Rustic/ Vintage Door With Push Sign
Devon Janse van Rensburg, Unsplash

(Author’s note: this isn’t just a problem in California– others dig their heels in, too, particularly in Ohio and Maryland. It’s a state court issue, from coast to coast, but Los Angeles has been the problem child of late.)

For the most part, the work I’ve done in this little niche over the past twelve years has been rewarding and uncontroversial. The biggest frustration I encounter in the nuts & bolts side of my practice is failed service despite our best efforts, because some foreign bureaucrat doesn’t want to do his job. There’s precious little we can do about that, so as long as expectations are managed, even that frustration doesn’t keep me up at night. Lately, though, we’ve seen a surge in rejection of proofs of service by court clerks who just don’t know what they’re talking about. It’s been an increasing problem just recently in Los Angeles County Superior, where I’ve never really encountered many roadblocks.

And yet…

For some reason this summer, the clerk’s office in L.A. has been demanding that we provide a wet ink (SRSLY?) copy of Form POS-010, the standard California proof of service with an inadvertently hilarious epically unfortunate acronym. Sorry to break it to you, folks, but no.

The POS-010, as adopted by the Judicial Council, is woefully insufficient to demonstrate how the service on the defendant was valid.

For starters, service effected pursuant to Article 5 of the Hague Service Convention is proved up by a specific form– a Certificate— mandated by Article 6. It’s truly all the proof you need, thanks to that pesky old Supremacy Clause. In case you’ve forgotten those two semesters of ConLaw…

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Yep. That one. (Emphasis mine, of course.)

Pretty easy to make the clerk’s argument collapse pretty quickly. Article 5 service is proved up by a Certificate issued by various foreign officials, and the U.S. court must accept it. Period. No debate. Do not pass GO, do not collect $200.

But it gets a little murkier when service is effected pursuant to Article 10(b) because there’s no form of proof prescribed by the treaty. CCP § 417.10 lays out how to prove up service effected within California, and that’s by affidavit. In pertinent part:

(a) If served under Section 415.10, 415.20, or 415.30, by the affidavit of the person making the service showing the time, place, and manner of service and facts showing that the service was made in accordance with this chapter. The affidavit shall recite or in other manner show the name of the person to whom a copy of the summons and of the complaint were delivered, and, if appropriate, his or her title or the capacity in which he or she is served, and that the notice required by Section 412.30 appeared on the copy of the summons served, if in fact it did appear.

Seems to support our argument, doesn’t it?

Ah, but wait. Keep reading and you’ll find the problem:

(f) All proof of personal service shall be made on a form adopted by the Judicial Council.

Okay, so the clerk isn’t just being bullheaded. But you still have to push back.

The POS-010, as adopted by the Judicial Council, is woefully insufficient to demonstrate how the service on the defendant was valid. Therein lies the logic behind the affidavit– it fulfills the § 417.10(a) mandate that time, place, and manner of service be demonstrated, but it goes beyond that to demonstrate the proper treaty article in play, as well as the identity of who’s calling the shots. At that, §§ 415.10, 415.20, and 415.30 aren’t specifically applicable to service abroad either, so the applicability of § 417.10 at all is tenuous at best. [To be sure, § 413.10(c) covers service abroad as to method, deferring to the law of the foreign jurisdiction– not as to proof form.]

The net result of insisting on the POS-010 is really just more paperwork on the clerk’s desk– more follow up to do.

Accepting what we provide means less work for the clerk, because the judge isn’t going to come back and query how this overseas effort was legal.

Push back– it’s better for everyone.

English and French flags
Aleks Marinkovic, Unsplash

Seriously. Unless you absolutely have to serve them with process (ie: the summons), leave discovery demands out.

Lots of plaintiffs’ lawyers gasp when I say that.  They look at me like I have three heads.

  • “Are you nuts?”
  • “Oh, you’re a comedian now?”
  • “Clearly, you’re an idiot.”

