On the little island of Murano, the glass-blowing subsidiary of Venice, Inc.

Mille grazie, Italia.

I’m exhausted.  My feet hurt.  My back is killing me.

And better moods are rare in my life.  Peggy and I flew back from UMKC Law’s CLE program in Rome last night, along with two dozen friends, both new and old.  Our operational tempo over the prior ten days was high, we walked everywhere, and on each end of the journey, we crammed ourselves into the euphemistically named “Economy Class” seats of American Airlines.  (This is not a slam on AA, but good grief, folks.  Could you have made that sardine can any tighter?)

During two of the free days of the conference, we headed up to Venice on the Frecciarossa (Red Arrow, high speed train) and got to savor cicchetti, some fantastic wine, and unbeatable scenery.  But while drinking it all in, I couldn’t help but imagine Marco Polo around the turn of the 14th century, in his hometown’s heyday.  As we sailed around the island on a vaporetto, the sea spray and cold wind blowing about, I was reminded that this place was where global trade truly began.  It’s by no coincidence that the world still comes to Venice, if for no other reason than to take a few pictures and buy some souvenirs.  It truly is a wonderful place– Peggy’s favorite in all of Europe.

The lawyer in me wonders how 14th century Venetian commerce would have reacted to a Hague Service Convention request.  Perhaps those merchants of old would have just thrown caution to the wind and relied on their formidable naval strength to ward off the procedural gestures of faraway litigators.

But I’m fairly certain they wouldn’t have closed up shop.  The economic engine would have continued to chug right along.

 

The Basilica (the three-arched building in the upper right corner).  In ancient Rome, “Basilica” meant “courthouse.”  This one was massive.

Ah, Roma.

This morning, I had the distinct pleasure to once again speak on my alma mater’s CLE Abroad Program in the one-time capital of the western world.  To hear my wife describe it, Rome is also the center of the culinary world.*  I cannot argue with this.  It is my third visit to Italy– my second with Peggy– and we intend to avail ourselves of all the gastronomic delights this sunny peninsula has to offer.

While my usual lecture on overseas CLE programs centers on the Hague Service Convention, along with a bit about the Evidence Convention, this seminar’s broader theme is Entrepreneurship and Doing Business in Europe, so I took a different tack with today’s lecture.  Sure, I had to include a bit about service abroad, but the centerpiece was an elaboration on a post from last year, Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts.  We’re in the middle of a series that digs a bit deeper into those five six things (yes, there’s a bonus!).

In addition to speaking, I’ve had a chance already to reconnect with distinguished colleagues in the Italian bar, scholars and practitioners alike.  This is not just a city of ancient relics and tourist attractions.  Rome is also the cradle of what we’ve come to know as “the law” around the world.  Even our fellow common law adherents owe a collective debt of gratitude to those whacky fellows in togas, running around the Forum looking for funny things to happen.  They quite literally created the legal profession as it began in both the common and civil law traditions.  So I’m on a bit of a pilgrimage, as it were.  Going back to pay homage to my our professional roots.

If Peggy says it’s okay, I might even be convinced to wear a toga.


* For some reason (oh, we know the reason– we just can’t say it lest we get sued by the agro-chemical industry), the wheat grown and harvested and milled into flour in Italy doesn’t send Peggy’s immune system into hysterics.  The wheat grown back home in the states?  She can’t touch the stuff without going into a sort of toxic shock.

So the theme for the week: all the food, all the wine, all the art.

Peggy and me in Venice in 2015.  Yes, we’re going back this week.  Too cold for a toga, they tell me.
Croke’s Reports, 1661. On display in the Library of the Supreme Court of the United Kingdom.

The vast majority of cases I work on are a lot like the material we read in law school.  My Torts professor told us on more than one occasion that “there are real people behind every one of these cases.”  My cases are no different.

She also told us that they were in these casebooks because some lawyer goofed.”  Or words to that effect, anyway.  I took both thoughts to heart, and they have guided my immersion in the profession ever since.* 

Last year, when I posted “Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts“, I had those real people– and preventing lawyerly goof-ups– in mind.  But lately, I’ve realized that some elaboration is necessary.  Why those five things matter ought to be apparent.  But some nuance is necessary, so I offer a five-part series that elaborates on each point, more for than benefit of lawyers than for the business owners who want to venture abroad.  

