Wythe Ave & S 11th St
Robinson Greig, Unsplash

Much of what we do in our practice involves stacks of documents ranging from mere pamphlet size to cartons most effectively moved with a hand truck. We recently fired off a single Hague Service Convention Request that weighed 87 pounds. Seriously– seventeen reams of paper and a whole bunch of copy toner, all because our client only called us for help after the suit had been filed. We could have advised him to keep it short. I’ve said for years now that lawyers should serve everything that’s required— but should only serve what’s required. Yet some clients throw in all but the kitchen sink out of habit. For all the wrong reasons.

  • Best practice… is not sufficient reason.
  • We’ve always done it that way… well, that’s a bit daft.
  • Because the clerk told us to do this… just no.

Barring a rule that says “thou shalt serve XYZ with the summons,” omit XYZ from the stack. Not only because you’ll likely have to translate XYZ, but because a single page on the docket means four pages get loaded on the FedEx truck bound for Munich or Minsk– six pages if they’re headed to Mexico City. Our bottom line advice: trim that thing down, counsel, because every superfluous word and every superfluous page cost your client, dearly if you think you get paid by the word (you don’t– but guess who does).

Every once in a while, we’ll have a client (all of our clients are litigators) just dump a bunch of PDFs on us and say “here you go– everything is translated and ready to serve.” Sorry, but no– you have to line these things up for us, in order, in each respective language.

But we had an interesting case not long ago that posed a tricky problem: it was a petition to confirm an arbitral award, which itself had been issued in German. The contract was in German. The applicable law was German. Everything about the matter was German except for the location of the losing party’s assets, which were, you guessed it… right here in ‘Murica.

So the prevailing party’s (ie: plaintiff’s) counsel attached translations of the award, the contract, and the arbitration venue’s rulebook to the petition as exhibits. They even attached the applicable German statutes, translated. Now, we simply don’t have time to exhaustively review the pleadings our clients send us, and language providers spot and point out foreign text anyway, so we march off to our translators to solicit bids for the project as it existed in bulk. Hefty five figures, which prompted the client to respond “but the exhibits are already in German.”

Except no, they’re not. What you sent was in English– the exhibits are not in German. If the docs started in German, you just filed translations with your complaint, and that is problematic in and of itself. We still have to send everything with a translation.

Now, it’s not difficult to reverse engineer the source documents when counsel has already had much of the linguistic work done. That approach saves the litigant a whole bunch of cash, but not all of the translation cost goes away just because the original stuff was in the target language to begin with. ECF headers and exhibit title pages still need to be translated, and pagination from one to the other must be relatively close in order to pass muster in Notamerica.* When the venue rules are a 100-page booklet with dense, single spaced text but your translation is 210 pages of double-spaced Times New Roman 12-point… that’s where problems arise, especially if your translator’s work was shoddy.

So we have to charge you for translation, even though there’s not much actual language work involved. Documents that don’t show up on a foreign authority’s desk formatted properly, are sure to be rejected.

Above all else, we still have to go through everything with a fine-toothed comb, just to make sure. Now and again, that actually takes more effort that just translating from scratch.

* Formatting is a critical consideration when machine translation enters the equation. See here for more.

Cat glaring into the camera
Michael G, Unsplash

Hey, look! A listicle! (Author’s note: this was originally just titled “Ten erroneous defense arguments…” but as I got deeper into the drafting, I realized that, while they’re all erroneous, several of them are downright stupid. There’s no diplomatic way to put that without losing effect.)

Picture this: a litigator in Notkansascity taps us on the shoulder one bright sunny morning, looking to hire us to have a defendant in Notamerica served with a summons and complaint. That shoulder tap happens dozens of times a week, because all we handle is the conveyance of documents pursuant to the Hague Service Convention.* In a perfect world, everything works like a charm and we get proof of service back in a reasonable amount of time. More often than not, that’s precisely the way it happens, and our client is pretty happy with the result. Occasionally, though, we’ll later field a distraught email from the same litigator saying “defense counsel says we don’t have effective service because (XYZ). Why didn’t you do it correctly?“

Well, for starters, we did do it correctly. But you’ve got to cowboy up– or cowgirl up– and push back. Stop letting somebody who doesn’t know what they’re talking about tell you that you (we) screwed up, because you (we) didn’t. Even more likely, they’re trying to get away with something, thinking you (we) don’t know any better. But you (we) do.

