Congratulations. Your USM94 has arrived and you’ve fulfilled your obligation relative to the Hague Service Convention. Whether you’re a client who has retained us to file an Article 5 Request on your behalf with a foreign government, or you’re one of those intrepid do-it-yourself* practitioners who has decided to, well, do it yourself… here’s what comes next:

Wait.

Seriously, that’s all you can do. Now that you’re on file in Beijing or Berlin or Bogota, you’ve done everything possible, and you’ve fulfilled your duty. From here, it’s all in the hands of a foreign sovereign. But here are some pertinent posts to offer perspective for you on what’s coming down the pike:

And even above that, know that we’re here for you.

Even when we’re taking the kids to the beach.


* Sure, I’m obviously biased, but I contend that going it alone is usually a bad idea– and even if you get it right, it’s costing you more than you think.

Another frequently asked question we get here at Viking Advocates is how much extra time an overseas defendant gets to answer.

A very easy reply: None. Nada, zip, zero, zilch.

But opposing counsel contends that they get 90 days because of the Hague Service Convention, says my client.

Ahem, no, says me.

The Convention merely governs how process* is served. It says nothing whatsoever about the conduct of the litigation itself. That question goes back to the rules of the court hearing the case. In short, if the summons says the defendant must answer in 21 days, he gets 21 days, period. It doesn’t matter that he’s served in the Republic of Notamerica. If the summons says he gets 30 days, he gets 30 days. It doesn’t matter that he’s served in the Republic of Notamerica. There’s no variance on that.**

So where did opposing counsel get the crazy idea that the answer deadline gets extended? In all likelihood, he’s conflating actual service abroad (pursuant to the treaty) with waiving service at the plaintiff’s request.*** I give you Rule 4(d)(3)…

  • Time to Answer After a Waiver. A defendant who, before being served with process, timely returns a waiver need not serve an answer to the complaint until 60 days after the request was sent—or until 90 days after it was sent to the defendant outside any judicial district of the United States.

Two things have to happen for that 90-day grace to kick in: (1) the plaintiff has to actually request it, and (2) the defendant has to actually waive.

If either of those doesn’t happen, no extra time.

If the defendant must be served pursuant to the Hague Service Convention, the deadline does not extend.

Period.


* Not just process, but all judicial documents that must be served (great exception: subpoenas, but that’s a different argument). For our purpose here, it’s all process.

** A little known quirk in Washington’s civ pro rules: defendants served in the state get 21 days, while defendants served out of state get 30. This variance has nothing whatsoever to do with the Hague Service Convention– and arises in a very goofy place. It’s baked into the various defenses & objections of Rule 12, rather than Rule 4 where it belongs. (Wash. rules are structured similarly to federal rules.)

*** I suggest sending a waiver request before hiring us to tackle Hague service because fee shifting is a possibility.

Latest trend in litigation nationwide: Danish pharmaceutical manufacturer Novo Nordisk and its subsidiaries, sued in the United States for dramatically adverse effects of Ozempic and Wegovy. At issue is the relative safety of two medications that were originally approved for treating different yet closely related (diabetes and cardiovascular recovery) maladies, but have been found dramatically effective in treating obesity. This post disregards merits of the suits,* and focuses solely on procedural requirements to launch them.

So, what’s necessary in serving Novo Nordisk? Not anything out of the ordinary, really. Our how-to guide on service of process in Denmark lays out all the particulars of service pursuant to the Hague Service Convention, but one issue is important to keep in mind: Denmark’s position on translation. Here it is, verbatim:

A translation is not required; in the case of an untranslated document, however, the addressee is informed that he is not, under Danish law, under an obligation to accept it.

A bit of a challenge, that. Very rare is the Dane who doesn’t speak English as well as I do– seriously. Technically, you shouldn’t have to worry if your pleadings are solely in English. But many of my clients do worry, and they pay for a pro to turn everything into Danish. Why? It’s tough to say whether the serving officer in Bagsværd will be adamant about that or whether the N.N. staff member who receives the documents will be recalcitrant. If they refuse, the plaintiff goes back to the drawing board and starts all over with the translation,.