Those five things, in turn…

  1. Designate an agent for service in the United States.
  2. Include a choice of venue.
  3. Choose a governing law.
  4. Determine the operative language.
  5. Secure a guarantee of judgment debt.

If you choose not to decide, you still have made a choice.

— Neal Peart, 1979

To elaborate on Point Three…

Choose a governing law.

If you don’t designate what body of law governs your dispute, you leave everything up to the default setting of the court hearing the case.  I wrote last week about the need to choose a venue, but choosing a governing body of law is just as critical.  Its necessity ought to be obvious, but this important factor is frequently omitted, perhaps by design, perhaps by simple forgetfulness.  Just get it in there, because certainty about unfriendly law is better than uncertainty about ostensibly friendly law.  Like the choice of a venue, this is a classic Conflict of Laws issue, and courts hate to wade into those questions if they don’t have to.  This might be the single most esoteric and arbitrary– yet wide-ranging and impactful–  field of law, SO TAKE IT OFF THE TABLE.  Make a decision about what law applies.  But think about a few things as you do…

  1. Be certain the selected law has sufficient applicability to the facts & parties involved. If you’re in California state court to adjudicate a dispute between an California plaintiff and an Illinois defendant, there’s probably not a good reason to choose Texas law, unless Texas is the nexus of the contract.  Likewise, choosing Chinese law to govern a dispute adjudicated by a U.S. court borders on silliness (see Dan Harris’ thoughts on this issue, in tandem with silly choice of court clauses).
  2. The Convention on the International Sale of Goods (CISG) is the default setting for international trade contracts.  Specifically disclaim the CISG if you don’t want it applied.  
  3. Don’t assume the CISG is bad just because you aren’t familiar with it.  Especially if you’ve chosen a foreign venue, the CISG could just be the most beneficial law for your client’s situation.  Take an hour to bone up on the thing– I guarantee that the offshore party’s counsel knows it.
  4. To parallel my suggestion last week, don’t just assume that the other (foreign) party’s hometown law is bad.  The foreign country’s law may align more closely with your client’s needs, and choosing it may go a long way to preventing a breach altogether.
  5. Above all, for crying out loud, make the venue and governing law correspond to the language!  It’s highly impractical to expect a Minnesota court to adjudicate a Swedish-language contract under German law.  Ponder that for just a moment– such an expectation insults Minnesota because you don’t like Minnesota law or the language of Shakespeare, it insults Sweden because you don’t believe in its courts or law, and it insults Germany because you can’t be bothered to adjudicate there in its language.

There is no one-size-fits-all approach to designing a solid agreement– every contract is different, even if the same parties are signing the latest agreement in a decades-long relationship.

 


* I learned Torts from Nancy Levit.  It was my best grade that very first semester, which isn’t saying much, but I definitely learned a bunch from her.  The learning continued after I graduated, with two books she co-wrote with Doug Linder (my ConLaw professor, two semesters worth).  I highly recommend The Happy Lawyer and The Good Lawyer.  

 

From his firm bio.

Tom Pickert was an outstanding lawyer, by all accounts around the local bar.  Our paths never crossed, at least as recollection says, but our circles overlap considerably.  Word of his death came via the listserv of the Missouri Association of Trial Attorneys, just as a few of us were walking into the Association’s membership meeting in Kansas City.  When the president announced the tragedy to the group, quite a few gasps came out, from those who hadn’t read the email on their phones, along with a few tears from those who knew him.

Pickert was supposed to have been in that room, having lunch with his colleagues, perhaps at my table or at the one next to it.  Instead, he had been gunned down on his own front porch three hours earlier, while I sipped my morning coffee just a few blocks across our bucolic neighborhood.

We didn’t know each other, except by his reputation, but the profession we both chose was targeted this morning.  Tom was murdered because he was good at his job.  He was gunned down on his own front porch because an arrogant, evil, psychotic defendant refused to accept that a jury of his peers said he was wrong.  Oddly enough, the jury said he was wrong to gun down somebody else, Tom’s client.  [The defendant shot a homeless guy’s leg off with an AK-47, because the homeless guy was stealing from his business, so he said.  The man kept an AK-47 at the office.  Let that seep in for a minute.]  Pickert was assassinated– because he had the courage to stand up and point a finger at a defendant with an itchy finger.