Here are the greatest hits we’ve seen over the years, in no particular order but the last one. Grounds for sanctions lie in here, gang. Seriously.

10. It has to go through a
Central Authority or it’s not valid.

In what I call “5-O” countries, that’s accurate– think China, Germany, Mexico, just to name our most frequent destinations in that category, countries that object to Article 10. But in jurisdictions where Article 10 of the Convention is in play, this is a staggeringly dumb argument. When that assertion gets made about Canada, England, Australia, or the Netherlands (among others), I can confidently tell my client that defense counsel doesn’t have the first clue what he’s talking about and should thus be verbally slapped about the head and shoulders. Defense counsel has demonstrated a fundamental ignorance of how the Service Convention works; and a motion for sanctions would be appropriate. At the very least, call that guy out for being a knucklehead at the next bar association happy hour.

9. If the the Hague Service Convention doesn’t
apply, you have to serve by Letter Rogatory.

Also no. Well, okay, if you think you’ll have to enforce your judgment abroad, the Letter Rogatory route is the slam dunk way to go. But you don’t have to.

Real war story here. I was sitting second chair on a case in which German authorities kicked a Hague Request back to us because of Missouri’s split recovery statute. Seems the Germans feel that, if the state is going to take part of a jury award, it’s no longer a civil or commercial matter (which is what the Convention covers). It’s at least partially an administrative matter, not unlike what you’d see at the SEC or other regulatory agency with the power to punish. It’s a plausible (though inconvenient) argument, and I can’t say I disagree with it.

Okay, says I, we’ll ask the judge for an order to serve by email— which the judge grants– because the Convention doesn’t apply any more. Defendant hires counsel, a bigtime white shoe firm back east** (which hadn’t ever hired us and probably never will), and that firm sends one of its top guns out to the flyover** to make this thing go away, pro hac vice style.

“Your honor, I offer the Court a great blog post that lays out the process for Letter Rogatory service pretty succinctly; absent a specific Missouri rule authorizing e-mail service, it’s the only way. May I approach?”

Top Gun hands a printout to us, astonishing both me and first chair counsel, before handing a copy to the judge. The judge looks at me, grinning like a Cheshire Cat, because the fellow hadn’t bothered to find out who was sitting at plaintiff’s table. “Well,” says the judge, “let’s ask the author of this post what he thinks. Mr. Lukken, care to weigh in?”

I actually felt sorry for guy. What are the odds, especially in a small town in Missouri?

Sure, judge. I’d be happy to tell you why my learned colleague is wrong. (So his firm will never hire us.)

Point is, when the Hague Service Convention doesn’t apply, plaintiffs aren’t constrained by a treaty mandate, so they can serve in any manner permitted by venue rules. Letters Rogatory are a way to get it done, but not the only way.

8. A foreign solicitor’s clerk is
not competent to serve.

This was an interesting one. Also a monumentally stupid argument, but one requiring a nuanced reply. Seems that, when our local counsel’s clerk served a British Virgin Islands corporation, defense counsel objected, asserting that it had to be the solicitor herself who served it. Facepalm that one.

See, the United Kingdom’s original declarations to Article 10(b) are a bit ambiguous, so they were clarified in a 1980 statement from the Foreign Office to the Hague Conference’s Permanent Bureau.

“I am happy to confirm that our declaration does not preclude any person in another Contracting State who is interested in a judicial proceeding (including his lawyer) from effecting service in the United Kingdom ‘directly’ through a competent person other than a judicial officer or official, e.g., a solicitor. (…)”

It doesn’t say “by” a solicitor. It says through a solicitor. Straight up agency theory at work here, gang– just like here in the states and in Canada, when plaintiffs’ counsel directs a process server, it’s going to be good service. We do it all the time in the BVI, the Caymans, Bermuda, and Old Blighty, mother England.

Rule Britannia, y’all.