I certainly understand why they react that way. It’s common practice in many states to include discovery demands with a summons* and complaint/petition because he who demands first… demands most effectively. Under some rulebooks, omitting discovery documents from service of process puts you in an oddly defensive position at the outset.

But here’s the problem: discovery is a four-letter word outside the United States.

In civil law systems, which are in place pretty much anywhere the Union Jack didn’t once fly over (and even some where it did), demands for evidence are made by the court– not by counsel for the parties. They’re based on the Napoleonic code, very French in nature. And they’re inquisitorial systems, in which lawyers barking questions and production demands at opposing parties can be seen as a usurpation of judicial authority. As such, asking foreign authorities to serve rog’s with the summons and complaint can derail the whole thing.

But even in common law jurisdictions (eg: naturally, England and the anglophone provinces of Canada), U.S.-style discovery is frowned upon. Sending discovery demands to those jurisdictions is just not a great idea if you can help it.

Unless there’s a truly compelling reason to include the first discovery shot with process, leave it out.

* Yes, Texas, I see you there. It’s a Citation in your world, I know.

Yelow
Edu Lauton, Unsplash

From time to time, I’ll have a client ask about the most appropriate way to advise the court that a Hague Service Request has been submitted to a foreign Central Authority, in the interest of avoiding a benchslap due to long wait times. My stock answer: don’t.

Don’t do it because you’re just inviting unnecessary scrutiny.  Be ready to answer the question if it comes up, but know that it very frequently doesn’t come up. If you’re in federal court, especially S.D.N.Y. or C.D. Cal. or (the big ones for IP) W.D. or E.D. Tex., trust that the court has been down this road before– routinely– so they get it.  If you do happen to receive one of those automated 90-day nastygrams directing you to show cause for your highly disrespectful flouting of all expectations good and holy, respond then.  It seems counterintuitive, I know, but being proactive here is not a good idea. Being reactive, quickly and forcefully so, is the best course of action. Hear me out on two scenarios:

Scenario 1

Larry Litigator has a defendant in China. He calls me one bright Tuesday morning and asks if my firm handles the Hague Service Convention (ahem, yes, exclusively). He hires us to check out the defendant’s identity and whereabouts, get the summons and complaint translated, and file the appropriate request with the Central Authority in Beijing. My staff sends Larry confirmation of the filing, along with my reminder that things just take longer over there, but also that he has a friend in Rule 4(m)— so the court can’t ding him because it could be a year or two before Chinese authorities send us proof of service. Larry files an advisory with the court indicating that he’s done his job and gotten the procedure underway in the People’s Republic of China, and now he has to wait, and by golly, he doesn’t know how long.

Three months later, he gets a show cause order demanding that he justify his failure to serve the defendant within the allotted time frame. Somebody at the court didn’t read all of Rule 4(m), so they don’t know the ordinary deadline goes out the window. Still, because Larry told them what was going on earlier, their curiosity is piqued. Larry is scared into throwing himself on the mercy of the court, and promises to provide updates every 90 days until proof comes back. Larry now has to file the same “gee, Your Honor, we still don’t have anything back” advisory. And he’s created a whole bunch of unnecessary work for himself– work that still neither satisfies the court nor speeds the docket along. Halfway through the second year, proof finally arrives and the judge still looks at Larry wondering why he didn’t make this whole thing go more quickly.

Scenario 2

Laura Litigator has a defendant in China. She calls me one sunny Tuesday afternoon and asks if my firm handles the Hague Service Convention (ibid). She hires us to check out the defendant’s identity and whereabouts, get the summons and complaint translated, and file the appropriate request with the Central Authority in Beijing. My staff sends Laura confirmation of the filing, along with my reminder that things take longer over there and she has a friend in Rule 4(m) and the court can’t ding her because the Chinese authorities take so long… in short, Laura, relax. It may happen slowly, but it’ll still happen.