Now, fortunately, the Danish authorities are pretty quick, only taking two or three months to return proof of service, but it’s still a gamble, and if the pleadings are relatively short, it won’t cost much to translate.

While the suits are barreling headlong into full MDL status, many must nonetheless be served now. Eventually, as the suits become more consolidated in Chicago (N.D. Ill.), and eventually defense counsel will be compelled to accept, service will be progressively less necessary.

But for now, from a service of process perspective, these cases are not extraordinary. There aren’t special rules for them, and there’s not an exemption from Hague requirements unless they waive or somebody in the United States waives or accepts for the offshore defendants.


* Full disclosure: I’ve struggled with weight my entire adult life, my entire adolescence, and much of my childhood. This culminated with literally life-saving gastric bypass surgery twenty years ago. This issue is personal. I’m still fighting it at 52, and actually pondering these medications, but also realizing that fewer beers and a couple more sessions at the YMCA every week would go a long way toward the goal.

(Hat tip to Ted Folkman, for whom Gurung v. Molhatra is a White Whale. This issue is one of mine, for similarly frustrating reasons.)

Remember that legal analysis hierarchy they told us about as 1L’s? In order of authority:

  • Constitution
  • Statutes
  • Rules promulgated pursuant to statute
  • Precedent (binding and then persuasive, giving obiter dicta less weight than ratio decidendi*)
  • (if the text of any statute or rule is ambiguous) Legislative History

Well, that’s the basis for today’s rant.

A takeaway I gleaned not long ago from The Secret Barrister (which I highly recommend) is this: yes, yes, legislatures make statutes, but courts feel an irresistible, instinctive need to put their own gloss on the text. While it’s critical for courts to fill in legislative gaps, that can a recipe for trouble, and that trouble is alive and well in at least one area of my practice.

My legal writing professor (who saved my career from oblivion) hammered into our brains that we should always go to the source for legal analysis. Don’t just look to case law– go the the statute or rule itself. Why? Because precedents may be out of date, Shepard’s may not catch critical changes in the law, and courts sometimes get it flat-out wrong. When they do, they spawn a line of cases that make matters worse. So here we go with a rant on one such ridiculous line.

Rule 4(d)(1) waiver obligation

Fed. R. Civ. P. 4(d)(1) obliges defendants to waive service. All of them, with the notable exception of governments and their agencies and instrumentalities. This is beyond contestation.

Verbatim:

(1) Requesting a Waiver. An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons.

When you’re suing an offshore individual or entity (other than a government defendant), the defendant is obliged to waive, period.

But back to that gloss that courts feel the need to slather onto the words of various drafters. Here’s where the fun really begins.

Sometimes dicta is a problem child. It’s definitely a problem child when it is neither analyzed, explained, or sensical. I give you the following sentence– dictum, to be sure– from O’Rourke Bros. Inc. v. Nesbitt Burns, Inc. 201 F.3d 948, 951 (7th Cir.2000):

Rule 4(d)(2) provides foreign defendants the ability to waive service but exempts them from costs for a failure to execute the waiver.

Seems pretty straightforward, no?

Well, no, it’s not. For one thing, the ratio decidendi (okay, it’s a fancy word for holding) of O’Rourke Bros. wasn’t even about a 4(d) waiver– it was about a Rule 60 motion to overturn a dismissal. But more importantly, the sentence is manifestly incorrect. The simple fact is, 4(d)(2) doesn’t provide “the ability to waive”– 4(d)(1) mandates the waiver. Rule 4(d)(2) also doesn’t exempt anything.

The Rule 4(d)(2) fee shifting provision

Here’s 4(d)(2), verbatim and in its entirety:

Failure to Waive. If a defendant located within the United States fails, without good cause, to sign and return a waiver requested by a plaintiff located within the United States, the court must impose on the defendant: (A) the expenses later incurred in making service; and (B) the reasonable expenses, including attorney’s fees, of any motion required to collect those service expenses.

Anybody see the word “exempt” there? Anybody see the words “but not if…” or “unless”? Am I the only one who can’t see any reference to non-U.S. defendants whatsoever?