7. It has to be handed to the defendant in person.

Well, no, it doesn’t. That’s just not a thing, at home or abroad, with the exception of our problem-child jurisdictions like British Columbia and Saskatchewan– where, if we don’t get good service we’re not going to file a proof anyway.  Our successful proofs are going to indicate chapter and verse to lay out the rule regime that justifies what we did, often when we serve substitutionally on a “person of suitable age and discretion” at the defendant’s home.

6. And he has to accept it for service to be valid.

Again, monumentally stupid. Somebody’s been watching too many movies. Rule 11 should be front of mind here, gang.

The due process standard regarding service of process is very straightforward. There’s no rule saying “thou shalt place physical copies of the documents into the hands of thine adversary.” There just isn’t. You have to undertake (magic words here) a means reasonably calculated, under the circumstances, to give the defendant (1) notice of the pendency of the claim, and (2) an opportunity to be heard. That’s it.

If my guy walks up to the defendant and tries to hand him the documents, he can’t just put his hands up and say “NOPE.” We’ll just drop the stack at his feet and walk off. We don’t give a tinker’s cuss if he just leaves them there. Look up Mullane and you’ll get the point.

5. Service can’t be effected by mail.

Okay, this one’s a bit ambiguous. I usually argue that serving by mail by itself is a bad idea in Article 10 jurisdictions, and it’s completely invalid in the aforementioned 5-O jurisdictions.

But many Central Authorities serve by mail pursuant to their own laws– U.S. expectations notwithstanding. And in much of the U.S., we have a thing called “nail & mail”. We literally nail (okay, duct tape) the docs to the defendant’s front door, then follow up with a second set by mail. Does it guarantee that the defendant gets the service? No. But is it reasonably calculated, under the circumstances, to give the defendant (1) notice of the pendency of the claim, and (2) an opportunity to be heard?

Yep. It really is. Especially if the guy is evasive.

4. The mailroom clerk isn’t
authorized to accept service. 

I ordinarily agree that Timmy the Mailroom Kid is not a plausible agent for service; that’s part of the reason I contend that direct mail service is a bad idea. But when my agent in Canada, Australia, England, Ireland, etc. pulls the defendant’s corporate registry and it shows a law office as the address for service, the law firm’s receptionist can’t tell my server he has go to the mailroom and then have the law firm contest how we did it. That’s just bad lawyering right there, and I’m happy to call out the knucklehead who makes such a specious argument.

3. The defendant is not a citizen of that
country so you can’t serve him there.

Um… what? Since when?

If I’m walking into my chiropractor’s office in Overland Park, Kansas, I can be served pursuant to Kansas law. Now, Kansas is a very silly place, three miles from my home in Missouri, but if I’m physically present in the state, I’m subject to its laws.

Likewise, if I’m spending the summer in Norway and get sued in the U.S., there’s nothing in any law anywhere– rule, statute, treaty, or otherwise– that says I can’t be served with that summons in Norway.

(If anybody has a home I can rent in Norway, call me, because Missouri really sucks in August.)

2. The service effected by the destination state’s
officials violated the destination state’s law. 

This one is marginally plausible– when we get a Hague Certificate, the form of proof mandated by Article 6, we have to take it at face value and so does the court. But the U.S. or Canadian court hearing the case is not the appropriate venue to adjudicate a question of the destination state’s laws. It’s up to the foreign Central Authority to say whether service was valid under its rules of practice. Sorry, defendant, you want to say your own country’s officials bungled it, you’re going to have to litigate that question back home.

1. Tell the Chinese authorities to do it right.

Oh boy, the big one here. Quite possibly the dumbest thing I’ve ever heard in court.

Huh? That was literally my knee-jerk reaction when I testified as an expert in a case where local Chinese officials bungled a very simple service on a corporation at its documented, registered address. “No such defendant at the address provided” was the basis for failure in the Certificate, even though the registry said we had it right and the defendant later said we had it right. We moved for (and were granted) a 4(f)(3) order to serve by email. Although that’s Mullane-valid, it conflicts violently with the Hague Service Convention, but if you don’t know a defendant’s address the Convention doesn’t apply. And the local official’s assertion trumped the rest of us.