Laura goes on with her life, content in the knowledge that proof is coming eventually, and that she might even know it’s done before I do (completely normal, that). At the 90-day mark, an nasty email pops into Laura’s inbox from the clerk’s automated system. “It’s been 90 days and you have failed to serve your defendant. Explain yourself or your case will be dismissed.” Somebody at the court didn’t read all of Rule 4(m), so they don’t know the ordinary deadline goes out the window.

Laura files a responsive pleading laying out the steps she’s taken– hiring us being the first step– and showing that she got the Request on file in Beijing well prior to the 90-day mark. She advises the court that she’ll prove service as soon as the Chinese government finishes its work, and she can provide no updates until that happens. Oh, and you guys in the clerk’s office ought to read all of 4(m). Just sayin‘. We’ll know when we know– and if you can think of a way to get the People’s Republic of China to do your bidding, I welcome suggestions.

Three months later, another automated nastygram pops into her inbox and she simply replies, “hey, did you guys ever read 4(m)?”

So who’s happier?

Laura.

Laura is happier.

USDS HQ
U.S. Department of State. Take the Orange or Blue lines to Foggy Bottom-GWU. Silver too.

[This rant is designed to guide my clients in getting the right paperwork generated for service by diplomatic channels. If I’ve sent you a link to this, that means you have to press the issue with your clerk of court– not because I want to create more work for the court staff, but the opposite. I want to minimize their workload and smooth the road to successful service. I’m not joking here– when I say I need exemplified copies of your Letter Rogatory, I mean exemplified. Not certified, not verified… exemplified. It’s a term of art, used for a very specific purpose.]

When we seek service on a defendant located in a non-Hague Service Convention country (or a recalcitrant Hague country), we often use a Letter Rogatory, in which the judge hearing the case asks a judge in the foreign country to order service effected according to that country’s laws. Once the judge signs the Letter, we send it and the service documents (along with a translation and duplicate copies, as well as a hellaciously expensive postage stamp*) to the U.S. Department of State. From there, the good folks at Foggy Bottom send all that in a diplomatic bag to our embassy in Notamerica, and consular staff there hands it off to the host country’s foreign ministry. Atop that stack of documents is one more page, by which the Secretary of State certifies to the foreign government that, yes, this is an official document signed by a real judge in a real court in the United States of America.

That certification is far easier for the State Department to justify, and thus, far quicker to generate, if the copies of a Letter Rogatory are exemplified. Not certified– exemplified. There’s a difference. (Notice how every single mention of exemplification in this post is in bold italics? That’s by design.)

All federal courts, and more than a handful of states’ courts (including the big systems in New York, California, Illinois, Florida, and Texas) have a standard form for exemplification. They’re not frequently used in many places, but they do exist, and it’s the responsibility of the clerks of court to properly issue them.

But you wouldn’t know it judging by the pushback we’ve received lately from several clerks– in four of the last five Letters Rogatory we’ve generated, the clerk of the court has insisted that “oh, hush– it’s certified, and that’s just fine.”

Except, no. No, it’s not just fine.

So we’ve begun including an additional document in the work product we generate for our clients. Previously, it was simply the draft Letter Rogatory and application for its issuance. The new document is a proposed order that specifically directs the clerk to issue two exemplified copies of each Letter Rogatory.

And still, they don’t get it. We’ve even begun specifying the form number (federal: AO 132, available here) so there can be zero doubt in the clerk’s mind what we need.

No, really. Exemplification is necessary. Don’t let the clerk tell you otherwise.

* A fee of $2,275.00 paid by cashier’s check. The most expensive postage stamp you’ll ever buy.

Another statement we hear regularly from colleagues who very legitimately seek to save costs– and others who just want to shortcut the process in a super-cheap, super-quick way without worrying about proper procedure:

We’re going to serve alternatively instead of using the Hague.

Impossible to let that one go by without some discussion. Why? Because unless service happens (1) here in the U.S. or (2) in a Hague Service Convention jurisdiction that makes Article 10 available…

THERE ARE NO ALTERNATIVES

Let me elaborate.