This tragedy is the natural confluence of, on one hand, a sick and twisted attachment to firearms, and on the other an insidious hatred of lawyers.  “The first thing we do, let’s kill all the lawyers” is a popular sentiment among the Tea Party contingent—of which David Jungerman was apparently a part.  They fail to realize that Shakespeare put those words into the mouth of a spiteful antagonist hell bent on the overthrow of society.  They fail to realize that the libertarian ideals they purport to hold so dear were devised by men in the very profession they disdain.

Now, to be sure, the Right Wing will tell you that they don’t hate all lawyers.  Just plaintiffs’ lawyers.  You know, those ambulance chasers who brings frivolous lawsuits against good, god-fearing job creators and needlessly raise the cost of doing business.  Those charlatans who drain billions from the economy each year over such stupidity as a woman spilling hot coffee in her lap.*

But the sad thing is, that’s a specious argument no matter how you slice it.  Set aside criticism of lawyers who are handsomely compensated for bringing suits on behalf of plaintiffs.  Set aside the court-imposed sanctions that we’re subject to if we bring cases without merit.  David Jungerman seemingly hates all lawyers.  So much so that he represented himself in the trial that Tom Pickert won.  So much so that, if he’s not already dead by his own hand, he’ll likely refuse to have one of us defend him at his trial for this.

Our profession was targeted today, and Tom Pickert paid the price, because he was one of us.  The sons he walked to school—just minutes before his death—will cry themselves to sleep, no doubt next to their mother, who will wake up tomorrow for the first time without her husband.  They’re paying an even bigger price.

Now, to be sure, the facts aren’t all in.  As of this writing David Jungerman hasn’t been captured or charged.  He is due a fair and impartial trial, and in all likelihood Tom Pickert would be the first to stand up in his defense before the horde calling for his head.

Because a lawyer’s first and last objective is justice.  We should all share that objective.  Plaintiffs’ lawyers, corporate counsel, prosecutors, public defenders… all of us mourn Tom Pickert tonight.  And we’ll stand up again tomorrow to fight the good fight.

 


* If you still buy into that garbage about the coffee case, watch the documentary film Hot Coffee, which tells the real story behind Stella Libeck’s suit over McDonald’s 200-degree coffee—and those of other tort plaintiffs—in a form that wasn’t written by corporate America.  The part the smartasses leave out when they mock that poor woman:  your coffeepot at home brews at 200 (if it’s good), but it runs about 140 at warming temp.  McDonald’s, prior to the suit?  Maintain that stuff at 200 or better, so we have to throw less of it out.  That’s just a few shy of boiling, y’all.  But that’s how they handed the cup to her, all in the interest of saving thirty-seven cents per wasted cup.  [Yes, I fabricated that number.]

Raja Haji Fisabilillah Monument, Tanjung Pinang, Indonesia… right in the SIJOR Triangle. Achmad Rabin Taim via Wikimedia Commons.

A client emailed me the other day, asking how to serve a foreign defendant.  A pretty common occurrence that prompts either a “take a look at this blog” reply or a short & sweet rundown on what they need to do.  It comes up pretty regularly, and there’s really no good answer for it:  how do you best serve a defendant that isn’t in a Hague country? 

The answer that I quickly dashed off …  “forgive the law school answer here, but it depends“, followed by some brief detail.  One of the double-edged swords of the Hague Service Convention is that (on one hand) it provides certain, specific avenues to service, but it also (on the other hand) frequently limits those avenues.  Sure, a considered analysis is needed for serving defendants in England, France, and Canada.  But Mexico, China, and India… there’s one way to do it—period.

But what of those non-Hague places?  Well, a whole bunch of important questions will determine how to best serve.  For the purpose of illustration, let’s say your defendant is in the SIJORI Growth Triangle—an industrial compact of sorts, between Singapore, Malaysia, and Indonesia.  I pick that area because it’s seen a massive growth rate in recent years, and because all three countries lie outside Hague.  Let’s also say you’re in federal court, just for the sake of a simpler illustration.  Rule 4(f) will govern how you serve regardless of the defendant’s overseas location.

