A Dissatisfied Litigant, 1845, by Honoré Daumier (1808-1879).

Most people understand that attorneys’ ethical rules prohibit us from advising another lawyer’s client because it can so easily interfere with the attorney-client relationship.  More difficult to explain, though, is why I cannot help individuals who pursue legal action in courts of law on their own.  Hopefully, this will clear things up a bit.

These folks pursuing redress on their own are called pro se (prounounced “pro-SAY”) litigants, and their lack of counsel has no bearing on the validity or magnitude of their claim.  Indeed, there are thousands of individuals who simply cannot afford a lawyer or do not qualify for assistance from Legal Aid organizations or other services.  Absent a lawyer, no attorney-client relationship exists, so I can’t interfere with it.

Still, there are two very specific reasons why I still can’t talk to you, except to determine what you need and help you find someone:

  1. Unless you’re in Missouri, I’m not licensed in your state.  If you’re outside the land of Harry Truman and Mark Twain, and I comment in depth on a question surrounding your unique circumstances, then somebody might think I just became your lawyer.  And I’m not willing to risk a charge of Unauthorized Practice of Law… and the resulting loss of my Missouri license.
  2. Even if you are in Missouri, odds are that I don’t have sufficient expertise to properly advise you on the breadth of your situation.  I’m pretty much a one-trick pony– and while it’s a great trick, you need more than the trick I offer.  If I propose a specific plan or comment on a question surrounding your unique circumstances, then somebody might think I just became your lawyer.  And I’m not willing to take on that responsibility– just like your pediatrician friend from church won’t perform your coronary bypass surgery.

Now, lest someone think we lawyers are all like Henry Hill* and friends, it’s not about money.  I give knowledge to litigants– free of charge– all the time… I just do it through their lawyers.  That’s the way it has to be.

An email I received a few weeks ago illustrates the dilemma (and this precise situation is common).  The fellow asked a straightforward question about a procedural rule.  Right up my alley, for sure.  I was confident that I had enough information to reach a conclusion, but my Spidey-Sense told me that the fellow asking the question was a non-lawyer.  Most lawyers would know the answer, though many still ask, just to confirm their thinking.**

A quick Google search confirmed that my Spidey-Sense had not let me down.  The guy seemed pretty sophisticated, but he was definitely a “civilian”.  So…

I’d be happy to help– have your attorney give me a shout and we can hammer out a strategy pretty quickly.

“Nope.  I’m pro se.  I just need to know if I can do (XYZ).”***

Sorry, friend.  I can’t advise you directly.  You’ve got to have an attorney for me to be involved in guiding you.

“I didn’t ask for advice,” he said.  “I just want to know about the fact of (XYZ).  You ambulance chasers are all alike.”

See above.

 

* To paraphrase, “Business bad? Tough, pay me. Oh, you had a fire? Tough, pay me. Place got hit by lightning, huh? Tough, pay me.”

** Imposter syndrome kicks me in the head regularly.  As such, I contend that there’s no such thing as a stupid question.  Better to ask and be right, than not ask and be wrong.

*** Specifically calls for a conclusion of law.

News dropped last week that Austria has, at long last, ratified the Hague Service Convention, which will enter into force on September 12.  Its declarations are yet to be posted to the very excellent HCCH website (they are on the Dutch government’s treaty database…), but one interesting declaration has been highlighted by the good folks at conflictoflaws.net — Austria will not allow service of documents on the state or political subdivisions via the Convention.  Instead, Austria’s declaration directs plaintiffs to use diplomatic channels instead of Convention methods (how this plays out relative to FSIA service rules remains to be seen… I doubt it will be very controversial, but easy to fumble).

So, how do you effect service of process in Austria?  Well, for the moment, the same way it’s been done all along: a Letter Rogatory, or in the case of government defendants, delivery via diplomatic channels with a translation and Notice of Suit.  In about eight weeks, the Convention kicks in and, judging by the declarations, things will work in pretty much an identical fashion as in Germany… but without decentralized authorities.

As such, until early September, I recommend that all service attempts on Austrian defendants be held, in order to avoid the astronomical costs of Letters Rogatory.  Trust me– you’ve got time, if we plan things the right way– and it will ultimately be faster anyway.

I give you… phở, (pronounced FUH, as in “fun”)  the most amazing bowl of soup in the solar system and, coincidentally, the national dish of Vietnam. North or south, it’s amazing.  No, really– love yourself enough to eat this stuff on the regular.  Codename5281 via Wikimedia Commons.