This isn’t one of Aaron’s off-the-cuff, smart-aleck exclamations (though there are many of those). It comes from no less an authority than a very nice lady from Arizona, the Honorable Sandra Day O’Connor. You might have heard of her. In Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), Justice O’Connor made very clear that:

  • if the Convention applies, thou shalt adhere to it (at 699), and
  • the methods outlined in the Convention constitute an exclusive menu of options (at 706), so thou shalt not get cute.

The Convention lays out a primary method of serving defendants abroad: a Request pursuant to Article 5, sent to the designated Central Authority tasked with executing such requests. Article 10 offers alternative avenues to valid service, provided the state of destination does not object. Where the destination state does object, no alternatives are available within the confines of the treaty.*

Notice the condition of the first holding, though: if the Convention applies. That’s a complex issue. Here’s the roadmap to addressing it:

  1. Threshold question: do you have to serve (term of art), or just provide notice?  The Hague Service Convention doesn’t govern mere notice—just service.  So if you only need to notify a party, don’t sweat the Convention.**
  2. Do the documents absolutely, positively have to go to the foreign country to be served?  Article 1 is pretty clear: “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.”  (Emphasis mine.) If the docs have to cross a border, you’re probably on the hook.
  3. Can you serve your offshore defendant via his/her/its agent here in the United States?  If so, you’re off the hook.***  If you can’t get it done here, keep reading.
  4. Is the destination country a Hague Service Convention signatory? If no, don’t sweat the Convention. If yes, keep reading.
  5. Do you have the defendant’s address?  If so, you’re definitely on the hook.  The Convention applies, so follow Justice O’Connor’s directive.  If not, “This Convention shall not apply where the address of the person to be served with the document is not known.”  Don’t sweat the Convention—alternatives, including electronic service, are just fine.  Just know that you can’t simply shrug and disavow any knowledge of the defendant’s whereabouts.  You still have to be diligent in trying to find the guy.
  6. Does the destination country object to Article 10 alternatives? (This gets to O’Connor’s second holding.) If not, then you’re still limited to that country’s allowable options, but those can be pretty flexible. But in what I call “5-O” countries, sorry. Your only avenue to valid service runs through that country’s Hague Central Authority.

So let’s say you’ve gone through that roadmap and determined that yes, you do have to serve in Korea or Mexico or Switzerland or Brazil or China or any other 5-O country.  You don’t have a choice in the matter.

So don’t get cute.

* Letters Rogatory are always available– and they don’t flout the Convention, which opens the door wide to service via diplomatic channels. But considering them an “alternative” is a bit off-bubble. Who would go to even more trouble than the Convention requires? (Well, turns out, there may be a place where it’s necessary.)

** Language geek note here: the English version of the treaty just addresses service. The equally applicable French version differentiates between notification and signification, but that is a civil law distinction that I argue isn’t germane to common law matters. It reflects various degrees of formality that we just don’t get into and they do.

*** This includes service via the defendant’s U.S. counsel, but pay heed: such service doesn’t happen pursuant to a 4(f)(3) order— it has to arise by agency theory.

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Evangelina Silina, Unsplash

We handle Hague Service Requests for lawsuits in courts across the continent, from Puerto Rico to Guam to Nunavut (yes, Nunavut, the Canadian territory way up on the Arctic Ocean.) All of our clients are attorneys and their firms. All. That is an absolute. Occasionally, though, when we send a client an engagement letter, the client will ask us to revise and address it to the litigant. My response:

Sorry, we can’t do that.

Or, more accurately stated, we won’t do that, for a host of reasons.

For starters, I’m admitted to practice in Missouri. End of list. Even though my practice is limited to transnational legal doctrine, that means there’s a less-than-two percent chance that I can advise that litigant without the possibility of a UPL charge. I’d beat the charge (federal issue, after all), but it’s just not worth it.