So into court we go, and my client enters me as an expert (with voir dire from the defense, mind you) before he direct examines me as to the applicable law and our efforts. Defense counsel, herself a Chinese lawyer admitted in the U.S., crosses me, and essentially calls me stupid before the judge reminded her that he’d already deemed me an expert and an officer of the court, so she’d better watch her attitude.

Astonishingly, she asked me “why don’t you just go back to the Chinese authorities and tell them to do their job properly?”

Well, counsel, I would think that you know better than anyone on this call (it was a phone hearing) would understand that it’s not wise to tell the Chinese government what to do.

The judge didn’t hit his mute key quickly enough to mask his guffaw.

I’ll leave it at that.

* Although we do handle service in non-Hague countries too, from time to time.

** Back east is how we in the flyover refer to people on the coast who consider us the flyover. We get to call it the flyover. You do not.

Alright. Let’s do this One. More. Time.

Rule 4. Summons

(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:

(3) by other means not prohibited by international agreement, as the court orders.

It never ends, apparently. Lawyers seek to circumvent the Hague Service Convention– along with the costs and delays that come with it– by serving foreign defendants via their lawyers right here in the USA. I see no problem with that approach but for the regular use of 4(f)(3) to do it.

This error just keeps going and going and going, like the Energizer Bunny. Except it’s not cute, it’s not funny, and it’s not correct. Rule 4(f) doesn’t apply to service in the U.S.

Period. Full stop. Done.

No amount of sophistry will change the simple, plain reading of the rule. No amount of wishing will overcome the laws of geography and physics.

Except time and time again, lawyers and judges don’t read the text of the rule. Instead, they rely on a string of monumentally bad case law started and perpetuated by earlier lawyers and judges who didn’t read the text of the rule (maybe stare decisis isn’t as great an idea as we’ve always thought?). My white whale looks something like this:

“The Court orders that Plaintiff effect service on defendant NichtAmerika Fabrik GmbH by delivery to the defendant’s attorneys, Dewey, Cheatham, and Howe, LLP of Minneapolis, pursuant to Rule 4(f)(3).”

So let’s say NichtAmerkia Fabrik GmbH is a German limited liability company, and let’s say its lawyers are indeed based in the bigger twin of the Twin Cities. A literal reading of the order would naturally indicate that service is to happen in Minneapolis. Last I checked, that fine city lies within a judicial district of the United States (or did I miss the whole “Minnesota secedes” story on OAN?).

But the rule says it applies to service at a place not within any judicial district of the United States. The folks at the U.S.D.C. for D. Minn. are going to be awfully surprised to hear about their ejection from the USA.

Y’all, there’s only one way service on a foreign defendant’s U.S. counsel actually works, and that is by agency theory, pursuant to Rule 4(e)(2)(C) or Rule 4(h)(1)(B)— or by state rules in the jurisdiction where service is effected. If you go that route and the court agrees with your argument, huzzah. Bully for you. You needn’t worry about international law.

Just don’t base your motion on 4(f)(3), which I’ve ranted about previously.

“But, wait,” you might say, “service isn’t completed when it gets handed to the lawyers in Minneapolis. It’s completed when the lawyer passes the process on to his/her client in Germany. It’s served at a place not within a judicial district of the United States, so 4(f)(3) actually is the way.”

Oh, so you’re saying the lawyer isn’t the defendant’s agent– he’s just a conduit, then?

Well, okay, fair enough. That still means somebody has to send the stuff to Germany for service to be completed, right?

Hmmm. That sounds a lot like the lead-off batter in the Hague Service Convention.

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.

Look, I get it. You’re trying to save your client’s resources. You’re trying to save everybody some time, including the court. But I think Justice O’Connor might have something to say about your theory. She might say that if the Hague Service Convention applies, you have to follow it.

Except there’s no “might” about it. She actually said precisely that in Volksawagen v. Schlunk. Seriously, click that link, and you’ll go straight to the paragraph where she quotes the lead-off batter in Article 1.

So you say your service is ultimately effected in Germany. That implicates the Convention. That in turn necessitates translation and the involvement of German judicial officials. Costs and delays are inevitable, and going through U.S. counsel doesn’t make the requirements go away.

