Venice, Italy… just before the flooding of November, 2019.

A highly relevant question comes up frequently when I’m handling a Hague Service project for my fellow lawyers:

What documents do I have to serve?

The genesis of the question is pretty straightforward– and completely reasonable.  Most litigators are unfamiliar with Hague doctrine, so they’re naturally unsure about what special paperwork has to be included in the packet.  Fortunately, it’s got a pretty easy answer (ie: “you tell me!”), but there is significant nuance behind that answer.  Aside from the request forms that must accompany the documents handed to the defendant, nothing else is necessary.  Because the Hague Service Convention goes to how documents are served– not what.   The “what” of the equation is determined by forum rules. 

Easiest way to illustrate the point: a garden-variety federal suit.

The list of what must be served is determined by the Federal Rules of Civil Procedure (Rule 4 in particular) and the forum court’s local rules. So, if you would have to serve a particular document in New York or Los Angeles or Atlanta, you also have to serve it in Mexico City or Amsterdam or Venice.  Rule 4 requires only the summons and the complaint– bearing in mind that exhibits are part of the complaint– and in most federal districts, that’s all.

Sure, common practice may include service of a civil cover sheet or ADR program guide or (gasp) a particular judge’s Rules of Civility.  However, if there isn’t a “thou shalt serve XYZ” mandate, omit it.  Just because we’ve always done it that way is not a good enough reason to bear unnecessary costs– which I’ll get to in a moment.  But local rules may affirmatively require that you serve a civil cover sheet or ADR program guide or Rules of Civility (several districts require extras).  Those rules don’t distinguish whether a defendant is in the U.S. or abroad, which can cause problems– big problems if translation is required.

If your defendant is in London, no biggie.  I might charge a small printing fee if you have more than 50 or 60 pages (some rule pamphlets are a hundred pages long) but the cost isn’t unbearable.  Let’s say your defendant is in Berlin or Beijing, though.  Translation becomes a necessary part of the equation, regardless of the defendant’s competence in English, so that 100-page set of rules might cost you $10,000 to translate.  That’s a pretty penny.  So hold down the costs by omitting anything that isn’t required.  And if you just think it’s required, peruse the rules– or ask the clerk to cite the rule that mandates it.

 

Best cacio e pepe in Italy.

Completely off-topic for a legal blog… if you come to Rome and don’t have cacio e pepe, you are criminally negligent.

My favorite: Ristorante Terme di Diocleziano.  I cannot overstate the awesomeness of this place.  Really.

Your Google coordinates…

Ristorante Terme di Diocleziano
Via del Viminale, 3/A, 00184 Roma RM, Italy
+39 06 487 2120
https://maps.app.goo.gl/FsW8UyqMdJMyuG5r6

Bills go in the bottom door. As do, apparently, mailed summonses from the United States. (Image credit: GabrielleMerk, via Wikimedia Commons.)

Query from a colleague last week: hey, Aaron, settle a bet for me.  Does Switzerland object to Article 10(a) of the Hague Service Convention?

“Emphatically,” I responded.  And went on to tell him that if he tried serving his Swiss defendant by mail, the time it would take to quash it could be clocked with an egg timer.

Apparently, there had been much debate within his firm over whether they could simply FedEx the summons & complaint to Zurich, because the Hague Service Convention allows it.

Turns out, he was right, and his officemates were wrong– yes, the Convention does indeed permit* service by “postal channels” in countries that do not object to it.  Switzerland objects.  End of debate.

But why that’s such a slam dunk conclusion bears repeating.  A couple of basic elements at work in the analysis:

where it applies, The Hague Service Convention is mandatory and exclusive.

See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), for Justice O’Connor’s take on the matter.  “Where it applies” is pretty critical stuff, but in short, the HSC applies if a plaintiff has to send documents to another Convention country for service (predicated, of course, on knowing the defendant’s address).  Need to serve a Swiss defendant in Switzerland?  The Convention applies.  Period.  It’s mandatory doctrine.  486 U.S. at 699.  And it’s exclusive doctrine.  486 U.S. at 706.