Hmmm. Curious. There is not a single word in that rule pertaining to naughty foreigners. As it turns out, the original 1989 draft of 4(d)(2) didn’t distinguish based on where a defendant was subject to service. It just said that if a defendant didn’t have a good reason for not waiving, the court had to shift costs to him/her/it.

Pretty simple, and pretty reasonable, too, if you ask me.

This was not the view taken by the Court of St. James, whose diplomatic legation threw a hissy fit, objecting to such an affront to the sovereignty of Her Majesty and the freedom of her subjects. The drafting committee didn’t want to have the fight, so they punted.** (Sure, I exaggerate, but still– the last time we let the Court of St. James tell us how to write our rules, a bunch of guys dumped a shipload of tea into Boston Harbor.)

Getting back to that hierarchy… courts should only look to advisory committee notes and legislative history if there’s ambiguity in the rule or statutory text. And there is no ambiguity whatsoever in Rule 4(d)(2). It is a command: thou shalt shift fees onto naughty Americans. It says nary a word about what happens (or doesn’t happen) beyond our shores.

So my question: did the drafters just want to shut the Brits up and make them go away? (I thought we did that at Yorktown in 1781, but still…) Or did they seriously intend to prohibit fee shifting– in which case, why not remove the clear obligation in 4(d)(1)? Recall that defendants subject to service under 4(f) and 4(h)– so, individuals and entities in foreign countries– are obliged. The drafters left that language intact.

Advisory Committee Notes in Conflict

Even at that, the Advisory Committee notes paint a rather interesting picture– a conflicting picture if ever there was one. Regarding the obligation:

The rule operates to impose upon the defendant those costs that could have been avoided if the defendant had cooperated reasonably in the manner prescribed. This device is useful in dealing with defendants who are furtive, who reside in places not easily reached by process servers, or who are outside the United States and can be served only at substantial and unnecessary expense. Illustratively, there is no useful purpose achieved by requiring a plaintiff to comply with all the formalities of service in a foreign country, including costs of translation, when suing a defendant manufacturer, fluent in English, whose products are widely distributed in the United States.

(Emphasis added. I disagree that there’s no useful purpose in it– my stockbroker makes very nice commissions thanks to it. But I digress.)

Continuing:

The opportunity for waiver has distinct advantages to a foreign defendant. By waiving service, the defendant can reduce the costs that may ultimately be taxed against it if unsuccessful in the lawsuit, including the sometimes substantial expense of translation that may be wholly unnecessary for defendants fluent in English.

(Emphasis added.)

Yet regarding fee shifting:

Nor are there any adverse consequences to a foreign defendant, since the provisions for shifting the expense of service to a defendant that declines to waive service apply only if the plaintiff and defendant are both located in the United States.

Um, huh?

On one hand, there’s no useful purpose in making the plaintiff shell out healthy four- or five- (I’ve even seen six!) figures to serve a foreign defendant– and those costs may impliedly be taxed against the defendant anyway– yet there are no adverse consequences to being furtive? Are you kidding me?

Remember the old adage that a camel is a horse designed by a committee? Well, this set of Notes is what we get when one committee member doesn’t know what another committee member is saying.

Mercifully, in that 1L hierarchy, the Notes don’t constitute law, and they only have bearing where the law is ambiguous.

Fee shifting to recalcitrant offshore defendants is not prohibited by 4(d)(2). It’s discretionary, and well within the court’s inherent authority to enforce obligations.

O’Rourke Bros. should be overturned. Or at least, its dunderheaded dictum should be disregarded.


* Yes, I like Latin.

** For a more thorough rundown– and criticism– of the rule drafting story, see Brockmeyer v. May, 383 F.3d 798, 807-808 (9th Cir. 2004).

[TL; DR: don’t even bother with it in most cases. Likely the only way to get effective service in Hong Kong lies in Article 10.]

In 1997, Hong Kong ceased to be an outpost of the waning British Empire and returned to Chinese control for the first time since the Opium Wars early in the reign of Queen Victoria (1842, in case you’re curious).