So knock it off.

* Applies to entities as well– most of 4(f) is incorporated into 4(h)(2) by reference.

For a more academic analysis, see Prof. Bill Dodge’s excellent take on this topic in “The Impossibility of Schrödinger Service” over at the Transnational Litigation Blog.  The cat can be dead, or it can be alive.  It can’t be both. And my take on it is that service on U.S. counsel is valid under Mullane analysis, but it doesn’t implicate Hague strictures. Problem solved.

Maybe.

1783945001-9539-5168-lxb_photo4UGmm3WRUoQlxb_photo-
Compagnons, Unsplash

Nearly every jurisdiction in the Hague Service Convention requires translation into its own language,* and we procure translations on our clients’ behalf every single day. From time to time, a client will ask if we’ll use his firm’s preferred translator, or he’ll mention that his clients want to handle the translation because they can get it far cheaper than what we’re offering.

Sure, we say.

Although we recommend against it, we’ll use somebody else’s translations. But we disclaim the hell out of them, and we insist that they provide a single English PDF and a single foreign language PDF for each defendant.

Several reasons why:

  1. Most notably, if somebody else drives the boat, we can’t take responsibility when it hits a bridge. That’s not to say it will, but it’s not our bad if it does.
  2. We don’t have the chance to properly instruct the translators, editors, and layout crew. If we can’t instruct them, we can’t ensure quality and accuracy.
  3. We don’t know that an overly budget-conscious litigant didn’t just run the thing through a chatbot and call it a day. It’s imperative that human editing be part of the effort.
  4. Part of the fee we charge for translation (we outsource it, of course) is a markup to account for our time and effort spent verifying that it’s done correctly. In addition to checking the quality and accuracy of the linguistic work, we also make sure that everything is laid out properly. If paragraph 127 in English doesn’t have a corresponding paragraph 127 in Chinese or Spanish, foreign authorities will kick the Request back to us as a matter of course. We don’t backcheck other providers’ work.
  5. We also make sure the documents are in the proper order, collated in such a way that the foreign authorities handling our Hague Service Request see the proper sequence in both languages. If your translator (or your staff) goofs and puts Exhibit C between Exhibits J and K, that’s beyond our control. If our translator does it, we catch it in our review, and we go back and yell at the editor and proofreader.

If you choose to get your own translations, you have to accept the responsibility for their quality, accuracy, and formatting. That’s not on us.

Our job is to take a 12(b)(5) motion out at the knees, but part of that effort is wrapped up in proper translation… if you handle the translation, you take a big chunk of the responsibility away. Preventing a 12(b)(4) is entirely up to you.

* Oddly enough, the U.S. requirement isn’t 100%. Seems that French is acceptable in addition to English. Due process is still a thing, though. See here for some other exceptions.

Common loon Please tag @hyneseyes on Instagram for credit, thank you :)
Jeremy Hynes, Unsplash

Several years ago, we started a series of jurisdiction-specific posts outlining the Hague Service Convention and options for serving in each place. How to Serve Process in Canada was first published for U.S. litigators in 2017 and has been periodically updated since– including some of my favorite travel pictures from north of the border.* That post lays out general information about the Convention, Canada’s allowable means of service, and a short description of the benefits and drawbacks of each. Rather than make you read up on the whole thing, I want you to have my quick and to-the-point advice:

Just do it privately.

My rationale is very simple. Going this route works, it doesn’t take very long, and it doesn’t require a herculean effort on the part of plaintiff’s counsel. The act of service itself up there looks exactly like it does in New York or Chicago or San Francisco. You just have to do it the right way, and that’s where it can be challenging– especially in Québec, which is proudly French in both linguistics and legal system.

Yes, mail service is valid, but I contend that it’s a bad idea.

Yes, you can Request (that’s capitalized intentionally) that service be directed by an appropriate provincial Central Authority, but that takes a while– usually several weeks, if not months, until proof comes back. And at that, official service relies on a sheriff’s deputies who you hope didn’t have a fight with his wife at breakfast.

But in the English speaking provinces, if you rely on the right process server, there’s no need for hand-wringing over strategy. Just make sure the proof is written up to reflect the proper Article of the Hague Service Convention.