For most of my childhood, Vietnam was considered an enemy state– run by a totalitarian regime worthy of America’s scorn.  My parents’ generation fought a brutal war there, and endured a bitter division about that war here at home.  The whole idea of Vietnam was a painful wound in our nation’s psyche.  Mercifully, that changed in 1995 when Senator John McCain (R-Ariz.), who had spent seven years as a prisoner of war in the infamous “Hanoi Hilton”, argued successfully that we should normalize relations.  It was (and remains), after all, a country filled with amazing people and a culture that goes back millennia.  [Around the time President Clinton did normalize relations that same year, I discovered my all-time favorite lunch at a great little family joint in my hometown.  See above.]  But I digress.  On to business…

Since October, 2016, serving process in Vietnam has been subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter.  Some background is in order, if you’re so inclined, before we cut to the chase.

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not pertain to subpoenas, at least, not with any coercive effect.  Repeat after me—you can’t just SERVE a subpoena in Vietnam.  You have to file a Letter Rogatory, roughly similar to a Hague Evidence Request (although Vietnam is not party to the Hague Evidence Convention).  The same Cardinal Rules apply—this is dramatically different from serving a summons or notice.

Now, here’s how it’s done in Vietnam:

Article 5 Service

  • Translate the documents, and provide a signed certification from the translator. Vietnam’s declaration to Article 5(3) requires it and, although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the Central Authority in Hanoi.
  • Sit tight. It may take a while—likely several months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, provided the delivery requires a signed receipt, but I’ve always argued that it’s a bad idea anyway for precisely that reason.  If you do select this route, pay particular attention to the venue court’s rules about how mail service is initiated—in federal cases, adhere strictly to FRCP 4(f)(2)(C)(ii).
  • Engaging “other competent persons” under Article 10(b) or 10(c)?  Nope.  Sorry.

Seriously—that’s all there is to it in Vietnam.  The method is straightforward and simple.

Vietnam’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.

(My contact info is in the upper right ↗↗↗  if you’re on a desktop.  Or down below ↓↓↓  if you’re on a phone or tablet.  Just sayin’.)

Always keep in a safe place… especially if there’s a chance the holder might be abducted.

[The TL;DR of this post: get in touch with Melissa Kucinski for help in international abduction cases.]

Well over two years ago, in “The Hague Child Abduction Convention applies first” I posted a bit about that Convention’s primacy when a lawyer calls me for help in serving process in custody actions.  Where a parent has taken his/her child(ren) abroad contrary to the other parent’s wishes, or wrongfully retained the child(ren) abroad, merely pursuing a custody order in the U.S. is rarely the right first step.  From that post:

An attorney called me last week from Chicago.  He said that his client’s five year-old son had been plucked out of Illinois by his father and taken to the father’s home country, Poland.  The lawyer’s two questions:  (1) how quickly can I get the father served with a summons and custody petition under the Hague Convention, and (2) how difficult will it be to get the Polish courts to enforce the order once Cook County issues it?

Well, to answer your questions, (1) a few months, and (2) it’ll be difficult and costly. 

But those aren’t the right questions.  If I read you correctly, the primary objective is to get the child back, right?  (“Of course,” replied he.)

Then I have some good news for you.

I went on to describe how there’s no single “Hague Convention”, and offered that the Hague Child Abduction Convention (“the 1980 Convention” in common Hague parlance) provides certain speed and immediacy that the Hague Service Convention (1965) cannot.  Sure, it may still be necessary to implement the 1965 Service Convention for the divorce & custody proceedings that follow (and that’s where I come in) but if the objective is the child(ren)’s immediate return to the U.S., faster and less costly mechanisms are in place.

The even better news that I’ve been able to give lately is that we have a colleague who is significantly more knowledgeable than I am when it comes to this particular treaty and its operation.  Melissa publishes an outstanding blog on a range of cross-border family law issues, so I can unreservedly direct inquiries her way.

Every once in a while, when a colleague is stymied by limitations to serving an offshore defendant, the thought comes to mind that “hey, I might try to get leave of court to serve the defendant’s U.S. counsel.”  It’s a great idea, and if the judge signs off on it, I don’t see how it could be unreasonable under the Mullane standard.  Getting to that point, though, is often done in an entirely wrong way: using FRCP Rule 4(f)(3) as a basis for the motion.

Why is that entirely wrong?  Because 4(f)(3) doesn’t apply if service doesn’t take place abroad.

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.

Instead, the basis for granting leave to serve a defendant via U.S. counsel comes from either 4(e)(2)(C), in the case of individuals, or 4(h)(1)(B) in the case of entities.  Both say essentially the same thing…

in a judicial district of the United States:

… by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.