At the time of the handover, China recognized the practicality of maintaining the British way of doing things– for at least a little while– and as of this writing, Hong Kong is still designated as a Special Administrative Region of the People’s Republic of China. It still has an ostensibly independent local government and common law courts, it has kept its own currency (the HK dollar), and its affairs are still conducted in the English language. China has also maintained the British mechanism of the Hague Service Convention in Hong Kong– allowing service by mail (Article 10(a)), service at the direction of a solicitor (Article 10(b)), or service at the direction of its Hague Central Authority (Article 5).

Now, setting aside my arguments against service by mail– it’s just a bad idea– – I now have to conclude that Article 5 is even more likely to fail. About a decade ago, the Central Authority began rejecting requests for service of pleadings that failed to properly distinguish Hong Kong from sovereign states. In 2016’s Service of Process in Hong Kong means Hong Kong, CHINA, I wrote:

Simple practice tip: if your defendant is located in Hong Kong, be sure to refer to the jurisdiction as Hong Kong, China or, alternatively, Hong Kong S.A.R. (shorthand for “Special Administrative Region”).  Any request which refers to Hong Kong in isolation, and is submitted to the Hong Kong Central Authority for the Hague Service Convention, will be rejected as a matter of course.  Hong Kong government officials are particularly wary of showing any offense to the government in Beijing, and they insist on this nomenclature out of abundance of caution.

That seemed perfectly reasonable, and not at all difficult to head off in the drafting phase of a lawsuit. But in 2020, they started applying the same scrutiny to exhibits— which cannot be amended– rendering all but the barest of complaints impossible to serve pursuant to Article 5. Even those bare complaints (without exhibits, with very careful diligence to include the S.A.R. designation) are now problematic too. Last week, I got this:

Tons of fun built into that. I initially thought, based on their regular acceptance of the S.A.R. designation without reference to China, that there was something missing in what I sent in. Did I screw up? Did my client goof something up despite my advice? Did I miss their goof? Nope. I didn’t miss anything and my client didn’t goof up.

For the “examples flagged” bit, with handwritten corrections (identifiers redacted), see the following from the description of the defendants in the complaint:

I was astounded. “Hong Kong S.A.R.” alone is now insufficient. It now must be Hong Kong, SAR, China. [I can’t say whether just Hong Kong, China— omitting SAR– would suffice.]

If the Central Authority rejects such omissions in pleadings and exhibits in the first place, how is a letter explaining why changes can’t be made going to remedy anything? This new basis for rejection renders Article 5 service all but impossible, so I strongly urge my colleagues to not even try. Of course it costs more, but the only truly viable option now is Article 10(b). In Hong Kong, service can be effected at the direction of a solicitor.

By far– and I’m talking miles here– the single most frequent question to hit my inbox:  “hey, Aaron, any update yet?”  Most of the time, the answer is no.

In many cases, the question comes from a lawyer who needs to calm an anxious litigant who just doesn’t understand that (1) things don’t work abroad the way they do here and, (2) consequently, things take longer— a lot longer in some cases.  Sure, I told the lawyer at the outset that it would take X months, and he told the litigant that it would take X months, but the litigant either wasn’t listening or didn’t believe him.  [In mercifully rare cases, it’s my lawyer client who wasn’t listening or didn’t believe me.]

In still other cases, it’s an impatient judge or clerk of court trying to throw his or her weight around, and they just don’t get that U.S. courts don’t call the shots overseas.  They also don’t realize that federal rules negate service deadlines outside the U.S. (a reasonable diligence standard applies instead).  If state court rules don’t simply track the federal, they almost universally give wide latitude to extend.

None of that seems to matter when it’s been several months and not a peep has been heard from overseas.  The question isn’t unreasonable– it’s perfectly expected, in fact– but the explanation behind the “no, not yet” is rarely simple.

Something to bear in mind…

There are three types of Central Authorities in the Hague Service Convention community:

  1. the highly responsive ones,
  2. those who respond but are at the mercy of a massive bureaucracy (and once the stuff leaves their office, tracking is not a thing), and
  3. those who just ignore us completely.