Second, advising a litigant directly means getting in the middle of an attorney-client relationship. In that situation, I might say something that contradicts what the litigant’s lawyer told them, which could make the lawyer look bad. Even with that lawyer’s fully informed consent and direction, no thanks. I’m not about to cast that colleague in even a glimmer of bad light.

Third, if we take an engagement with the litigant, the litigant might think that I’m his or her lawyer. I’m not, and I don’t want even a hint of a possibility that s/he will think so.

And last, if a litigant engages us directly, that naturally gives the impression that they call the shots and can ring us up and pepper us with questions and tell us what to do. Nope, not gonna do that. My job is to explain relevant/applicable doctrines of international and foreign (many of them arcane and obscure) law to my clients, and then to apply those doctrines to a case in controversy. It’s far easier, and takes significantly less time, to explain those doctrines to attorneys and paralegals who are already up to speed on the domestic law that applies as well.

To be sure, our fees can be paid by a litigant. That’s often necessary just in the interest of expediency. But the ultimate shot-caller, if there are any calls to be made, is the litigant’s lawyer.

Author’s note: I’ve varied from this rule three times in my career. Two of them were unmitigated disasters, and the other was no picnic.

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I’m an insurance lawyer, I’ll never need to serve anybody in a foreign country.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of the Game of Thrones guy into your slide deck!

Seriously.
This is Boromir.  I use him all the time in CLE decks and in blogs. Why reinvent the wheel? (To be sure, this is not Ned Stark.  He just looks like Ned Stark.)

Wait a sec, there, pal.  It’s likely that you will have to serve abroad someday.  Ever handle a subrogation case?  (Yes.)  Ever sue a manufacturer of a defective product that caused property damage or injury?  (Yes.)  Think Toyota or Krupps or Gree Electric Appliances might be your defendant?  (Hmmmm.)  Bear with me here…

Rule 4 (Fed. R. Civ. P.) and its state analogs will govern your quest, and they start off right up front with service of process. Rule 4(f) specifically incorporates the Hague Service Convention, and even if it didn’t, Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), does.  Schlunk says specifically that if the Convention applies, you have to follow it. And it doesn’t matter whether it’s a divorce or a contract dispute or a subrogation case.

Yet, rejoice, dear colleagues who represent insurors who just want to recoup their losses.  You are under no heavier a burden than the rest of us.  Just pretend you’re trying an injury action or a patent infringement or what have you. There is literally no difference in how you get service effected.

There’s a problem, though:  proper Hague service takes a while.  A very long while in many instances.  And Rule 4(m) says you have to have a defendant served in 90 days or the court has to dismiss the action.*

Except, no.  Rule 4(m) sets out a 90-day deadline for service, but that deadline is also inapplicable to service abroad.

Simply put, if you have to serve a defendant outside the United States, it probably won’t happen quickly.  Sure, we might be able to get it done in England or (Anglophone) Canada within a couple of days.

Nnnnnnneee!
Nnnnnnneee!

In France?  Non.  Germany?  Nein.  The Netherlands?  Nee. —>

Okay, maybe a short time in the Netherlands. But in Mexico or China or India?  Not a snowball’s chance in hell.

It bears repeating.  The Hague Service Convention controls how all this gets done wherever it applies.  It’s a treaty, to which the United States is a party, and which entered into force right about the time my mom graduated from high school.  Thanks to the Supremacy Clause, its strictures override lesser laws. A gentle reminder:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  (Art. VI-2)

(Emphasis mine.)

In short, if the judge balks at keeping your case on the docket past Day 90, tell the judge that James Madison & Alexander Hamilton said they have to.

* State rules vary, of course. Many simply track FRCP 4(m), while others allow enlargement for good cause, and what better cause can there be than a crystal clear edict from Justice O’Connor? (Sorry, Wisconsin & Michigan… you’re my problem jurisdictions. In order to reach the same result, y’all have to resort to Equal Protection arguments!)