In Québec, if you rely on the right bailiff (Huissier de Justice), there’s also no need for hand-wringing over strategy. Just make sure the proof is written up to reflect the proper Article of the Hague Service Convention.

So how do you go about it?

  • You can do it yourself. Find a process server via a Google search, though be warned– just like down here south of the border,** that can be a bit of a gamble. Finding an English speaking bailiff in Québec is simple, too. Finding one who is cognizant of the applicable rules, well… I can’t advise you there.
  • Or you could just let my people handle the whole thing for you.

Good luck.

* Or if you’re in Detroit, south of the border.

** Or if you’re in Detroit, north of the border. Seriously, see here.

Several years ago, we started a series of jurisdiction-specific posts outlining the Hague Service Convention and options for serving in each place. How to Serve Process in the Netherlands was first published in 2017 and has been periodically updated since– including some of my favorite travel pictures from my various adventures I’ve had ever since. That post lays out general information about the Convention, allowable means of service, and a short description of the benefits and drawbacks of each. Rather than make you read up on the whole thing, I want you to have my quick and to-the-point advice:

Just do it privately.

My rationale is very simple. Going this route works, it doesn’t take very long, and it doesn’t require a herculean effort on the part of plaintiff’s counsel. The act of service itself over there looks a whole lot like it does in New York or Chicago or San Francisco– albeit with the imprimatur of the Dutch crown laid onto it if you follow my suggestion. You just have to do it the right way, and that’s where it can be challenging.

Yes, mail service is valid, but I contend that it’s a bad idea.

Yes, you can Request (that’s capitalized intentionally) that service be directed by the District Public Prosecutor’s Office in Den Haag (the Dutch Hague Central Authority), but that takes a while– usually several weeks, if not months, until proof comes back. And at that, the Central Authority might assign the project to a random bailiff who cites a European Union regulation that allows a defendant to reject process that isn’t translated into Dutch. Problem there: that reg doesn’t apply to service of U.S. or Canadian process, but it means failure anyway.

But if you rely on the right bailiff (Gerechtsdeurwaarder), there’s no need for hand-wringing over strategy. Just make sure the proof is written up to reflect the proper Article of the Hague Service Convention.

So how do you go about it?

  • You can do it yourself. Finding an English speaking bailiff is simple. Finding one who is cognizant of the applicable rules, well… I can’t advise you there.
  • Or just let my people handle the whole thing for you. Our bailiffs know what’s what.

Good luck.

A group of artificial intelligence robots answering the question
Mohamed Nohassi, Unsplash

Yep. The time has come to reap the savings offered by technology, but it’s still critical to have competent, professional human linguists involved after the robot generates its product. And that means in many circumstances that those savings just aren’t as dramatic as we might hope.

The internet guys have been telling us since the last century that, in the very near future, you can have a robot translate documents for you in a tiny fraction of the time, and at a tiny fraction of the cost, of traditional human translation. I’ve been beating my head against a wall for well over a decade, trying to convince bargain-hunting clients that, no, you can’t trust machine translation. That’s still true to a point, especially if the machine’s name starts with a G and rhymes with poodle.* See, machines can’t format documents. They can’t sufficiently intuit the sense of complex legal terminology. And they can’t exercise judgment when multiple correct answers are possible but some are superior.

Still, my translation providers have finally reached a level of confidence in their dictionaries** to offer machine translation, but…