The Authorities in category 1 are relatively fast– these are the ones who don’t take very long anyway– and status updates aren’t really necessary.  Before counsel starts to worry, we have proof in hand, so the question only rarely arises.*  Think Switzerland and Korea.

In category 2, well, the folks at the Central Authority would love to help, but the system in which they operate is so ponderous that they really can’t tell us anything.  The moment the request package is forwarded on to local authorities (courts or sheriffs/bailiffs) for processing, the Central Authority is just as much in the dark as I am.  Think China and Mexico here.  Occasionally, we’ll get confirmation that a Request has been forwarded on to local authorities, but never anything truly substantive that gives any forecast of a timeline.

As for category 3, what can I say?  Everything is in the hands of a foreign sovereign– a foreign sovereign who is under precisely zero obligation to answer to U.S./Canadian courts, or especially U.S./Canadian lawyers.  They don’t give a tinker’s cuss, and it shows.

It’s the second and third categories that cause so much consternation.  But there’s nothing we can do about it.**


* It does happen from time to time, but mostly as a function of overburdened government offices where things simply fall through the cracks.  It’s not because of corruption or ineptitude.

** At least, there’s nothing we can do about it after the fact.  In countries where faster alternatives are available, I advise my clients to spend a little more to take advantage of that speed.  Sometimes the price tag drives the strategy, and they go with the slower official method.  To their consternation.  The biggest culprits here?  Canada and Australia, of all places.  Their Central Authorities are frustratingly slow.  But private service is available in both, and well worth the extra cost.

Over the past decade I’ve submitted dozens– if not hundreds– of Hague Service Requests to the People’s Republic of China. It takes quite a while for proof of service (or failure) to come back, usually many months but sometimes as long as two years. That’s not a typo, and it’s incredibly frustrating for U.S. and Canadian litigators. The frustration doubles when a request fails after so much time has passed, and it doubles again when we see this reason for failure:

No such defendant at the address provided.

Harumpf. Harumpf harumpf. I mean a Mel Brooks-style harumpf harumpf.

Pretty ambiguous, that statement. Did we not properly name our defendant? Do we have a bad address? Did we strike out on both?

Every single time clients ask me to have a Chinese company served, I recommend that they undertake– at additional cost, of course– some research to look into that company and make sure it’s properly named and located. Just like we’d do with a corporate defendant here in North America.

Every. Single. Time.

When a client declines to avail her/himself of a little advance intelligence, the odds of failure literally skyrocket. To be sure, the investigation is no guarantee that service will be executed– it takes so long to get the thing pushed through the system that defendants often move before local officials get around to serving. We’re always dealing with the caprices of local officials who may not be entirely honest or motivated, or a judicial officer who might simply be in a bad mood because he had a fight with his wife at breakfast. There are about 137 variables that can throw the train off the tracks, an incorrect or incomplete address being just one. And this doesn’t apply solely to China– it’s the same calculus anywhere we rely on officials to effect service.

But a little homework at the beginning eliminates the single biggest problem in China.

The big questions surrounding that homework…

What?

What’s necessary? Nothing truly onerous. Just a reasonable inquiry into the defendant, to make sure you’re doing everything you can to serve successfully, hale the defendant into court, and make your client whole.

Why?

Why be so persnickety about this? Well, Big Tony (my 2L Business Organizations professor in law school) hammered into us on Day 1 that, if you’re going to sue an entity, you’d better name it properly, or your cause of action is dead before it leaves the starting gate.

That’s a vital, but not incredibly tricky, question in China. Chinese companies have to follow a recipe when they set up shop and paint a name on the door. Writes my friend and fellow global legal tour guide, Dan Harris, over at the China Law Blog about setting up a WFOE (Wholly Foreign-Owned Enterprise):

  • In China, only the Chinese language name has any legal status; as a legal matter, the English is not relevant. This means you can use any English language name you want.
  • Chinese company names follow this rigid structure: [City of formation] Company Name [business type] [Company Ltd.]
  • So, an English equivalent of a typical Chinese company name would be: Shenzhen ABC Consulting Co. Ltd.
  • The elements in [] square brackets are fixed by the local government. This means the only thing we need determine now is the Company Name. Since as you can see, company names can get rather long, it is usually best to limit the Company Name part to 3 or 4 Chinese characters at most.

