it high.
    If ye break faith with us who die
We shall not sleep, though poppies grow
        In Flanders fields.
Den Haag Centraal Station, seen through the new Dutch Ministry of Foreign Affairs.

DEN HAAG, NEDERLAND– Two years ago, I sat in this very room at Hometown Coffee & More, sweating the fact that I was about to launch what I hoped would be the key to my business.  As I clicked “Publish”, this blog was born.  And what a ride it’s been.  Without a whole bunch of guidance and encouragement from some amazing lawyers and other professionals, this wouldn’t have been possible.  Some thanks are in order, most notably to Dan Harris of the China Law Blog, Ted Folkman of Letters Blogatory, and Peggy Lukken of, well, of the sort of women that only happen once in a generation.

And a huge word of gratitude to the Permanent Bureau of the Hague Conference on Private International Law– folks who take time out of an incredibly demanding diplomatic calendar to lend a hand to practitioners like me.

Most of all, I thank the lawyers who are kind enough to follow my posts here, comment on them– positive and negative, find me on Google & use what I’ve posted, and in many cases call me up and hire me to carry water for them in peculiar areas of civil procedure.

Live from Den Haag…

On that subject, I must highlight three treaties that are critically important to American litigation: the Hague Service, Evidence, and Apostille Conventions.  But I also want to make a prediction: in the next several years, two more will make an impact on family law in the U.S.  The Child Abduction and Child Support Conventions are not widely known or understood, and it’s my goal to come back to Home Town Coffee in two years and say I lived up to my plan to highlight and publicize them to litigators back home.  Family law is an often thankless business, often focusing on the worst part of people’s lives.  I want to do what I can to lessen the blow at least a little bit.

I hope you’ll come along for the ride.  Thanks for being here over the past two years.

 

 

This afternoon, I will have the great pleasure of lecturing in Paris on UMKC’s CLE Abroad program,* along with my good friend and colleague Micah Wells.  Micah is one of those legal entrepreneurs you’re always hearing so much about, but with a decidedly unique arena: economic development across Africa.  He really is a juggernaut, and to be listed on the same bill with him is a high honor.  Y’know how James Bond’s boss, M, is always saying something like “contact our man in Hong Kong”?  Well, Micah is our man in Germany.  And Switzerland.  And Djibouti.  (You cannot make this stuff up.)

Our presentation topic is truly too broad for a single hour’s worth of CLE ethics credit, but we’ve focused the discussion on a few points that are applicable not just to guys like us whose practices cross borders, but any lawyer in North America whose clients’ issues cross borders.  And I’m here to tell, you, that’s everybody in the practicing bar.

Issue 1:  Be competent.

Yes, yes, we all know this one.  A traffic lawyer shouldn’t be handling a murder case, and a public defender shouldn’t draft his neighbor’s new LLC operating agreement.  But those are simplistic examples.  A divorce attorney has to serve her client’s husband wherever he is, but she also must understand that she can’t serve the guy in Mexico by mail.  She might need to outsource that function in order to actually be competent in the representation.  [See MRPC 1.1, 1.3, 1.4(a)(2), and 2.1.]

Issue 2:  Take reasonable fees.

If it takes a patent litigator four hours to research how to extract evidence from an offshore third-party, but still can’t make it happen, is it reasonable to bill her client for that research?  Maybe, maybe not.  But if she brings in someone better versed in the proper procedure, the cost to the client could be significantly lower.  [See also Issue 1… and MRPC 1.5.]

Issue 3:  Collaborate (or… know when to refer out, outsource, etc.).

This is a tough sell for litigators of all stripes– especially Mr. Incredulous Big Firm Partner from an earlier post (The Golden Opportunity of Efficiency).  The simple fact is, unless the attorney handling the case deals regularly with transnational issues, the client’s best interests are likely better served by bringing in a hired gun.  Just make sure it’s done properly, and with the client’s knowledge.  [See MRPC 1.6, 1.7, 1.8, 5.1, 5.2, and 5.3.]

Issue 4: Supervise Your Foreign Colleagues Effectively

Sooner or later, you will have to have somebody in another country handle something for you.  That creates a huge challenge of trust, but often one that cannot be surmounted, but if Singaporean law is going to govern how something gets done, your performance on the UBE may not fulfill your competency requirement (Issue 1).  You don’t have local counsel in Singapore?  Fine– call around.  Hit up Google for some assistance.  Know that U.S. diplomatic missions keep a list* of local, U.S.-friendly attorneys who have indicated a willingness to help.  [See MPRC 5.1.]

Notice the common thread here… outsourcing.  It all ties together with outsourcing.

Simply put, Atticus Finch*** could handle the breadth of most litigation in 1930’s Alabama.  He’d know better today.  Saul Goodman in the modern era, well… I wouldn’t bet on it.  Mr. Finch nowadays would readily recognize the need to rely on outside experts, even if his case is heard in a small town courtroom before jurors in overalls.