The bunch of questions:

  • Do you have an address for the defendant?  If not, find one.  Seriously—that is the ultimate threshold question.  I can’t help you if you don’t have this critical piece of information—although, I can help you find it.
  • (For rhetorical purposes…) Is the destination country a Hague Service Convention member?  Not in our illustration here, but if it were, the next question would be “do they object to Article 10?”  Set that aside for this discussion.
  • Where are the defendants’ assets?  The absolutely critical point, because if you have to go offshore to enforce a judgment, one of the very first things a foreign court will look at is the manner in which the defendant was served, and if they find it inappropriate, you’re done.  This makes perfect sense—because if they can reject an enforcement action on procedural grounds, they can avoid the tall weeds of substantive law.  [If the defendant has U.S. assets—or even Canadian or British assets—you can rest a bit easier.]
  • Does the defendant speak English?  If it’s an entity doing business in the U.S., it will be presumed competent in English.  But an individual… not so fast.  You may have to translate into Malay or Bahasa or any of a number of different dialects, to ensure that the defendant’s due process rights are respected—regardless of how you serve.  If the defendant isn’t in an English-speaking country, you may have to translate whether it’s an entity or not.  So be sure to keep things brief; federal court is a notice pleading venue, after all.  You don’t get paid by the word, but translators do.
  • How much is this defendant’s involvement really worth?  That will determine whether a more costly method (Letter Rogatory, local counsel…) is warranted, rather than simple mail service, or if the whole analysis is a waste of resources.
  • Is service by mail actually viable?  I’m not a big fan of mail service except in the rarest of circumstances.  It’s usually a bad idea.  But if the defendant has a history of actually allowing its employees to sign for FedEx or UPS deliveries, you’re probably going to be okay.
  • Does the law of the destination state prohibit service by mail?  This one’s doubtful outside the Hague list—but if the other country has a statute or caselaw that forbids mail service, it violates 4(f)(2)(C) [“unless prohibited by the foreign country’s law”].
  • Does the destination state prohibit personal delivery?  This one is also doubtful outside the Hague list, but again– if the other country has a statute or caselaw that forbids mail service, it violates 4(f)(2)(C).  In most civil law jurisdictions (essentially, everywhere that wasn’t once a British colony), service is a sovereign function or reserved to a guild monopoly.  You can’t necessarily just hire a guy to walk up to the defendant and hand him the documents.

It should be apparent that there isn’t an easy answer to the question, so the SIJORI defendant– whether in Singapore or Malaysia or Indonesia– necessitates some anaylsis.  To be sure, this isn’t an exhaustive list—but the ultimate point is that if the defendant doesn’t have accessible assets, you will have to enforce the judgment abroad, so that procedure should always be foremost in your mind when deciding how to serve.

“Just mail it” could be the worst thing you can do.  [Oh, and if you do decide to mail it, do it the right way!]

 

Supreme People’s Court, Beijing (Reuters)

The vast majority of cases I work on are a lot like the material we read in law school.  My Torts professor told us on more than one occasion that “there are real people behind every one of these cases.”  My cases are no different.

She also told us that they were in these casebooks because some lawyer goofed.”  Or words to that effect, anyway.  I took both thoughts to heart, and they have guided my immersion in the profession ever since.* 

Last year, when I posted “Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts,“ I had those real people– and preventing lawyerly goof-ups– in mind.  But lately, I’ve realized that some elaboration is necessary.  Why those five things matter ought to be apparent.  But some nuance is necessary, so I offer a five-part series that elaborates on each point, more for than benefit of lawyers than for the business owners who want to venture abroad.  

Those five things, in turn…

  1. Designate an agent for service in the United States.
  2. Include a choice of venue.
  3. Choose a governing law.
  4. Determine the operative language.
  5. Secure a guarantee of judgment debt.

If you choose not to decide, you still have made a choice.

— Neal Peart, 1979

To elaborate on Point Two…

Include a choice of venue.

Even if that venue is overseas (and in many cases, it’s actually smarter to choose a foreign venue than a U.S. venue), agreeing on the appropriate place for a suit prevents a number of headaches—and can even prevent a dispute from arising in the first place.  Globally, this is referred to as a “choice of court clause” but has similar binding effect in most industrialized countries.

If no venue is selected, then any venue might end up taking up a dispute, and you don’t want that.  Don’t simply assume that the locus of performance will be the proper venue for a dispute.  Why not the locus of execution?  Why not the plaintiff’s hometown?  Why not the defendant’s hometown?  Why not the locus of the widget’s manufacture or export or import?