Fortunately, that gives you some latitude in the form of Alternative Means in Article 10.  Namely…

  • Art. 10(a) allows service by mail or courier– think FedEx or UPS in addition to the post office.  Frankly, I think this is usually a bad idea— not because of its legal validity, but because it presents some pretty steep fact challenges.  It’s also very easy to screw up if you ignore Rule 4(f)(2)(C)(ii).
  • Art. 10(b) [and in some instances, 10(c)] allows a plaintiff to directly engage a judicial official or “other competent person” who can effect service.  This one is awfully handy, and I’m very fortunate to do quite a bit of work under this article with colleagues abroad.
BUT…
Article 10 Alternatives are available only where the destination country is okay with them.

It’s right there in the text of the Article:  “Provided the State of destination does not object, the present Convention shall not interfere with... ”  (emphasis added).  Put another way, you can’t just read the treaty and call it a day.  You have to dig a bit for the destination state’s declarations, because declarations (or, with other treaties, reservations) effect what treaty text is actually in force.  If a signatory nation specifically reserves or declares objection to a particular term or article in a multilateral treaty, that particular term or article does not go into effect for that country.

Examples:

  • Between the United States and Canada, Article 10 is wide open– because neither country objects.  Mail it,** hire a process server/sheriff/bailiff/etc., and you’re good to go.
  • Between either of those countries and India, no dice.  India objects, so you can’t “just hire a guy in Mumbai” to serve your client’s soon-to-be-ex-husband.
  • Likewise China, Russia, Venezuela, Germany, Japan, Korea.
  • If that same soon-to-be-ex-husband flies to Toronto, you’re good to go.  See bullet #1 above.
  • And back to our original example… mailing to a Swiss address?  Nope.  Switzerland objects.  End of debate.

By its own terms, Article 10 goes out the window if an objection is raised.  If you see “No opposition” in the chart for each country’s position on the question, then you’re solid.

BUT even then, “competent persons” are often defined very specifically.

Civil law jurisdictions don’t have process servers– at least, not in the way we common law lawyers understand them.  Because service of documents is a prerogative of the court, rather than of the plaintiff, they designate specialized professionals to carry out the act.  In most cases, particularly in the Netherlands, Belgium, and France, bailiffs enjoy a statutory monopoly on service.  Consequently, a private investigator can’t serve in those countries, like they can in the U.S., Australia, or the English-speaking provinces of Canada.

And it’s not just civil law jurisdictions that restrict who can or cannot serve under Article 10.  In Ireland, Northern Ireland, and England & Wales, private process servers can effect service, but they aren’t the “competent persons” referred to in 10(b) and 10(c).  That designation applies to solicitors, who then direct process servers as their agents.  Absent a solicitor’s involvement, private service in those countries is invalid.

So what happens if Article 10 methods aren’t available?

An easy, though not always a happy, answer: an Article 5 request, dispatched to the destination country’s Hague Central Authority.  Or, in the case of a Swiss defendant, to the destination canton’s Central Authority (yes, you’ll need to Google some stuff).  I’m also very fortunate to do a significant amount of work under Article 5– and there are lots of nuances there, best saved for another post.  Still, it’s truly not that arduous (just time consuming in many cases).

Above all, plaintiff’s counsel has to make sure Article 10 is even possible before proceeding down that path.  Quashed service isn’t the only risk– overseas enforcement of a judgment is a losing proposition if service isn’t properly effected under the treaty– and if you “just hire a guy” to serve in China, that guy is looking at a very long prison term for usurping the authority of the state.  Chinese prisons aren’t happy places, I’m told.

 


* Last week, Ted Folkman’s Letters Blogatory carried the latest in a string of “Case of the Day” posts with discussion about the difference between “authorize” and “permit” in Rule 4, as they relate to Hague service.  Yet again, Ted is spot-on with his analysis of a distinction only a lawyer could love.