Stopwatch
William Warby, Unsplash

Short answer: no.

It is what it is, y’all, especially in what I call “5-0” countries. The lack of options is the biggest inhibitor to speedy service, and believe me, if there’s a better way to go, I’m going to sing it from the rooftops.

What do I mean?

Well, the Hague Service Convention essentially offers two viable options, with a sort of hybrid of the two:

  • Article 5 service, in which we request the assistance of a designated Hague Central Authority to effect service according to the foreign country’s law.
  • Article 10 service– 10(b) originating from the U.S. or 10(c) service from Canada*– in which we directly engage “competent persons” in the foreign country. Think process servers in Australia or judicial bailiffs in the Netherlands.
  • Article 5(b) service, in which we ask the Central Authority to appoint our chosen affiliates and agents to get the job done. This is done to get the best of both worlds: speed and control thanks to a private or quasi-private operative, along with the official imprimatur of the state.

The 10(b)/10(c)/5(b) options are what I mean when I say that, if there’s a better way to go, I’m going to sing it from the rooftops. Those are the methods I recommend most wholeheartedly. But with garden-variety Article 5 Requests, there’s often little to sing about. Simply put, do not pass go, do not collect $200. In places like Vietnam and China and Mexico, there’s no feasible way to speed up the process, and that process can take seemingly forever.

There’s no way around that dilemma, contrary to a whole lot of horrible, terrible, no good case law that says “nah, go ahead and do it by email, regardless of what Justice O’Connor says.”

There is hope in a couple of different ways, both to keep the court at bay and (to a lesser degree) to assuage your client’s frustration that it takes so blasted long.

  1. There’s safe harbor in every rulebook out there except two– and constitutional arguments can be made about both of those. Most notably, U.S. federal rules specifically lift the ordinary service deadline, so as long as you’re diligent about getting the process started, the court can’t ding you when the local judicial officials in Biên Hòa or Guangdong or Sonora take a year to open their mail.
  2. In many countries, like Switzerland and Korea, it takes comparatively little time for proof to come back. No, there’s no valid alternative to Central Authority service, but those authorities get the job done in a relatively speedy manner.

In short, relax. You have to let them do their job.

* Subtle difference between the two here. Simply put, if I direct service of U.S. process in an Article 10 country, I can do it pursuant to Article 10(b) because attorneys are designated as forwarding authorities for the purpose of the Convention. But for me to direct service of Canadian process, it’s 10(c) because I’m not a member of a Canadian law society. But I’m still an interested person under that section.

It began as a mistake
Santa Barbara, Unsplash

TL;DR: think Miranda. Anything you say in a filing about proof of Hague Service could be used against you. So don’t say anything. Also, I’m a nerd who digs arcane Latin terms like probatur even though I never studied Latin.

A bit of background is in order here.

My firm’s primary job is to have service effected on defendants located abroad. We provide our clients (all lawyers) either of two types of proof when a job is completed:

  • When we have service effected through official channels, it’s a Certificate prescribed by Article 6 of the Hague Service Convention.
  • When we serve privately in, say, England or Australia, it’s a full-blown affidavit rather than the standard proof form used by the forum court. Those just don’t say enough about how service is effective.

On more than a couple of occasions over the past year, my clients have filed proof of overseas service in the same manner in which they file proofs of service that’s effected in their own hometown. They’ll take the Hague Certificate or affidavit I send them, and overlay that proof with their own affidavit giving a rundown of how they made things happen.

That can be problematic, especially when they embellish what the proof says, using the term “personal” service unadvisedly (I’ll develop that momentarily). It’s almost always unnecessary to elaborate, especially in federal court, where Rule 4(l)(2) — that’s Four Elle Two — just says proof of service abroad has to be either [a] prescribed by a treaty (eg: a Hague Certificate) or [b] satisfactory in the court’s view to demonstrate good service. We strive to ensure that everything the court needs to know is laid down in the affidavit provided by our overseas agents. Article 6 does that by design– literally everything the court needs is right there in the Certificate.