This is a classic Conflict of Laws issue, and courts hate to wade into those questions if they don’t have to.  This might be the single most esoteric and arbitrary– yet wide-ranging and impactful–  field of law, SO TAKE IT OFF THE TABLE.  Make a decision about where the parties want disputes to be heard.  But think about a few things as you do…

  1. Don’t be too certain that your hometown is the best place to go.  A rural Kansas state court may not have sufficient expertise to adjudicate an international trade case.  Sure, you’re more likely to have a sympathetic ear in a local judge & jury, but how competent are those folks to determine wrongdoing if everything about the contract (execution, performance, payment, etc.) takes place in Spain?
  2. Don’t be too certain that the other fellow’s hometown isn’t the best place to go.  In some cases, particularly in China (as highlighted frequently by Dan Harris’ excellent China Law Blog), choosing the other guy’s home venue can be a nice hedge against his breaching the contract!  If you have the guts to challenge him in his own backyard, he’ll think twice about trying to welch on you.  Sure, you may not win there, but Sun Tzu would tell you that the greater victory is to not have to fight in the first place.
  3. Be certain the selected venue has sufficient connection to the facts & parties involved.  Sure, the Delaware Chancery Court might have the most expertise applicable to a particular set of facts & law, but if there’s no Delaware party involved in the contract, why would it even want to deal with it?  Courts don’t take up cases just because someone asks them to.  
  4. Don’t be so sure the venue that seems smartest actually is the smartest.  Again, I shamelessly extrapolate Dan Harris’ thoughts on choosing Hong Kong as a litigation venue.  Yes, you know the rules and you know the law in a particular court.  You know that it’s a nice, neutral setting, so neither party is going to get hometowned (sp?).  You know it has a reputation for fairness and expertise in the particular area of law.  You know both sides are familiar with its unwritten rules and you know that language isn’t a problematic issue.  But how are you going to enforce a judgment from that court unless the other party has assets under its control?  It could be a massive waste of everybody’s time to litigate– and res judicata could destroy your chances of ever collecting.
  5. Ponder an arbitration clause. It serves the same purpose as a choice of court clause, and often designates specific rules and the governing law.  Thanks to the New York Arbitration Convention, arbitral awards are far easier to enforce abroad than litigated judgments and, despite their political unpopularity, provide significant cost savings in dispute resolution.  (Dan would also tell you that Chinese courts aren’t keen on enforcing arbitral awards, so don’t do it unadvisedly. If you’re drafting a China contract, call Dan.  Just do it.)  Sure, they’re de rigeur in consumer contracts, but they may not be the best way to go in commercial contracts– especially across borders.  Still, if the circumstances are right, arbitration could be a bright idea.
  6. Recognize that the choice of venue clause can be an outstanding negotiating concession.  If you’ve concluded that litigating in the other fellow’s back yard wouldn’t be a tragedy, give that fellow what he wants in exchange for something you truly need.
  7. Don’t get cute.  See Dan Harris’ “… Too Clever by Half” post.
  8. Above all, for crying out loud, make the venue and governing law correspond to the language!  It’s awfully impractical to expect a Minnesota court to adjudicate a Spanish contract under German law.  Ponder that for just a moment– it insults Minnesota because you don’t believe in English or Minnesota law, in insults Spain (or Mexico or Argentina, etc.) because you don’t believe in its courts or law, and it insults Germany because you can’t be bothered to adjudicate there in its language.

Seriously.  This stuff is crucial, and there is no standard form to fill out– every contract is different, even if the same parties are signing the latest agreement in a decades-long relationship.


* I learned Torts from Nancy Levit.  It was my best grade that very first semester, which isn’t saying much, but I definitely learned a bunch from her.  The learning continued after I graduated, with two books she co-wrote with Doug Linder (my ConLaw professor, two semesters worth).  I highly recommend The Happy Lawyer and The Good Lawyer.  

Taos County, New Mexico. Sheriff Montoya discusses business with a process server, 1941. NARA photo.

The vast majority of cases I work on are a lot like the material we read in law school.  My Torts professor told us on more than one occasion that “there are real people behind every one of these cases.”  My cases are no different.

She also told us that they were in these casebooks because some lawyer goofed.”  Or words to that effect, anyway.  I took both thoughts to heart, and they have guided my immersion in the profession ever since.* 

Last year, when I posted “Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts,“ I had those real people– and preventing lawyerly goof-ups– in mind.  But lately, I’ve realized that some elaboration is necessary.  Why those five things matter ought to be apparent.  But some nuance is necessary, so I offer a five-part series that elaborates on each point, more for than benefit of lawyers than for the business owners who want to venture abroad.  