** Still a bad idea in most cases.

O’Connor, J.  Author of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).

A primer for defense counsel here– but a cautionary tale for plaintiffs’ lawyers as well.  [With a focus on federal practice, particularly Rule 4… state rules vary, but not by much.]

Hey, Aaron, how do you quash Hague service?

This one was posed to me recently by a colleague.  His understanding was that, just like here in the U.S., if your offshore client receives a summons & complaint from a U.S. court, they have to show up and defend.  And he was desperate to find a way to make the thing go away– at least for a while.

Well, don’t be so quick to think it’s all good, I responded.  There are lots of procedural requirements that plaintiffs’ counsel isn’t always aware of– prompting me to post That Hague Service Request isn’t as solid as you think some three years ago.

In all U.S. cases where it applies, the strictures of the Hague Service Convention must be adhered to.  Period.  There’s no deviation from that, despite a whole bunch of case law that says otherwise.  Says who?  Says that nice lady up above.  ^^^

I also urge defense counsel to Always Question the Validity of Hague Service Requests.  Just because your client knows about the suit doesn’t mean it’s been properly noticed, so you might be able to end the matter before it even really begins.

After we chatted for a few minutes, I concluded that my colleague’s client had been properly served– most notably because the signature on the Hague Request was that of an attorney colleague who knows how to do things the right way, and it was served by a judicial official in the foreign country.  Telling him that he should just answer the complaint was an easy conclusion.  But it got me thinking: I haven’t really put out a cohesive strategy for defense counsel on this issue, so here are just a few examples of attempted service that doesn’t cut the mustard, and some suggestions for attack…

———————————————-

Using Article 10 methods in countries that object to Article 10
  • Best example: plaintiff serves a Swiss (or Mexican or Chinese, et cetera…) defendant by FedEx, because “well, the Convention says mail is okay.”

Yes, the Convention does say, essentially, that service by postal channels is acceptable, but that is only if the State of destination does not object.  The fact that the plaintiff used FedEx rather than the U.S. Postal Service is no problem, but Switzerland objects to Article 10, so mail/courier service if off the table.  (Even if it weren’t, I contend that it’s a bad idea except in the rarest of cases.)

  • Another example: plaintiff asks her cousin to serve papers on a defendant in Mexico, because Rule 4(c)(2) says any non-party adult can serve.

Not so fast– Mexico objects to Article 10, so alternative methods are entirely inappropriate.

In countries that object to Article 10, a plaintiff has no choice but to proceed under Article 5, and that necessitates a Hague Service Request and the involvement of a Central Authority.

Coolcaesar via Wikimedia Commons.
Article 10(a) mail service not in compliance with forum rules

Much hay was made a couple of years ago when the Supreme Court resolved a circuit split large enough to drive a truck through. In Water Splash v. Menon, the Court held unanimously that mail service is permissible under Article 10(a) of the Hague Service Convention. Huzzah, everybody thought.  Now we can mail anything, any time, anywhere.

But that permissibility only matters where (1) again, the destination country doesn’t object, and (2) mail service is valid in the forum court to begin with— and even then, it must be done according to that forum’s rules.

Rule 4(f)(2)(C)(ii) authorizes mail service on defendant’s located outside judicial districts of the United States.  Easy peasy, lemon squeezy, right?

Well, no– not easy peasy.  The mailing has to originate from the Clerk of Court– and it must be sent by a means requiring a signed receipt (we’ll get to that issue in a minute).

Now, it might be argued that 4(f)(1) is the Hague Service Convention rule, so that’s where the authorization for mail service arises– and 4(f)(1) doesn’t require the Clerk or a signed receipt.  Aha, but… the Convention doesn’t expressly authorize mail service.  It permits it (go back to Water Splash).  The Convention merely steps out of the way, so as not to interfere with mail service.  Consequently, mail service has to fall under 4(f)(2)(C)(ii), thus erecting some hoops for the plaintiff to jump through.