A whole bunch of very flawed case law uses 4(f)(3) to order service on a defendant’s lawyer here at home, and it makes me scratch my head every time.

Sure, 4(f)(3) is a great basis for leave to serve electronically, as long as it doesn’t conflict with the destination country’s declarations to the Hague Service Convention.*  But it simply makes no sense as a basis for serving U.S. counsel.  It literally defies logic and the plain language of the rule.

In a judicial district of the United States… or not within any judicial district of the United States.  The geographic distinction goes to where service takes place, not the defendant’s citizenship or domicile.

* Ted Folkman has extensive commentary on the highly flawed Gurung decision and its just-as-flawed progeny over at Letters Blogatory.  I won’t belabor that point here, except to say that it’s a very very very very very bad decision.

 

 

 

 

 

User Beneffin via Wikimedia Commons

For most lawyers human beings, it’s been a goofy three months (we’re now well into the Covid-19 pandemic).  Amid the quarantine, I’ve been incredibly fortunate to see my firm’s workload go up, but millions of my fellow Americans, including a whole bunch of lawyers, have seen their income and savings vaporize in a matter of hours.  Even as I’ve gotten busier, I’ve begun to more diligently follow the advice of one of my favorite law professors, who insisted that a good attorney absolutely must read the news, religiously.  I quit being a newshound some time ago, but lately, that has come to seem more irresponsible every day.

Enter the New York Times, which made me an offer I couldn’t refuse back when this sinister little microbe was hammering the greatest city in the world.  A more recent, awful headline ran on June 18, just as the Empire State started to get things under control:

A Tidal Wave of Bankruptcies Is Coming

“A run of defaults looks almost inevitable. At the end of the first quarter of this year, U.S. companies had amassed nearly $10.5 trillion in debt — by far the most since the Federal Reserve Bank of St. Louis began tracking the figure at the end of World War II.”

Disconcerting, to say the least.  It dawned that I’m about to get busier as the pandemic drags on, especially as more and more large entities go under.

Now, for me to say I’m an expert in corporate bankruptcy law would be like saying I can hit a major league fastball.  Sure, I understand the physics involved, and I know the mechanics it takes to connect Wonderboy with Mr. Spalding and put the thing over the fence (going “yard” as they used to say).  But I don’t have what it takes to do it.  I leave it to the experts– many of whom I’m fortunate to call my clients– and the folks this post is directed toward.

What I do know about corporate bankruptcies is that there’s a thing called “preference payments” looming over the procedure.  At first, I didn’t know what that meant exactly, and looking it up didn’t help much.  So a kind client put it in terms I could understand:  in the months leading up to bankruptcy, a debtor can’t pay its “preferred” creditors, but not pay others, because doing so puts those others at a disadvantage.  Payments made to any creditors within 90 days prior to filing may be subject to clawback under the preference payment doctrine.

Pretty reasonable, I would think.  And how do those payments get clawed back?  By an adversary proceeding connected to to the insolvency procedure itself.  The trustee literally sues the creditors (who were paid previously) for the return of those payments.  A regular bankruptcy summons is issued, and the creditor has to show up to defend against the claim, lest he/she/it be held in default.  Y’all in the bankruptcy bar know all of this.

But what if a creditor is in, say, Japan, or China, or France? 
Easy.  The Hague Service Convention kicks into gear…

… and the action must be served just like any other civil suit in a U.S. court.  That means particular rules are in place that don’t apply if the creditor is in Chicago or Fargo or Buffalo.  See here for the methodology…  but heed a particular caution: modify the summons well before you throw out the first pitch in the service procedure.  And make sure you do it the right way.  Fail either, and you’ve got yourself a natural disaster.

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…

No.

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.

No.

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?

See above.

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?

– – – – – – –

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.

 

American Cemetery, Normandy.  (Photo by the author.)

My inbox is oddly flooded this morning.  Not with the usual client inquiries (it’s a holiday, after all), but with the normal spate of promotional emails and law firm newsletters I’ve come to expect on most statutory days off.  Sure, we’ve commercialized the heck out of every holiday, but that’s happened for centuries.  For retailers and restaurants to market their wares and fares on such days becomes much less bothersome as I get older.  What is more bothersome every year is the habit of wishing the recipient a “happy” Memorial Day in the subject header.

A “happy” Memorial Day is impossible, because no joy can be taken in the sacrifices of more than a million men and women killed in America’s many battles over our roughly 250 years.  Yes, we can rejoice at the fruits of those sacrifices, most notably the freedoms we simply take for granted.  Yes, we can smile at the laughter of the children and grandchildren of a soldier killed in action.  We can appreciate the fact that, at least for the time being, we don’t face an existential threat from a foreign army.

