In a single day at the end of last month, no fewer than four of my clients pinged me to say “hey, I just got off the phone with opposing counsel telling me their client was served. Can you confirm that?” [Short answer: no.]
“Well, when are we going to get a proof?” [Short answer (as I shrug): when the foreign Central Authority sends me one.]
It is perfectly normal for your opposing counsel to call you before I even know that service has been effected. But keep in mind the progression of events when we file a request for service under Article 5 of the Hague Service Convention:
- Have the documents translated into the language required by the destination country (or as necessary under the defendant’s right to due process).
- Fill out the Request (the vaunted Form USM-94 in U.S. practice).
- Send everything to the appropriate Central Authority.
- Wait. (This is where service happens. It’s also where the Authority generates the Hague Certificate.)
- Receive proof of service. Hopefully. After a few weeks, a few months, or (depending on where it went) a couple of years. <– That’s not a typo.
To be sure, in the vast majority of cases, that progression happens without a hiccup. The world’s governments have been doing this thing since before I was born (I’m a ’71 model), and they really do have it down to a system– albeit an incredibly slow one in places.
See, the fact is, things just don’t work as quickly overseas as they do here on this vast continent called North America. U.S. and Canadian lawyers are used to having our defendants served within a matter of hours. Here, it’s a fairly pro forma exercise unless the defendant is a sneaky sort of human being, conniving to evade our wily agents of justice. But add a bureaucratic procedure to the mix and even our wheels turn more slowly than we’d like.
The query posed to me four times in a day last month is routine– truly not out of the ordinary. My clients are justifiably perplexed when I can’t tell them their defendant has been served, while their opponent clearly seems to know all about it.
It is perfectly normal for your opposing counsel to call you before I even know that service has been effected. When I say that you may know before I do, that’s because it happens all the time, and is no reason for alarm.
(Image credits, both via Wikimedia Commons: crossed fingers by Evan-Amos, telephone by Steimes.)