A huge chunk of my practice arises from inquiries lawyers send through this blog– and it stands to reason. Look over to the right and you’ll see our contact information (scroll all the way to the bottom if you’re on a phone or tablet). In a perfect world, we’ll get a chance to talk on the phone, bat around ideas, and collectively grumble about the utter silliness that is the Langdellian method. Inevitably, we ask the following questions, whether by phone or email, because “hey, Aaron, what do you charge to serve a defendant overseas?” just doesn’t give me enough to go on.
Rather than give the trite lawyer answer “it depends,” I ask pretty much the same questions every time. The answers vary, of course, and often lead to more questions and ultimately, the various conclusions that I can offer as recommended next steps.
The big questions:
How many defendants?
Seemingly a simply query, but you’d be amazed at the number of folks who think a case is a case is a case, and it would cost the same to serve a single defendant in Brazil as it would to serve two each in Mexico, Germany, and Korea. This drives cost in a direct and profound way.
Where is he/she/it? (Where are they?)
The single most important question in the list. Geography drives everything, because different rules apply in Beijing than in Hong Kong. It’s done differently in Scotland than in England & Wales. Ontario versus Québec? C’est différent, mon ami. Très, très différent.
Individual or entity?
For the most part, the manner of service doesn’t change, but it some places, quirks apply, and they necessitate a different approach from one to the other. For instance, you can’t serve an individual defendant at his workplace by substitution (though you might at his home). It’s tougher to find an individual than an entity– for the same reasons abroad as you’d face here at home.
What kind of documents do you need to serve?
The word “process” does not appear in the Hague Service Convention. Seriously. Click here and do a word search. The Convention covers so much more than just the documents that initiate the case. Default notices, subsequent pleadings & amendments, continuance orders… if they have to be served in a country where it applies, then the Convention must be observed.
But what of subpoenas and other discovery demands? Well, not so much. Sure, theoretically, they might be served, but in all likelihood, they’d have no teeth, and it’s possible they might irritate the heck out of a foreign court. In civil law jurisdictions particularly, the parties don’t demand production– that’s a function of the court, so don’t usurp it! (The Hague Evidence Convention is often the key.)
Whether you’re in federal or state court doesn’t matter much in terms of Hague applicability, but which procedural rules work in tandem with the Convention is a critical question, especially with regard to timing and alternative methods. Sure, there are myriad reasons to keep the matter in state court if at all possible, but your client might be better off if you go federal at the outset.
Does your defendant speak English?
Often times, the question is irrelevant, as most non-Anglophone countries require translation as a matter of course (ie: the defendant’s comprehension of English isn’t the issue). But in places like the Netherlands, Belgium, Finland, and Québec, huge cost savings can be realized by just serving the docs as they are. It often isn’t necessary to translate.
Any chance you might be removed (or remanded) soon?
Take a gander at Civ Pro for 4L’s: Removal and Service of the Correct Summons. Getting involuntarily bumped from one venue to another changes not only the list of operative documents that must be served– it also has a profound effect on timing.
Wrapping it all up…
Of course, this is not an exhaustive list. But it does tell you why the “how much?” question is so complex, and why the classic lawyer answer “it depends” has so much more loaded into it. Above all, this is such a complex area of practice that it’s unwise to go it alone. Recognize that I am not the guy to take the lead on an IP case, a divorce, a contract dispute, or a wrongful death action– against any defendant, offshore or here at home. Those cases lie outside my expertise. Likewise, call in some help to handle the cross-border issues that inevitably pop up in those sorts of matters.
Hat tip to Dan Harris and his crew at the China Law Blog, for posting Registering China Trademarks: The Questions We Ask and International Manufacturing Agreements and the Questions We Ask, thus giving me the idea for this space.