But Memorial Day is not a happy holiday– nor is it sad.  It is cause for solemn remembrance of lives given in the cause of liberty.

 

 

“The Sword of Damocles”, Richard Westall (English, 1765-1836)

Every once in a while, a colleague will call me with a story similar to this one:

“A client just walked into my office three days ago with what looks to be a rock-solid case.  We can establish duty, breach, causation, and damages* without a whole lot of difficulty, but the defendants are in Beijing and Toronto.  The statute of limitation runs next week, so we’ve GOT to get them served before then or we’re out of luck.”

Relax, I say.  Get your complaint on file and you’ll be fine.  Toronto we can get done pretty quickly, but Beijing could take a year or more.  The court is just going to have to let you do your job.

“But if we don’t get them served by the time the statute runs, we’ll be dismissed… with prejudice!”

No, you won’t.  You’re on solid ground as long as you file the claim before the statute runs.

See, statutes of limitation(s) require a claimant to initiate proceedings before a certain time expires.  They don’t require service of the action on a defendant, because, in all but a handful of jurisdictions, service of original process can only happen after the proceedings are initiated.  And that service is subject to different time requirements than the statute of limitations might lead you to believe.

A few years ago, I opined in this space that there is no such thing as a service of process emergency.  That’s still true.

“There is urgency brought on by poor planning, poor execution, or being simply blindsided by a surprise issue.  There is a last minute realization that a foreign defendant must be joined, and a long delay will grind the litigation to a halt.  Or there is simple unfamiliarity with the rules by a practicing bar that rarely faces cross-border procedural demands.”

But it is the court’s procedural rules that govern how and when a plaintiff must serve a defendant, both here and abroad.  Those rules vary wildly, with some (including the FRCP) directly addressing defendants served abroad, and others completely missing the boat altogether (I’m looking at you us, Missouri).  But a statute of limitation(s) has nothing to do with it.  Even if it did, that statute may entirely ignore the realities of foreign countries’ laws and practices; the Schlunk decision makes pretty clear that you MUST follow the Hague Service Convention where it applies, and I promise you– India, Mexico, China, and even Germany & Switzerland, whose Hague Central Authorities are relatively fast, don’t give a whit about meeting a deadline set by a U.S. court. Even if that means a plaintiff’s access to justice are dashed.  Instead, it is up to the U.S. court to ensure that access.

Fortunately, they almost always do in situations like this.

* The QUADFECTA of negligence claims.

    U.S. Embassy, Bangkok, Thailand (State Department photo)

The most frequent sort of question to hit my inbox of late has been from lawyers all over the country, looking for a referral to foreign counsel.  Foreign in the “you need a passport to go there” sense, rather than in the “across State Line Road” sense.

  • Hey, Aaron, do you have anybody who can help me review a contract with a choice* of Greek law?
  • My client needs to enforce a Minnesota judgment in Korea.  Know anybody who can help?
  • How feasible is it to sue somebody in Australia instead of the U.S.?

In many cases, the right colleague comes to mind quickly– especially in places like Italy or England or Germany.  But if I don’t have anybody to refer to, it isn’t necessary to fret.  A great resource is available through various U.S. Embassies around the world, and I’ve had particularly good luck in using it: each embassy’s U.S. Citizen Services office maintains a list of local attorneys who have identified themselves as (1) English-speaking and (2) seeking/welcoming American clients.**

How to get there?  Exceedingly simple:  just Google “U.S. Embassy (foreign capital)” and click on the “US Citizen Services” link.  Scroll to the Local Resources section and click “Legal Assistance.”  To be sure, the Paris list is going to be significantly longer than, say, Bangkok, but that’s relative to a combination of population and commercial & economic ties.

The extent of available information varies widely as well, with the best lists even delving into discrete practice areas.  Need a commercial lawyer?  No problem.  Family law?  Okay.  Criminal defense?  You bet– and in fact, the Embassy itself will be a U.S. citizen’s best starting point for that.

In many cases, it’s a simple as that.  (And for the really complicated ones, I’m always happy to chat.)

* Choice clauses are a big deal, critically important in contracts with overseas parties.  Three important ones come to mind, and they should be specific and coordinated: choice of law, choice of operative language, and choice of venue/forum/court.  It’s a bit daft to choose Greek law, but English language and Missouri venue.  It’s even more daft to leave the issues unaddressed!

**As I understand it, both the United Kingdom and Canada provide similar resources via their diplomatic legations.