Alternate title: How to Get a Judge to Sign a Letter Rogatory.
It’s actually quite simple. Rather like getting your mom to sign your permission slip for a sixth grade field trip to the art museum.
No, really. There’s not a whole lot of fanfare in asking a judge to sign a Letter Rogatory for service in a non-Hague country. Although nothing really mandates its use,* this old-fashioned device can be critical to enforcing a judgment down the road. Just mailing process to serve is usually a bad idea, and professional process servers don’t exist in civil law jurisdictions– at least not in the way we comprehend them in the common law.
If you might have to ask an overseas court to enforce a judgment against a defendant served in, say, Taiwan or Singapore, one of the first things that court will examine is how you served process. The Letter Rogatory removes all doubt that service was effected according to the law of the jurisdiction where process is served.
Unquestionably, it is natural for a practitioner– especially a newly minted associate– to feel a bit of trepidation about the procedure. Relax. This instrument is a pro forma device, and courts understand its validity, because they use them to request judicial assistance from state to state. Missouri judges send Letters Rogatory to Alabama and Oregon from time to time. It’s not a daunting task, as long as counsel explains the logic to the court. That just requires the right vocabulary, in a Motion for Issuance of Letters Rogatory:
- Motion: “Hey, judge, we need (XYZ) and would appreciate it if the Honorable Court would grant our request for (XYZ).”
- Issuance: The judge signs the Letter, making it an officially “issued” document.
- Letter Rogatory: Just a note from one judge to another, asking for a little help– for service of process, compulsion of evidence, the chance to have dinner with the Chief Justice of the Constitutional Court while the American judge is in Paris on a CLE adventure (hint, hint)…
- One more term worth noting: Execution of the Letter. That’s what the foreign** judge does when s/he orders her/his staff to do what the Letter asks.
Simply another way to keep the wheels of justice turning. Don’t be intimidated by it.
Unless your mom was intimidating when you asked her if you could go on that field trip in 1982. In that case, flowers are always good.
* Exception: Austria, at least for now. Austrian law prohibits service of foreign process by any method that isn’t pursuant to a Letter Rogatory. For now.
** Foreign is a term of art, meaning anything outside the jurisdiction. It doesn’t just apply in a “you need a passport to go there” sense. It can also mean in the “across State Line Road” sense. French law is foreign to Missouri, but so is Kansas law. (Around here, we Missourians argue that Kansas is foreign to everything, but that’s all in good fun.)