  • The big caveat is this: it’s absolutely critical to have a skilled human editor go through the machine translation to correct errors and refine complex text. Omitting professional human judgment from the equation is just as unwise (read: dumb) in a translation context as letting ChatGPT or Copilot write your pleadings without back-checking every cite. The standard is called Machine Translation Post-Editing (MTPE).
  • The second caveat is that, especially if the documents accompany a Hague Service Convention Request or are to be submitted to a court or government agency, layout matters. Formatting is highly important, what with headers and stamps and seals and images to worry about. If the official reading the thing can’t find a word-for-word comparison, game over.
  • The third caveat comes from the professional translation providers I work with: not all languages are ripe for MTPE. There must be a “sufficient corpus of training data,” as one of my providers terms it, for the dictionary to reach a certain level of sophistication. So you’re probably not going to get much depth in Icelandic– which I understand to be a monumentally hard language to learn– but there’ll be plenty of training data for Spanish or Chinese. Accordingly, the AI-generated product is easier to fix. And to boot, with languages like these, there are more skilled editors available to do the cleanup.
  • Dictionaries are proprietary, and they’re not all alike. One provider may have a top-flight library of patent work that they’ve translated into Chinese, but they don’t have much in the way of vocabulary for contract disputes in Swedish. Yet another provider might have a data center in Stockholm that cranks out great work.
  • MTPE puts a much heavier cognitive load on the editor. Sure, these are smart people, but it simply takes longer to review machine product than it does to review human product, and making changes means decision fatigue. That reduces otherwise expected savings– for a few hundred pages, cost reduction will be substantial. But for a ten-page job, MTPE might actually end up costing more than traditional work.
  • Reiterating from an earlier post, there’s no legal distinction between certified translations and non-certified translations, other than in Vietnam. But just because a country doesn’t require certification of the work, that doesn’t mean you can get away with a robot’s work alone. Human editing is still critical, or the wheels could fall off the whole thing.
  • There will be more caveats as we get into this.

We are finally at the dawn of the age we’ve hoped for for years, and we can really start seeing bills go down thanks to available technology. We just can’t get too confident about the whole idea just yet. But it’s coming.

Maybe this guy isn’t too far off.

* I use Google Translate all the time. Every single day, because it gives me a pretty good sense of what a foreign-language document says (thanks to Google Lens, I know exactly which gelato to ask for in Rome: Pistacchio, per favore), and it allows me to communicate somewhat competently with someone who doesn’t share a common language with me. I just used it last week to tell a housekeeper at a hotel in Mexico that, “yes, ma’am, we’re checking out, so you can turn the room around for the next guest.” It just can’t provide the level of quality necessary in a legal environment.

** I asked Gemini, Google’s AI platform, to define Dictionary in this sense: “In a Machine Translation Post-Editing (MTPE) context, a dictionary is defined not as a book of definitions, but as a structured digital database used to inject pre-approved, company-specific terminology directly into a Machine Translation (MT) engine.“

henry-be-MdJq0zFUwrw-unsplash
Photo by Henry Be on Unsplash

Several years ago, we started a series of jurisdiction-specific posts outlining the Hague Service Convention and options for serving in each place. How to Serve Process in England and Wales was first published in 2017 and has been periodically updated since– including some of my favorite travel pictures from my CLE adventures every other summer. That post lays out general information about the Convention, the UK’s allowable means of service, and a short description of the benefits and drawbacks of each. Rather than make you read up on the whole thing, I want you to have my quick and to-the-point advice:

Just do it privately.

My rationale is very simple. Going this route works, it doesn’t take very long, and it doesn’t require a herculean effort on the part of plaintiff’s counsel. The act of service itself over there looks exactly like it does in New York or Chicago or San Francisco. You just have to do it the right way, and that’s where it can be challenging.

Yes, mail service is valid, but I contend that it’s a bad idea.

Yes, you can Request (that’s capitalized intentionally) that service be directed by the Foreign Process Section at the Royal Courts (the UK’s Hague Central Authority), but that takes a while– usually several weeks, if not months, until proof comes back. And at that, the FPS sometimes uses registered mail, which often fails for lack of a signature.

But if you rely on the right process server, there’s no need for hand-wringing over strategy. Just make sure the process server is directed by a solicitor, and make sure the proof is written up to reflect the proper Article of the Hague Service Convention.

So how do you go about it?

  • You can do it yourself. Find English counsel to direct their own preferred agent and apply the correct English law.
  • Or just let my people handle the whole thing for you.

Good luck.

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Several years ago, we started a series of jurisdiction-specific posts outlining the Hague Service Convention and options for serving in each place. How to Serve Process in France was first published in 2017 and has been periodically updated since– including some of my favorite travel pictures taken in the land I briefly called home for a few months in college. That post lays out general information about the Convention, France’s allowable means of service, and a short description of the judicial officers who serve in French actions. Rather than make you read up on the whole thing, I want you to have my quick and to-the-point advice:

Just use the Central Authority.