Article 10(a) mail service that produces no factual proof

Back to my contention that mail service is a bad idea except in the rarest of cases.  The biggest reason?  Although it might be legally sound, can they prove it up?

Again, 4(f)(2)(C)(ii) requires a signed receipt, so defense counsel can hold fast on the fact question– if the plaintiff doesn’t have a receipt, they can’t prove that service was effected.  Look a little deeper– it may not be valid.

Article 10(b) service by someone not designated as a competent person

Article 10(b) allows service of U.S. process via “judicial officers, officials or other competent persons of the State of destination.”  Very often, this is also erroneously conflated with 4(c)(2), so plaintiffs will just (1) hire a guy in Paris or Amsterdam or London, (2) send the papers, and (3) the guy serves the defendant.

But forum court rules don’t determine competency under Article 10(b)– the State of Destination does.  In France and the Netherlands, bailiffs have a statutory monopoly on service of process, so not just anybody can serve.  And in England, private process servers must be directed by a solicitor.

If “some guy” walks up to your overseas defendant and hands him papers, don’t just presume that U.S. methods control.  Look a little deeper– it may not be valid.

Article 5 service predicated on a faulty request

This one is my white whale– and it’s yet another misconstruction of 4(c)(2) that just grates on me.

The U.S. designation of forwarding authorities under Article 5(3)– that is, who is empowered to sign Hague Service Requests– is limited to “any court official, any attorney, or any other person or entity authorized by the rules of the court.”  There are a host of process servers out there who argue that any non-party adult can serve under 4(c)(2), so any non-party adult can sign a Hague form.  That’s a massive leap in logic.

Joe Bob is not a lawyer.

I’ll say it again– forum court rules don’t determine who is competent to serve in foreign countries, and the act of signing a Hague request is not the same as the act of serving.  Absent a commission by the forum court, non-lawyers are not granted forwarding authority status under Rule 4.

So look a little deeper– it may not be valid.

Any service procedure not initiated in a timely manner

Rule 4(m) mandates that a defendant be served within 90 days of filing, or the court must dismiss that defendant.  But keep reading… it also specifically abrogates that deadline when the defendant is abroad.  The conclusion many attorneys reach from this is that it doesn’t matter how long they take to get the job done.  They’re half right.

No, it doesn’t matter how long it takes to get the defendant served, but this presumes that the plaintiff is not dilatory in starting Hague procedures.  Instead of unlimited time to serve, plaintiffs are under a reasonable diligence standard in cases involving service abroad.  This is generally taken to mean that, as long as a service request is filed with a foreign authority by Day 90, there’s no problem.  From that filing, it’s up to a foreign sovereign to effect service, so plaintiff’s obligation is fulfilled.

But what if they drag their feet?  What if they only call someone like me for help on Day 91?

There are lots of variables in this particular equation– most notably, if there are requests for waiver or negotiations with opposing counsel– that indicate diligence despite a Hague request being filed abroad after the 90th day.  Still, if the plaintiff does literally nothing to effect service within three months, a 4(m) dismissal (not a quash, but a dismissal) is in the offing.

———————————————-

A couple of closing thoughts

What if you do get service quashed–what’s the ultimate result?

Well, unless the plaintiff has completely exhausted all allowable time, they can always just tee it up again.  And remember– under federal rules, at least, all defendants (yes, ALL defendants*) are obliged to waive service, or they risk (1) losing a substantial fee shifting motion and (2) thoroughly annoying the judge.  The best course of action might be to just waive service arguments and fight it out on the merits– saving some grace with a judge who is really irritated by procedural antics.

But if the statute of limitation has run, or the case has already been dismissed once (sans prejudice), savvy defense counsel may be able to make the entire lawsuit vanish.