Those five things, in turn…

  1. Designate an agent for service in the United States.
  2. Include a choice of venue.
  3. Choose a governing law.
  4. Determine the operative language.
  5. Secure a guarantee of judgment debt.

If you choose not to decide, you still have made a choice.

— Neal Peart, 1979

To elaborate on Point One…

Designate an agent for service in the United States.

All U.S. entities must designate an agent for service when they incorporate, organize, or register with their respective Secretary of State.  Foreign (that is, non-U.S.) entities usually bear no such responsibility.  If a lawsuit against one of those entities becomes necessary, you probably won’t be able to just hire a process server in the foreign country. You will need someone like me to handle it for you or, worse, you’ll spend hours just researching how it’s done (and then bill you for that time).  With a U.S. agent, regular U.S. practice is perfectly fine.  (And to go one better, have the contract stipulate that the agent can be served by email!)

When you hire me, I’m going to charge you at least a few hundred bucks per defendant.  And although your client is going to save money if you hire me instead of doing it yourself (I elaborate here), I’m not cheap, and neither are my competitors if you’re doing it right.

Now, who should that agent for service be?  Well, that’s a tough one, especially if the foreign party isn’t registered with a particular Secretary of State (very few are– and don’t just assume you can serve a Secretary of State by default, because the Secretary is usually just a link in a chain of service, and Hague restrictions still must be observed).  The foreign party may have counsel, they may have a U.S. subsidiary, or they may have some other U.S. presence that can be specifically designated and authorized to accept service on their behalf.  Just be careful about who is selected.  Some pitfalls:

  • Designated counsel:  imagine that in the contract, the foreign party has designated its Boston attorneys– Crane, Poole, and Schmidt— to accept service on its behalf.  A year into the contract, the foreign party fires the firm because the principal partner has mad cow disease.  Then what?  
  • Designated U.S. subsidiary:  imagine a similar scenario, but instead of firing its lawyers, the foreign party dissolves its subsidiary or moves it offshore.  Then what?
  • Designated U.S. presence:  perhaps the foreign party has a storefront location in Peoria, or a satellite office in Kansas City, and they designate that U.S. presence as their agent for service.  Maybe the storefront is destroyed by fire, or maybe the KC office can’t hold onto its staff because the labor market is so vibrant.  Then what?

Your best course of action might be an established agency in the capital of the state that you expect to be the locus of performance.  A simple Google search pulls up dozens of agents who can be hired for fifty bucks a year.  Prepay the agent for the life of the contract, et voilà.  When a dispute arises, you don’t have to pay me a thousand dollars (and pay a translator six thousand dollars!) just to get the defendant into court.

It’ll cost you $37.00 in courier fees to overnight the summons & complaint to an agency in Dover.


* I learned Torts from Nancy Levit.  It was my best grade that very first semester, which isn’t saying much, but I definitely learned a bunch from her.  The learning continued after I graduated, with two books she co-wrote with Doug Linder (my ConLaw professor, two semesters worth).  I highly recommend The Happy Lawyer and The Good Lawyer.  

Timmy the Biglaw Associate realizes that he needs to discover documents from a company in Italy.  Timmy knows from CivPro class that discovery requires a subpoena, so he dutifully sits down and writes one, to command the company to produce any and all documents related to XYZ, et c.  He seals it up in a FedEx envelope, sends it off to Milan, and a week later, the company’s avvocato tells them to fugghetaboutitit has no coercive effect in Italy.

Timmy went to an Ivy League law school, graduated at the top of his class, and was heavily recruited by the biggest white shoe firms on the east coast.  But they never told Timmy about extraterritorial effect in law school.  It simply never came up.  What Timmy didn’t know is that a Hague Evidence Request is the proper instrument to compel the production of evidence in Italy and a few dozen other countries.  Some very important rules apply to its use, and its execution relies on the kindness of a foreign judge who is a bit like that guy in the sleigh who gets his own tracking system at NORAD.

Some salty old veteran in the managing attorney’s office tells him, “no, Timmy, the Hague Evidence Convention applies here– try again,” so he copies and pastes the subpoena language into the form provided by the Hague Conference, and shoots it off to Rome.  It eventually lands on the desk of an Italian judge.