For the record, Dan’s outline tracks with everybody else out there who writes about corporate naming conventions in the PRC. Take this to the bank, and recognize that, if your defendant’s trade name is “Chairman Mao’s Widgets” you can be assured of failure if that’s the name you slap on your summons and Hague Request.** Chairman Mao’s Widgets might be the name the company holds forth to the world in English, but the legal Chinese name literally translates to Shanghai Mao Rocks Widget Manufacturing Co. Ltd.

Sometimes the name starts in English but gets translated very poorly (ie: phonetically, Pidgin) into Chinese. As Dan stressed, a company can use any English name it wants, but the Chinese name is the only legally relevant moniker.

(To be sure, the necessity of an accurate name applies to individual defendants as well– but they’re a lot harder to track down absent a listing in a corporate filing or high internet profile. You can bet a request to serve Dave Xiaoping is going nowhere when his real name is Deng Xiaoping.***)

When?

When should it be done? The best time to undertake the investigation is before the suit is even filed. It saves a huge hassle to pinpoint the name in the first place, because you still have that single bite at the amendment apple that doesn’t need justification with the court. But if you’re already filed, you still absolutely must have the correction made before translation and before you send the Hague Request to Beijing. At that point, it’s all over but the shouting. There are no requests to amend over there. No mulligans, no do-overs. no take-backs.

You’re back to square one, starting over with a whole new Request and the additional costs that entails.

Who?

Hire a reputable, professional investigator in China. Yes, they have them, on the mainland and in Hong Kong. Don’t just call your usual guy that skip traces U.S. defendants for you, because it’s just not the same undertaking. And if your usual guy doesn’t speak and read simplified Chinese, well, how accurate do you think his result is going to be?

If an actual Chinese investigator provides the name and address of your defendant, it may differ from an SEC filing or Bill of Lading, but those documents don’t necessarily identify the proper address for service. That gets to the next question…

Where?

“Where?” is the most important question in serving any defendant– not just in China, but anywhere, at home or abroad. The single, most important piece of information in serving a properly identified defendant is his/her/its location.  Without the “where,” nothing else matters

The research we do at the outset gives us not only an accurate name and correct address for a Hague Service Request– it also gives us ammunition for alternative service in the rare instance that a Request fails. I once worked a case where my client (plaintiff’s counsel) took my advice and paid for an inquiry into the company defendant. My investigator came back with an address that appeared not only on the entity’s website, but also in its registry. Unquestionable intel that went straight into the Hague Request. A year later… “No such defendant at the address provided.” So we asked for — and were granted– a 4(f)(3) order to serve electronically. Now, that would have conflicted violently with the Hague Service Convention, but the Certificate of Nonservice was an official statement from the Central Authority that we didn’t know the defendant’s address. That negated applicability of the Convention.

Defense counsel (herself a Chinese lawyer admitted in the U.S.) argued until she was blue in the face that we violated the treaty. She contended that we had the right address, the company website and the registry agreed, and we agreed. The Central Authority called the shots, though, so it would be silly to think that it would work a second time. That didn’t matter, she insisted, telling me to resubmit and just tell the Chinese authorities to go back and do it properly.

Um, huh? Have you ever been able to order the Chinese government around?

The judge was not amused. He told defense counsel to shut up and stop being silly… all because we knew what we were doing and had done our homework in the beginning.

Wrapping up

No exaggeration here– just attempting to serve a defendant in China costs thousands of dollars and a year or two of a litigant’s life. Spending a few hundred extra dollars early to mitigate the odds of failure is always a worthwhile expenditure.

I cannot recommend an investigation strongly enough.


* I did not name this outfit. NECIPS is a silly-sounding acronym, but they tell me it sounds awesome in Chinese.