 

* Yes, a shameless plus for UMKC CLE Abroad and the concept more generally, but this really is a great way to explore the world while fulfilling a licensure obligation.  I highly recommend it, no matter your practice area.

** Found on each U.S. Embassy website– including the one for Paris.  Simply go to the respective Legal Assistance page and scroll to “Attorneys”.   Many lists indicate not only practice-area specifics, but also whether that foreign lawyer is admitted here in the U.S.  I’ve had pretty good luck finding top-flight colleagues this way.

*** Mockingbird Atticus, not Watchman Atticus.

“Worried People,” Pedro Ribeiro Simões, via Wikimedia Commons

Plaintiffs’ attorneys are universally motivated by a single factor: making their clients whole. As a result of that, tortfeasors are held accountable– and hopefully they correct harmful behavior– and the world is made a better, safer place.  Sure, there’s a seemingly massive amount of money to be made, but most trial lawyers are firmly rooted in the middle class.  Doing well, but not spectacularly so, unless that one big unicorn of a case comes along.  Even the stars of the plaintiffs’ bar got to be stars only because the right client (the unicorn) walked into their office one day long ago.

In chasing the unicorn, we sometimes get into a case that will eventually lead nowhere, only draining firm resources.  We don’t even need to chase the mythical horse to get into an impossible case, especially if the defendant is located abroad.  

  • We see, in that chair across the desk, a fellow who’s been hurt, and our natural inclination is to go after the bad guys and make the poor fellow whole. 
  • We know a lawyer in Kansas City who can get the offshore defendants served (hint, hint).
  • We know we have a good shot at empaneling a sympathetic jury. 
  • We think we can win.

But two critical questions often get missed, only to be asked after filing and after hiring somebody like me to deal with the initial due process concerns (or worse, wading into the fray alone).  One focused on the beginning, and the other focused on the end:

  1. How do you establish jurisdiction?  (The one we hit last week.)
  2. How do you get paid? (The one we’re discussing here.)

Both are tougher than you might think.  And both are best illustrated with a hypo (pretty straightforward stuff): 

A young fellow and his new wife escape the brutal Iowa winter and go to the tropics on their honeymoon.  While he’s walking through the hotel lobby from the beach to the buffet, he doesn’t notice a puddle of water on the floor.  Apparently, neither does the staff.  As the guy steps through the puddle, his feet slide from beneath him, and he cracks his head on the floor.  Honeymoon ruined, medical bills amassed, work missed… a textbook slip & fall case. 

By all accounts, a lawsuit is in order, so he seeks counsel.

The most important issue in whether a lawyer takes the case:  where did it happen?

Well, if it’s in Florida, things are fairly simple– sue in Florida (unless the guy bought a package deal that the resort advertised in the Des Moines Register).  But what if the resort is in the Dominican Republic, or Thailand, or Sri Lanka?  What if he booked the trip directly through the resort’s website?

Jurisdiction

[Elaboration… see last week’s post here.]

In short, we’ve got to make sure the case will even be heard in the first place, so determining proper jurisdiction is critical.  And then, once it’s been heard and a judgment won, what comes next?

Enforcement (ie: Getting Paid)

The dicey one.  The one for all the marbles.  Where the rubber meets the road.  Where the buck stops.

Okay, I’ll stop with the goofy clichés. But this is really the most important analysis– how do we turn a judgment into a check that will clear?  If a losing defendant’s assets are all in foreign lands,* an American court can’t just reach out and grab the assets like it can here.  The plaintiff must ask a court in the foreign country to issue an order forcing the defendant to cough up the cash.  That’s a tough sell in a world that views U.S. litigation in such a negative light.  Not all is lost, but this is the analysis that should come at the beginning of a case– when the prospective client is sitting in the chair– not at the end.

The foreign court will take, essentially, a two-step approach.  Of course, this is a gross oversimplification, but the foreign court will look first at whether the judgment should be recognized.  That is, it will ask whether service was properly effected (the easiest part to screw up– and the easiest part to undertake properly with help), whether jurisdiction was proper, whether evidence was appropriately gathered.  Procedural stuff with some substance thrown in.

Then, once the judgment is recognized, the foreign court will analyze whether enforcement would violate its own public policy and– if not– whether a mechanism in its own law allows it to compel payment… in all, whether it has the power to enforce.

It all boils down to comity, because there is no treaty in force that compels any court anywhere in the solar system to enforce a U.S. judgment.  And what a waste it would be to go all the way down that road to be told “no”.

So, back to our Sri Lanka beachgoer… what of him?  Imagine going to all the trouble to hale that resort into an Iowa court, just to have a judge in Sri Lanka giggle at you while he signs the denial.  Not a good result.

It might have been better to just sue in Sri Lanka.

* Best case scenario: joint & several liability, with one or more U.S. defendants or foreigners holding U.S. assets.

Spoiler alert: a few goofy football analogies lie ahead.