Like I said, a cautionary tale for plaintiffs (who should outsource stuff like this anyway!).

 


* See Rule 4(d)(1):  “An individual, corporation, or association that is subject to service under Rule 4(e), (f), or (h) has a duty to avoid unnecessary expenses of serving the summons.”  The reference to (f) necessarily applies the obligation to defendants located abroad.  Fee shifting is mandatory only as to U.S.-located defendants who refuse to waive.

Tenzing Norgay (right) and Edmund Hillary after successfully completing the first ascent of Mount Everest at 11.30am, 29 May 1953. Via Wikimedia Commons.

About six months ago, I hopped on a conference call with some colleagues who asked me to deliver the keynote address for the annual convention of the National Docketing Association.*  The people the organizers expected to attend are the professional staffers– mostly non-lawyers– who make sure that those magic litigation machines called “law firms” run efficiently.  In short, they’re the support people in firms and court clerks’ offices who make sure lawyers can be lawyers—and that clients can win– by handling the processes that really don’t have much connection to legal analysis.  Processes that drive lawyers nuts.

Okay, I said, what should I talk about?

“Well,” said the committee, “something to fire up our members and remind them of their worth in their organizations.  We’re going to be in Denver, so see if you can work in something about mountains and that sherpa thing that you list as your job title on LinkedIn.”

SureNo problem, I said, having not taken enough time to contemplate the sheer terror that my imposter syndrome was about to throw my way.

Somehow it was well received, and thanks to Peggy (my wife), we even had a couple of fun exercises thrown into the mix as well.  It’s time to share the highlights with a broader audience, because this stuff applies everywhere—not just in law firms and courthouses.  I analogized what we do and how our firms succeed to the intrepid climbing masters of the Himalayas: sherpas.**  A distillation of my address:

Point 1: There is no such thing as a self-made man.  Or a self-made woman.  Period.

That concept has always bugged the hell out of me– seriously.  I owe my modest success to teachers and mentors and clients and benefactors… not to mention a spectacular wife.  We all need help getting to the summit.  And without somebody there to tell us “hey, that ice sheet is about to be a 300-foot deep crevasse… don’t stand there,” we’re toast.  Every organization, every leader, every successful person has to have sherpas around.  If they don’t, success will not come.

Point 2:  We have to have faith in the people guiding us.

Face it.  You don’t know everything you need to know.  Nobody knows everything they need to know.  But if we decide we’re smarter than the people around us, we’re toast.

Point 3:  Lawyers have a tough time just accepting things on faith.

Lawyers are trained to be skeptical.  Skepticism is hammered into our thought processes from Day One of law school, and it doesn’t let up.  Ever.  So it’s tough to accept what our support team tells us without a whole bunch of justification.

Point 4: This skepticism is normal, and it’s not personal, so give us a bit of grace.

(Remember that I was speaking to 200 law firm & courthouse support staffers).  Seriously, we’re not ogres.  We’ve got layers.

Point 5:  But remember… you know your stuff better than they do, and you can do it far more efficiently than they can.

I’m constantly beating the outsourcing drum, telling lawyers that spending eight hours researching and executing an issue they can pay me to handle in two is, well, silly.  It’s also silly for lawyers to handle docketing and filing and calendaring when they have a perfectly capable docketing staff (or paralegal or L.A.) who knows how to navigate ECF/PACER.  As it turns out, knowledgeable support people are force multipliers— no matter their industry or organization.  This is particularly true in the law.

Point 6:  Without you, the lawyer isn’t going to summit the mountain.

Without Tenzing Norgay, Sir Edmund Hillary wouldn’t be Sir anything.  Instead of a knight, he’d just be Teddy the Beekeeper from Auckland.  Likewise, there’s no way a lawyer can reach the true heights of success without people to help her/him get there.  That may not mean a staff, and it may not even mean somebody like me to handle Hague Service Convention requests (<– yes, I stuck that in to get the Googlez to notice me).  But nobody succeeds without help.

