One of the funniest bits of homage I’ve ever seen is the Rugrats’ takeoff on the opening scene of The Godfather (see here, and giggle a bit). Says Tommy, channeling Bonasera the Undertaker: “I believe in the playground. It’s my favoritest place in the whole wild world.” It seems that some bigger kids took little Dill’s binkie and buried it in the sandbox, and Tommy was unable to defend his younger brother’s honor. Not playing well with others, those guys. A violation of the Law of the Playground.
We have our own Law of the Playground in the legal profession. It usually works pretty well, although it rankles clients to see lawyers purport to strive mightily, but treat each other as pals. What the clients don’t realize (because lawyers often don’t explain) is that everybody benefits from lawyers playing well in the sandbox.
One such example of playing nice comes right at the beginning of a suit. The easiest way to get a defendant into the case is to call up their counsel and say, “hey, this is coming, would you guys enter on it?” It’s the playing well with others doctrine writ large, and it ensures that that the playground (court) is a safe place for kids to frolic (lawyers to argue) and get their job (ie: playing) done. Let’s face it– they’re going to get you anyway, so you may as well just give in.
In federal court, giving in on service is actually required.* Defendants have a duty to waive service and, if they refuse, they get to pony up the costs borne by the plaintiff to have them served. But a slightly parallel term of art occasionally creeps into the conversation when I talk to lawyers seeking to serve defendants under the Hague Service Convention. They are under the impression that if a defendant accepts service overseas, then Hague doctrines don’t need to be followed. Although they reach essentially the same result within the U.S., at the transnational level, waiver and acceptance are not the same thing. In fact, they’re massively different– and Hague doctrine still applies when a defendant is willing to accept.
- Acceptance: “Sure. Send it on over. I won’t quibble with the guy when he shows up at my door.”
- Waiver: “Nah, don’t worry about serving it. I won’t fight the issue when I show up in court… because I believe in the playground. It’s my favoritest place in the whole wild world.”
If the foreign defendant accepts, the documents still have to be served, so there is still “occasion to transmit” them, thus implicating the Convention.** If he waives, Hague is rendered irrelevant, because there’s no occasion to transmit anything for service. Even if you’re emailing the documents to Dieter in Düsseldorf, they aren’t being served, so you don’t need to worry about Hague compliance.
A hair-splitting distinction, perhaps, but one worth noting. If you can get that foreign defendant to waive, you don’t need to hire me, so you don’t need to ask your client for another three grand up front, you don’t need a quaint little city in Holland, and you don’t need the involvement of a foreign government. Oh yeah… if the foreign defendant waives (again, in federal court), he gets a full 90 days to answer, instead of the normal 21.
Everybody on the playground wins. And nobody has to call the Bobfather.
* See FRCP 4(d).
** Article 1 of the Convention: 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.)
ADDITIONAL AUTHOR’S NOTE: A compelled waiver of service under 4(d) could render a U.S. judgment unenforceable in a foreign court, so tread lightly on the fee shifting issue.