Plaintiffs’ attorneys are universally motivated by a single factor: making their clients whole. As a result of that, tortfeasors are held accountable– and hopefully they correct harmful behavior– so the world is made a better, safer place.  Sure, there’s a seemingly massive amount of money to be made, but most trial lawyers are firmly rooted in the middle class.  Doing well, but not spectacularly so, unless that one big unicorn of a case comes along.  Even the stars of the plaintiffs’ bar got to be stars only because the right client (the unicorn) walked into their office one day long ago.

In chasing the unicorn, we sometimes get into a case that will eventually lead nowhere, only draining firm resources.  We don’t even need to chase the mythical horse to get into an impossible case, especially if the defendant is located abroad.  

  • We see, in that chair across the desk, a fellow who’s been hurt, and our natural inclination is to go after the bad guys and make the poor fellow whole. 
  • We know a lawyer in Kansas City who can get the offshore defendants served (hint, hint).
  • We know we have a good shot at empaneling a sympathetic jury. 
  • We think we can win.

But two critical questions often get missed, only to be asked after filing and after hiring somebody like me to deal with the initial due process concerns (or worse, wading into the fray alone).  One focused on the beginning, and the other focused on the end:

  1. How do you establish jurisdiction?  (The one we’re discussing here.)
  2. How do you get paid? (The one we’ll discuss later.)

Both are tougher than you might think.  And both are best illustrated with a hypo (pretty straightforward stuff): 

A young fellow and his new wife escape the brutal Iowa winter and go to the tropics on their honeymoon.  While he’s walking through the hotel lobby from the beach to the buffet, he doesn’t notice a puddle of water on the floor.  Apparently, neither does the staff.  As the guy steps through the puddle, his feet slide from beneath him, and he cracks his head on the floor.  Honeymoon ruined, medical bills amassed, work missed… a textbook slip & fall case. 

By all accounts, a lawsuit is in order, so he seeks counsel.

The most important issue in whether a lawyer takes the case:  where did it happen?

Well, if it’s in Florida or Hawaii, things are fairly simple– sue in Florida or Hawaii, unless the guy bought a package deal that the resort advertised in the Des Moines Register.  But what if the resort is in the Dominican Republic or Sri Lanka or Mauritius?  How about France or Greece?  What if, instead of using a professional travel agent, he booked the trip himself, directly through the resort’s website?

Establishing jurisdiction is going to be tough.  Enforcing a judgment is going to be even tougher.

Jurisdiction

The Nine Wise Souls haven’t had a completely cohesive view of personal jurisdiction in ages.  When I studied the issue in Civ Pro a few years ago,* the most current case was Asahi, and even there jurisdictional analysis was a maze of contradictions in a somewhat-plurality opinion.  Since that time, more opinions have come down from One First Street, but they don’t lay out a test to replace Asahi or the International Shoe/Worldwide Volkswagen line of holdings (essentially, purposeful availment, stream of consciousness commerce, etc.).  Consequently, state courts and lower federal courts are still all over the map in dealing with the issue.

Yeah, I’m like Sinbad.

Now, to be sure, I’m not up to speed on those SCOTUS decisions.  I just don’t have the emotional or intellectual stamina to navigate the labyrinth, and fortunately, I usually don’t need the answers; I’m a support lawyer, rather like the special teams coach or the really funny sidekick from Necessary Roughness (Sinbad).

But I can tell you that an Iowa court is probably not going to assert jurisdiction over a hotel in Sri Lanka when that hotel hasn’t actually marketed itself in Iowa.

If someone from Iowa is injured in Iowa, they naturally would sue in Iowa.  Not much controversy there.

If someone from Iowa is injured in Alabama, then Alabama may be the right place for the case to land unless the defendant has a connection in the Hawkeye State.  Even if Iowa could assert jurisdiction, forum non conveniens is still a thing, so the tide might roll right back to where the stars fell.  Conflict of laws analysis will tilt the decision one way or the other.  

But before a lawyer should take any case, s/he must first determine if the case can actually stay in the court where the plaintiff wants it filed.  Yes, this is all 2L-level stuff.*  But many of us are so focused on the adrenaline of the Super Bowl that we miss sight of the twenty-some weeks leading up to it.  We miss sight of that first kickoff in August.

Simply put, we’ve got to make sure the case will even be heard in the first place, so determining proper jurisdiction is critical.  And then, once it’s been heard and a judgment won, what comes next?

Enforcement (ie: Getting Paid)

Stay tuned for Part 2.

* Weird lawyering experience #473:  I basically live in FRCP 4 (Summons).  My practice is all about Civ Pro.  I gave a CLE presentation in Paris in 2016; a room full of American lawyers gave me their attention as I described the ins & outs of the Hague Service Convention and its application in France.  On my left sat a fellow who recently retired as an associate dean at UMKC Law.  On my right sat another associate dean from UMKC Law.  When the words “Federal Rules of Civil Procedure” came out of my mouth, it dawned on me that these were the guys who taught me the rules– CivPro 1 and CivPro 2 respectively.  No pressure, Aaron.  No pressure at all.