See Point 1 above.

 


* Heartiest thanks to the NDA’s Executive Committee, who had the goofy idea of bringing me on board as a motivational speaker, rather than a garden-variety CLE presenter.  It really was an honor, and a whole lot of fun.

** The word “Sherpa” has a double meaning.  Capitalized, a Sherpa is a member of a tiny ethic minority native to the Himalaya Mountains.  The lowercase sherpa is a job classification, referring to the people who get western climbers to the summits of Everest, K2, etc.  They are not just porters—they’re expert guides as well, and they have a particular biological adaptation to the thin atmosphere of those peaks: their blood vessels are larger than the rest of us, so their bodies can process oxygen faster.


Some book recommendations I made:

Image by user “chaitawat“, WIkimedia Commons.

My May 18, 2018 post “How to Serve Process in China… important updates”  highlighted a pair of developments in the submission of Hague Service Convention requests to the Central Authority for the People’s Republic of China.  In short…

  1. They moved.
  2. You can’t send a fee check anymore.  Wire transfers only.

Not great news, but hopefully the post helped clear up a bit of confusiion.

Well, today I learned that the Chinese are leading the charge into the 21st century (yeah, the one we’ve been in for almost two decades) by establishing an online portal for submission of requests.  No more printing, no more FedEx or UPS delays, and no more wondering if the paperwork actually reached the right desk in Beijing. From the folks at the International Legal Cooperation Center, a unit of the Ministry of Justice in Beijing:

Dear Colleagues,

To improve the efficiency of judicial assistance in civil matters, our Ministry has developed an online Civil and Commercial Judicial Assistance System. We invite you to use this newly launched system to submit any request for judicial assistance in civil and commercial matters in the framework of Hague Service Convention, Hague Evidence Convention and bilateral treaties signed between foreign countries and China.

Please log onto www.ilcc.online, register and use.

We hope to see your requests coming onto the system very soon.

For the record, I’ve signed up but have yet to use it– I sent a couple of traditional hard copy requests over just last week– but will update this space as soon as I have a basis to comment.

And for an even more important record, other countries ought to follow China’s lead and do likewise.*


* In my original version of this column, I opined that the U.S. should especially follow China’s lead.  Turns out, we already do that, and we did it first.  ABC Legal, the company designated to process requests on behalf of the U.S. Department of Justice, provides just such an online portal.  My apologies to both for not knowing that– I don’t handle inbound requests, obviously, and I should have looked into the matter before lodging a criticism.

The Supreme Court, Manila. Aerous, via Wikimedia Commons.

Watch this space for updates… nothing really to say just yet, as I usually just advise clients to serve by mail if their defendants are in the Republic of the Philippines.  There’s currently no treaty in force, Letters Rogatory take seemingly forever, and I have yet to find a private agent or law firm there who (1) understands fully what I seek, (2) is willing to take the project on for less than an outrageous fee, and (3) I trust to actually do what needs to be done.*  Remember that old lawyers’ saying “you want good, cheap, and fast… pick two of those.”  That’s pretty much been my approach to service in the Philippines for the past five years.

But the official Philippines News Agency made a significant announcement today:

The Philippines will soon accede to the Hague Service Convention, a treaty that simplifies the process of serving court documents on parties living in another state, Foreign Affairs Undersecretary Eduardo Malaya bared  (sic) Thursday.

This is tremendous news, especially for the many individual litigants whose attorneys contact me for service in divorce actions, but also for the many business owners involved in disputes with Philippine parties.  I don’t see any indications as yet whether the Republic will object to Article 10 and its alternative methods, but this space will be updated as soon as the answers to that question and others are made available.

Stay tuned.