A takeaway I gleaned not long ago from The Secret Barrister (which I highly recommend) is this: yes, legislatures make statutes, but judges feel an instinctive need to put their own gloss on the text of those statutes.  They can’t help it. It’s an irresistible urge. I have something to say about this and I’m gonna say it!

That’s bad. At one time or another, every lawyer is on the receiving end of judicial error, and it’s infuriating when a judge reads something into text that just isn’t there (read about my white whale here).

The rest of us– lawyers who don’t wear black robes and bang little wooden hammers on our desks– are prone to the same irresistible urge. I have something to say about this and I’m gonna say it!

That’s bad too.*

What do I mean by using the term “personal” service unadvisedly? Well, depending on how “personal” is defined, you could be making an incorrect statement, prompting very silly arguments by defense counsel. To be sure, you’ll win the fight– calling substituted service personal, even innocently, doesn’t negate the legal effectiveness of that service. But it’s an avoidable fight, and one that just wastes everybody’s time.

In the majority of our projects, process isn’t actually placed into a defendant’s hands. Rather, it’s handed to a family member or housekeeper, popped into a mail slot, or taped to the defendant’s door. That doesn’t negate its effectiveness, but that service arguably isn’t personal.

So don’t add your own gloss to the document. Just say “here’s the proof of service” and let the probatur ipsa do its loquitur thing.

* Craig Ferguson, that hilarious Scotsman-turned-Yank, offers a three-question rule that he applies every time he has an urge to say something potentially damaging (this clip is a bit NSFW). (1) Does this need to be said? (2) Does this need to be said by me? (3) Does this need to be said by me, now? That rule has saved me a whole bunch of heartache (yes, I still break it regularly, but less frequently as I reach middle age).

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Vladimir Solomianyi, Unsplash

This is a tough one to explain to civilians (read: litigants), which is one reason we don’t work directly with civilians. Lawyers get it, which is one reason we love working for lawyers, and only for lawyers. Not to sound too much like Henry Hill, but pre-payment is just something we can’t waver from.

Simply put, I absolutely hate having to chase a client down for money. I hate having a relationship sour because of it. I hate thinking highly of a colleague at the beginning and then thinking poorly of that same colleague later when my firm is owed several thousand dollars but we’ve gone two years without being paid.

See, if I can’t get somebody to pay for our involvement up front (with the protection of trust accounting rules, of course) it’s going to be even more difficult prying fees out of them when the work is done. What we do can’t be undone– we can’t un-effect service just because our client refuses to pay, and it’s unethical to withhold proof of service just because we haven’t gotten our vig.

The biggest challenge with many of our larger clients (think AmLaw 200 firms) is just getting the check cut, and if that happens, we’ll start working while FedEx does its thing.* We have great relationships with those firms’ litigators, but those litigators rely on their accounting offices to cut the checks, and the folks in accounting often see no urgency to get a bill paid when the work’s already been done. They’ll get to it when they get to it, and we’re too small an operation to work that way.

Another challenge across the board is “we pay when we’re paid,” essentially meaning that it’s all up to the litigant to cut a check. Again, if I can’t get somebody to pay for our involvement up front, it’s going to be even more difficult prying fees out of them when the work is done. It’s perfectly understandable that the parties’ counsel isn’t willing to front our costs.

It’s just that simple.

(Side note: we don’t take credit cards either. Some of the projects we handle top out in the six-figure range, and to think that Amex or Visa or MasterCard get five grand for a single transaction… no thanks. It’s also (arguably) unethical to pass along those fees to a litigant, so… no thanks. On the other hand, ACH and traditional wire transfers are incredibly simple in this day & age. We do accept those.)

* Notice that I didn’t say “while the post office does its thing”. I hate to say it, but relying on the post office these days isn’t just unwise. It’s irresponsible.