In a single day last week, Week Ten of America’s Covid-19 quarantine, I fielded essentially the same oddly segmented inquiry from three different lawyers across the country. A rather disconcerting inquiry, to say the least.
“Hey, Aaron. I’ve got an overseas defendant to serve. I’ve talked to some process servers who tell me that you can’t personally serve anybody overseas right now, so I should just serve by mail.”
When I interject to tell them that, no, that’s a bad idea…
“But they say the Water Splash decision makes it okay. That’s right, isn’t it?”
Oh, where to begin? No, no, and no.
I can’t decide which segment of the discussion is more problematic, so I’ll just tackle them in the order they came to me.
(1) I’ve talked to some process servers…
By and large, process servers are awesome. I work with some great ones. They’re a heck of a lot more cognizant of the challenges of field work than I am. And if I need to serve somebody in Temecula, California or Glen Burnie, Maryland, I can pretty much count on their judgment as to how things are usually done in those localities. But unless they’re barred, I cannot take legal advice from them. Ever. Neither can you. [That’s what segments 3 & 4 get into, so bear with me a moment.]
I’ve argued for years that attorneys should outsource the work that lies outside their bailiwick– especially their international work. They should bring in somebody who has particular knowledge and can tell them where the landmines are buried. But that outsourcing must be done advisedly. Our ethical obligations demand that we not only vet the commentator, but the commentary itself.
(2) who tell me that you can’t personally serve anybody overseas right now…
The suggestion that Covid-19 has stopped service around the world is flat-out wrong. Incorrect. Untrue. False.
The global quarantine has not shut down the world’s system of service, any more than it has brought American justice to a complete halt. Sure, just like many/most U.S. courts are closed to in-person proceedings, some Central Authorities have closed down (entirely or in part) or temporarily suspended the processing of Hague Service Convention requests. But many are still fully operational and are handling requests in a relatively normal manner. Many foreign process servers and bailiffs may have ceased or reduced operations, but others are still hitting the pavement and working.
Even if these folks are shut down right now, they’re going to re-open, so it makes sense to get a service request in the pipeline as soon as possible.
(3) so I should just serve by mail.
Except in the rarest of cases, mail service is a bad idea to begin with. And right now, even where it might be legally valid, it’s never been more difficult to prove service factually. A bad idea has become even worse since couriers stopped requiring signatures due to Covid-19. The suggestion that this is a good idea…
Bear in mind, the “just mail it” suggestion is a legal recommendation, and it’s posed by someone who isn’t licensed to advise you on legal strategy and tactics. And even if they are qualified, it’s bad advice, especially in the dark days of May, 2020.
(4) But they say the Water Splash decision makes it okay…
(Here’s the really horrific part about listening to the unqualified.)
No, y’all, Water Splash doesn’t make mail service okay. All the decision did was resolve a very silly circuit split focused on an ostensible drafting error in Article 10(a) of the Hague Service Convention. Justice Alito’s opinion says mail service is acceptable under 10(a) provided certain conditions are met. Fail to satisfy any one of those conditions, and you’re sunk. The fact that much of the world is locked down doesn’t make those conditions go away, and Article 10(a) doesn’t confer any magical powers on mail service if it’s invalid under forum rules (or handled incorrectly) in the first place.
(5) That’s right, isn’t it?
Still, there’s some relief in the question. I’m exceedingly happy that my fellow table-pounders were skeptical enough to inquire. They’re appropriately curious, duly diligent, and seeking out answers to unfamiliar questions in a tough legal environment… likely from their erstwhile garage (now ad hoc home office), with kids bugging them about their chores or demanding a Popsicle.
That begs the question, though– how many lawyers are not asking fellow attorneys with specific knowledge about those areas outside their realm of expertise? How many are sticking to the “just mail it” approach, as they might to serve in Chicago or Missoula? How many are truly seeking learned counsel about service abroad, instead of just taking the process servers at their word and getting an incorrect answer to an otherwise straightforward question?
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Truly, I don’t mean to malign professionals in any field, especially not right now. I’m certainly not so without sin as to cast a stone. But when clearly bad advice is being handed out like Skittles in October, I have to remind my fellow attorneys that it’s clearly bad advice. Don’t take it without a grain of salt.
Service is happening, and even if it’s not happening yet, it will. Let’s get to work on it together.