* The Department of State offers that “service of process in the Philippines may be effected by mail, by agent, such as a local attorney, or through letters rogatory.  Litigants may wish to consult an attorney in the Philippines before pursuing a particular method of service of process, particularly if enforcement of a U.S. judgment is contemplated in the future.”  Enforcement is right at the top of my list of concerns where a litigator chooses a simplistic means of service– particularly mail, which I generally recommend against— but in the Philippines, it’s usually the only realistic method.

** No updates as of Fall, 2019… the Hague Conference website still lacks practical information as to the Philippines’ views on the treaty.


When a U.S. litigator sues a Chinese defendant, they very rightly hop on Google seeking information on how to serve process in China.  Luckily for me, they quickly find my post on the subject, and they get up to speed.

Why is it lucky for me?  Because although many litigators follow my step-by-step guide to Hague requests and do it themselves, others conclude that a DIY approach is not the best way to go, and they bring me on board to handle the Hague procedure for them.  The engagement usually comes after they’ve filed the suit, which tells me that they’re committed to keeping the litigation stateside– and that they’ve identified the defendants’  U.S. assets.  As such, I have no real hesitation to jump right in and assist.  But there are pre-filing situations where I question the strategic rationale for litigating here in the land of E Pluribus Unum.

That’s a fun conversation to have with a plaintiff’s attorney who makes his/her living bringing lawsuits.  “Hey, might your client be better off suing the bad guys in China rather than in the United States?”

Yesterday,  my friend and colleague, Dan Harris, posted again on (the ever-entertaining, often controversial, and always compelling) China Law Blog that “(s)ince Mainland Chinese courts do not enforce U.S. judgments, it is usually (but not always) a waste of time and money to bring a lawsuit in a U.S. court against a Chinese company that does not have assets in either the United States or in a country that enforces U.S. judgments.”  This conclusion is from a guy who makes a good chunk of his living bringing lawsuits in U.S. courts against Chinese companies.  How to Sue a Chinese Company: The 101 is a pretty powerful missive.  Essentially, Dan points out what is obvious to those of us in the transnational field, but not so apparent to the thousands of litigators who don’t often pursue foreign defendants– those foreign defendants could be turnips.*  And then he delves into the intricacies of serving Chinese defendants, which is my bailiwick (see How to Serve Process in China, which carries Dan’s message of caution, and How to Serve Process in China… important updates for a primer).

The bottom line is that serving Chinese defendants is far more complicated than some folks would have you believe.  Oh, it’s just a form to fill out, they say.

Um, okay, good luck with that, I say in return.

Litigating with Chinese defendants– or offshore defendants in general– isn’t for the faint of heart, and it must not be undertaken unadvisedly.  Undertaking it advisedly might just mean doing it in an overseas court.


* As in “can’t get blood out of a… .”  That is, a U.S. litigator (or litigant) could bear thousands of dollars in costs to litigate all the way up to a decent judgment, only to find that it’s not a collectible judgment.  It ain’t over ’til the client gets a check.

Baggage claim at Schiphol. Image: kevingessner, via Wikimedia Commons.

I flew into this mess on July 24th at Schiphol Airport in Amsterdam.  We sat on the tarmac for two hours waiting for a gate to clear for us, and another half hour at the gate waiting for a qualified jetway driver to provide a means of egress.  Then the real fun started.  Three more hours in the baggage claim area, before coming to the unfortunate conclusion that Icelandair had somehow misplaced my gear.  No worries, I thought.  They’ll get this mess sorted out and bring my suitcase to my hotel in The Hague tomorrow.  My most important meeting isn’t until the next day.

Whoa, was I wrong.  I went to my most important meeting in cargo shorts and hiking shoes that I’d been wearing for three days.  Thank goodness for quick dry fabric and the clean undershirt the airline gave me in a nice toiletry kit.  To this day, they still can’t tell me if my bag was still in Kansas City or if it got misdirected in Reykjavik or if, in the most logical scenario, it was caught up in The Great Schiphol Airplane Gas Station Fiasco of 2019.  (Further research dictates that you must identify a year on such an event, because it seems to happen regularly there.)  It wasn’t until six days later that my bag was finally delivered to me… in England, where I’d ventured for a CLE seminar at Oxford University.