Sadly, a Hague Evidence Request is not what Timmy thinks it is.

It’s not a subpoena.  It’s a Letter to Santa Claus.

More to the point, it’s a Letter to Santa Claus in which you must not only justify the pony, but also describe its height, color, and breed, then tell Santa exactly what its responsibilities will be (carnival rides, herding cattle, pulling a beer wagon).  You can’t just tell Santa you want “a” pony.  You have to define what you mean, and then articulate why.

Think of the Italian judge like Santa Claus.  Timmy just demanded a whole bunch of ponies.  And you don’t just demand something from the man in the sleigh.  Even if you’re Veruca Salt and your daddy is a pushover.  You can’t just say you want the whole world, Veruca.

A little illustration…

The year I turned ten, I figured out the guy in the sleigh.  Around Thanksgiving, I told Mom & Dad that “I KNOW YOU’VE BEEN LYING TO ME”, and they reacted by threatening my life if I broke my kid sister’s six year-old heart and told her the ugly truth.  I almost spilled the beans a couple of times, prompting threatening glares from Mom and a simple tap of the belt buckle from the Old Man.  I had to think fast, or Christmas was really going to suck.

Dad had just gotten promoted (ah, life in an Army family), so we could finally afford some of the cooler stuff in the Sears Wishbook, and I was assured that the naughty/nice criteria remained in effect as to my own haul on Christmas morning.  I volunteered to help… I’d pitch in and make it special for Kid Sister.  On Christmas Eve, I stayed up until 3am with the Old Man to assemble the Barbie Dream House.  This evil monstrosity right here–>  

It was an epic nightmare.  A thousand little pieces and tabs and slots and a schematic to rival the Space Shuttle… just a nightmare.  But as much as she appreciated it and played with it for hours and hours, Sis confided in me years later that it wasn’t the one she wanted.  She wanted a far simpler version– the town house from the 1960s, rather than the massive Malibu Beach House that all the little girls wanted in 1980, give or take a couple of years.  We picked up a ’60s version at a garage sale five months later when the family next door was transferred to Germany.

Two decades later, I was the Old Man myself, and I expected another 3am assembly project.  The updated version of Barbie’s town house popped out of the box, folded open, snapped into place, et voila.  No assembly, no screws, no tabs… it was as if someone had clued the Mattel people into the fact that dads despised them.

But to compare, my sister hadn’t been specific.*  My stepdaughter was pinpoint accurate about her intent– for months– and she took me by the hand every time we were within a mile of Toys ‘R’ Us and said…

<– “THAT ONE, RIGHT THERE.”

Surgically specific.  I expected her to make me write down the numbers from the UPC label.  On Christmas morning, Santa Claus made that little girl sing with delight (and my heart sang right along with her).

The lesson for litigators here… don’t be like Timmy, or my kid sister.  Don’t just say you want “a pony” and think that by noon on Christmas Day, you’ll be driving a herd up to Abilene.  Don’t just say “I want a G.I. Joe.”  Santa Claus doesn’t know that you want the G.I. Joe with the kung fu grip.  He goes to the toy department at K-Mart* and is so overwhelmed with ALL the G.I. Joe stuff that he just gets you a nice, um… football.

In a Hague Evidence request, you have more like my stepdaughter.  Or Ralphie Parker– after he left Higbee’s (you know Ralphie, and if you don’t, you’ve obviously been living under a rock for thirty years).  Ralphie’s Old Man knew with certainty that he wanted “an official Red Ryder, carbine action, two-hundred shot range model air rifle!”

Why?  Because Ralphie was so utterly specific, once he overcame his awe of being in the presence of the big man himself.  Of course, he fought really hard to not overdo it.  He had to be subtle in communicating his specificity (Miss Shields’ theme assignment probably had no discernible effect on Santa Claus’ understanding of the matter).  But he very specifically stated what he sought, and his request was duly executed by the appropriate judicial authority (read: Dad) of the jurisdiction in which the thing was sought (3159 W. 11th Street, Cleveland, OH 44109– in real life).

The point is this: a subpoena demands that someone give you what you seek; if they don’t give it to you, consequences follow.  You don’t demand anything in a Hague Evidence Request; if you do, you’re headed for a very pink nightmare.


* The lesson was passed down to the next generation.  My nephews now send me URLs to specific products on Amazon.  Usually Nerf guns.