** This applies to Hong Kong as well, but with even more peculiarity. Take a read of A Hong Kong Cautionary Tale for more.

*** Set aside the fact that Deng is his surname.

Terrible news to wake up to this morning– a massive container ship, some three football fields long, crashed into a pier of the Francis Scott Key Bridge spanning the Patapsco River and serving Baltimore Harbor. Around 1:30am, the central span collapsed, causing, at this writing, at least a half dozen vehicles to plunge into the river and closing off traffic to a critical commercial artery.

Stories abound concerning the ship and its safety record, so in addition to wrongful death and personal injury lawsuits, we anticipate significant litigation over property damage and disruptions to an already tenuous supply chain across many industries.

That litigation, notwithstanding the expected loss of life and impact on the Baltimore economy, will still be subject to the same procedural requirements as any other. Namely, whether the defendants are to be served in Denmark (Maersk) or Singapore (Synergy Marine) or elsewhere, adherence to the Hague Service Convention remains mandatory.

Above all, here’s hoping the loss of life and limb is limited, and that the disruption to the Baltimore community is resolved quickly.

Latest trend in litigation nationwide: tire manufacturers, worldwide, sued in the United States for price fixing. These suits are huge, wrangling some of the world’s best known manufacturers from Italy to Germany to Finland to Japan… but the fact that they’re brought under the Sherman Act has no connection to the method by which they must be served. Simply put, if the defendant manufacturers are in Hague Service Convention jurisdictions, they have to be served in a very particular manner, almost always involving translation, and very often with methodology limited to what I term “Five-O” service.

These cases affect anybody who drives a car, rides in a car, rides a bus, flies in an airplane, trains like this guy, eats anything harvested with a tractor… you get the idea. It’s everybody. When tire price collusion involves so many manufacturers, all of us pay for it. And we want to hold the bad guys responsible.

But from a service of process perspective, these cases are not extraordinary. There aren’t special rules for them, and there’s not an exemption from Hague requirements unless they waive or somebody in the United States waives or accepts for the offshore defendants.

Over the years, I’ve posted in this space a couple of diatribes about the wisdom– or really, lack thereof– in a strict DIY (do-it-yourself) mentality in the practice of law. See here and here if you’re interested. Yes, I have a pecuniary interest, but I contend that a DIY approach to the Hague Service Convention can have disastrous results for a litigator, just as DIY investigations and DIY translations can. I stick to my guns on that, but was reminded today of another reason not to keep hold of every little piece of the litigation puzzle. Just give yourself a break, counsel. Don’t carry the world upon your shoulders.

I serve on the Community Mission Board of my local YMCA. This afternoon we had a meeting of all the Y boards across Kansas City and its environs, and the Executive Director asked how many of us had used GPS to get to the meeting. Most of the hands in the room went up, so he asked how many of us already knew where we were going, and used GPS anyway. Just about all the hands stayed up. He rhetorically asked why, and offered a simple explanation: it’s easy. It let us concentrate on other things, like making sure we didn’t rear-end the Nissan Altima in front of us (it was rainy, so…). What a great analogy to use when asking donors to sign up for auto-draft contributions.

That prompted a little self-analysis… I’m one of those who uses sat-nav even when I know where I’m going just so I don’t have to think about it. Like many of my fellow lawyers, I frequently have thought fatigue— a term I either made up on the spot (a variant of decision fatigue, which is different) or I heard it somewhere else, can’t remember, and I am thus unable to properly attribute credit.

Now, I’m a MAP NERD. Navigating is a fun game, especially in foreign countries where planning is critical. I love pondering alternative routes to wherever I’m going, and I frequently override Google when she (Google is a she on my phone, and she has a beautiful English accent, almost like a stern schoolteacher) gives directions. She’s awfully grouchy, but sometimes, I just have to let her into my heart.

It’s the same with certain aspects of litigation. Many pieces of the puzzle can and should be handed off to somebody else. Lawyers can’t expect to handle every single aspect of a case or we’ll drive ourselves nuts.

Outsource it. Then you can start to make it better.

[Just let the video play. You know you’ll be singing by the end of it.]