As I was grousing to my wife about the inconvenience– it really wasn’t tragic, as my newly formed Zen Self* had concluded– she mentioned that waiting for my lost luggage sounded a lot like the conversation I often have with my clients from time to time.  Clients who are highly agitated that they haven’t received word that their defendant had been served, and who are beside themselves with stress because procedures are going far more slowly than they thought they should.**

Absolutely, I thought.  That’s an apt analogy.

When a U.S. or Canadian litigator tries to have a defendant served here in North America, things usually go pretty smoothly, in a matter of days, if not hours.  But when the defendant is overseas, things just don’t move as quickly, so patience is not only a virtue– it’s a critical part of staying sane.  Especially in Latin America and the Far East, the wheels of justice grind slowly, and given the mandatory nature of the Hague Service Convention, those same U.S. and Canadian litigators can only just sit and deal with it.  Be Zen, just as if they’re waiting for the airline to get a lost piece of luggage to them.

Why?

Because there’s nothing to be done about it.

Pestering the foreign Central Authority isn’t going to make them move any faster and, truth be told, it might actually make them slow the process down even further.

So a bit of Zen is in order.  Just relax, and have a little faith that it’s coming.

Even the judge is just going to have to chill a bit.


* I recommend this book by a great Glaswegian named Gary John Bishop.  The greatest lesson in that book landed on my head just days before my fateful landing in the Netherlands, providing an excellent opportunity to implement the theory.  In short… when a crummy situation happens, we don’t truly get angry that it happened (it doesn’t help anyway).  We get angry because the situation conflicts violently with our expectations.  Modify your expectations, and the crummy situation is revealed to be not so bad after all.

** I try really hard to advise clients in advance that this is going to take forever.  The advice doesn’t always stick.

Go to Holland and escape that brutal July heat that typifies life in Kansas City, I thought.  It’s always nice in the Netherlands.  That’s why its people are so happy.

Ahem, not this week– although the people here are still just as friendly as ever.  The typically bright and sunny Dutch personality hasn’t waned this week, despite the hottest day EVER in the Netherlands (102.5 Fahrenheit yesterday)* and the fuel system fiasco at Schiphol (Amsterdam) Airport, which I landed smack in the middle of on Wednesday.**

The beauty of this place is striking, especially as I enjoy the house Pale Ale at Instock, right next to the Prison Gate and across Buitenhof from Parliament.  This is a very neat idea, and I stumbled across the place after finding, to my horror, that Hometown Coffee & More, where I first launched this blog three years ago, is under renovation (not closing, mercifully).  Instock’s mission is to reduce food waste by using only remaindered food from one of the country’s largest supermarket chains.  The Pale Ale is outstanding, even though it took me a moment to wrap my head around the fact that it’s brewed from potatoes that nobody wants.  My new mantra: ugly potatoes make outstanding beer.  There.  Your lesson for the day.

I can happily report that The Hague is still a nice place to be, and it’s still carrying a critical mandate: harmonize the world’s legal systems so they can work together, and make the world a better place in general.


* Climate change deniers are idiots– it’s that damned simple.  And their idiocy should be called out at every turn, especially if they hold public office and control policy decisions.  Spare me the moronic snowball arguments (oh, it’s snowing, so climate change is bunk!).  If it’s almost as hot in Amsterdam as in Phoenix, there’s a whole lot more going on than just a freak weather pattern.  The truth, though, is that it’s been very nice, despite the thermometer reading.  Low humidity and ocean breezes tend to mitigate the suffering.

** As of this writing on Friday afternoon, I still don’t have my luggage.  I really want to blame Icelandair, who doesn’t have a digital tracking system (it’s 2019, guys), but there’s no way to know whose problem it is.  I’ve become very zen in the past 48 hours!