My rationale is very simple. Going this route works, the method is unassailable, it doesn’t take very long (comparatively speaking), and it doesn’t require a herculean effort on the part of plaintiff’s counsel. You just have to do it the right way, and that’s where it can be challenging.

Yes, mail service is valid, but I contend that it’s a bad idea.

Yes, you can directly engage a judicial officer, but unless you speak French, you’re going to have a very tough time educating them about what needs to happen and how it needs to be proved up. I speak French fairly well, and it’s excruciating for me to get the point across.

But if you rely on the Central Authority, somebody who knows what they’re doing is going to handle the effort reliably. There’s no need for hand-wringing over strategy.

So how do you go about it?

  • You can do it yourself. Any attorney can sign the necessary Hague Request (see here for a step-by-step guide).
  • Use a sort of “assisted DIY” platform called Hague Envoy. It will walk you through completing the Request yourself. (Disclaimer: my wife built the thing by picking bits of information out of my lawyer brain.)
  • Or just let my people handle the whole thing for you.

Good luck. Er… bonne chance.

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Claudio Schwarz, Unsplash

To many colleagues in the IP community, the Kangol case issued by the Seventh Circuit last week, along with with its cousins, Smart Study (2d Cir. 2025) and Lahr (3d Cir. 2024), seems to slam the door shut on intellectual property owners who seek to assert their rights against various Chinese infringers. Dozens, hundreds, even thousands of online retailers use platforms like Amazon and Alibaba and Walmart to peddle wares that blatantly copy trademarks and patents, yet the owners of those marks and patents face an uphill climb to get the bad guys’ storefronts taken down. Admittedly, it can be a tough process, but hopefully, I can soothe some anxiety here among intellectual property litigators, because things aren’t as dire as they seem.

Two years ago, in A Hague-compliant roadmap for service on “Schedule A” defendants, I laid out the necessary progression of steps to achieve proper service. Rather than offering guidance, though, in retrospect I see that it was more an attack on what I considered terrible judicial logic. It really was terrible judicial logic, and the 3d, 2d, and 7th Circuits agree with me, but that’s beside the point. Here’s a much more trimmed down, nuts & bolts guide to how it’s done.

Step 1: Identify the Defendant

First shot out of the gate is to see if the target has a seller profile on Amazon. They’re supposed to, of course, but not all of them do. If they do, great. If not, shoot a subpoena over to Amazon. If even Amazon can’t tell you the target’s true identity, that makes it a whole lot easier to get them taken down. Yes, it’s counterintuitive, but if Amazon can’t identify who’s flooding the market with counterfeits, make Amazon the target of the suit and see how quickly they delete the seller’s storefront.

Step 2: Find ’em.

Address research is critical, as the most frequent failure reasoning we receive from Chinese authorities is “no such defendant at the address provided”. That puts us in a but of a pickle– did we get the name wrong (see Step 1)? Did we get a bad address? Both?

See my 2024 post Chinese company names, flawed addresses, and the high likelihood of Hague Service failure. (Unless you do your homework.) for a rundown on why this is so crucial a step.

Step 3, presuming successful address research:
Send the Hague Request…

… content in the knowledge that you did your homework. Our experience over the past several years is that the research we did in Step 2 not only increases our odds of success– and dramatically so– it also speeds things along. While we usually anticipate having to wait a year or two (<– not a typo) until we receive proof, researched Hague Requests have been coming back in around six months.

Step 3.1, presuming address failure: go 4(f)(3).

It’s counterintuitive, but being unable to ascertain an address actually speeds things up. After a diligent but failed search, you’ll be able to show the court that you tried. The next step is to ask for an electronic service order under Rule 4(f)(3).

Now, I’ve been saying for years that e-service conflicts violently with the Hague Service Convention, but there’s a beautiful safety valve built into Article 1: the Convention doesn’t apply if you don’t know the bad guy’s address. No applicability, no conflict, Bob’s your uncle.

And e-service is due process valid.

No more steps.

Seriously. That’s it.

I hate to get too sales pitchy, but we can take care of all of them. You don’t have to go it alone.