** I worked at K-Mart for a couple of seasons while I was in college.  It really was a class organization, although I think they treated me better because I was in college and not high school.  I worked the toy department for exactly one shift during the Christmas season.  Never again.  There was just too much… everything.  No wonder Santa wants specifics.

OH YEAH.  ONLY 84 DAYS UNTIL CHRISTMAS, KIDS.

New Orleans, Louisiana— I’ve written previously about my insistence that lawyers should outsource their international work.  I’ve also modified my thinking a bit, at least as far as nomenclature of the idea, opting instead to call it subcontracting.  At ClioCon this morning, Clio’s CEO, Jack Newton, offered a brief synopsis of his company’s 2017 Legal Trends Report.  A frightening set of statistics jumped off the screen as he went through his slide deck, and they really bring into focus my insistence about subcontracting.

Imagine a lawyer puts in an eight-hour day (just imagine it’s only eight, would ye?).  Of those eight hours, only 2.3 are spent on actual legal work.  The remainder is tied up in building business (critical, no doubt), non-billable learning (read: research the client won’t pay for) or administrative tasks.  And of the 2.3, only 1.6 actually results in dollars going into the firm’s operating account.  Twenty percent.

So how do we, Jack asked, turn those other six hours or so into dollars?  Any which way you can– especially if technology can streamline what we do.

That got me thinking more about the argument for subcontracting out work that isn’t profitable for a firm.  It reminded me of the Big Firm Partner who was incredulous that his firm would dare to look outside for help.  On anything.  Well, if Jack’s statistics are to be believed, Mr. Incredulous now has simple math to guide him.  If you’re only getting paid for twenty percent of your work, you’ve got to rethink things, man.  Really.

Law firms are under tremendous budgetary pressure, and only those who take advantage of every possible efficiency will survive the tsunami that’s been battering our little guild for going on a decade.

Canal Street, New Orleans

Peggy and I are in New Orleans this week for the Clio Cloud Conference (ClioCon, for short), in the hope of picking up some knowledge about the massive changes underway in the legal tech industry.  To be sure, mine is a very odd practice, and would not exist but for the wide range of technological marvels that we couldn’t even dream of just a few years ago.  It’s an exciting time to be a lawyer, frankly.

Yeah, it’s a bear for new graduates to find jobs in the traditional sector– I’m only five years out myself, and the white shoe firms in Kansas City didn’t even give me a first look, much less a second– but the traditional way of doing things is going away.  It’s a slow process, and a painful one, but this industry is undergoing a metamorphosis.  The caterpillar isn’t dying.  It’s merely in a chrysalis, and the butterfly is soon to emerge.  Like any industry, ours is being disrupted by technology, and that has the buggy-whip manufacturers justifiably terrified.  But for every buggy-whip maker who lost his job at the beginning of the last century, several autoworkers built careers.  I see the same thing happening in the law.  And I’m at ClioCon this week specifically to get a better handle on how that will come about.

In my own field– cross-border civil procedure– I predict a couple of things:

  • Central Authorities will, in the next five years, begin to accept electronic submissions of Hague Service requests.  Now, on its face, this seems like not much of a stretch.  But the rest of the world has yet to embrace technological enhancements to legal procedure.  Heck, there are still state courts in the U.S. that require all pleadings on paper.  Eventually, though, I envision Hague authorities allowing submission of requests at the click of a mouse.
  • Service of process by electronic means will become more and more acceptable to U.S. courts in the coming few years.  This is only logical– federal courts (with the exception of immigration courts, if you can believe it) are completely equipped for e-filing.  And that ridiculous and arcane legal fiction called publication becomes harder to justify every day.  The Mullane standard is simple enough that it makes service by email (or Facebook or LinkedIn or… insert a medium here) a practical necessity, rather than a novelty.  Before too long, some countries around the world will begin to accept it as a part of Hague Service Convention methodology.

Sooner or later, all-things-Hague will be able– at least in some countries– to be accomplished with the click of a mouse.  No muss, no fuss. I look forward to being a part of that development, and I hope to glean enough understanding of current trends at ClioCon to take full advantage of new stuff in the legal tech industry.

Stay tuned for more.


They tell me that if I tag #ClioCloud9 in my posts, the guys at LexBlog will buy me a beer.  I don’t know if that’s true, but my favorite local brew is Big Easy IPA.