One day toward the end of my 2L year, this wisdom came from one of my mentors, a retired Army JAG officer who had more than his share of trial experience in military and civilian courts:
Lawyers are the most helpless race of people on the planet.
“Seriously,” he said. “Have you ever noticed that lawyers can’t handle the most minor irritations of life– and we constantly expect someone else to solve our problems?”
After I started practicing, I concluded that he was right– at least, to a point. But it’s not that lawyers are incapable of dealing with picayune matters. We’re just so hyper-focused on big problems that we just don’t know what to do with the day-to-day complications of life and practice. Part of the difficulty in dealing with the seemingly small stuff is this: we have so much voluminous reading to do that we forget one of the Cardinal Rules of law school: keep reading.
A big issue that comes up now and again– “I tried to serve this thing personally, and the judge told me I had to go through the Hague.”
Well, let’s break that down a bit. You may have already “gone through the Hague”– if he meant that you had to comply with the Hague Service Convention. That’s a non sequitur thanks to Justice O’Connor. However, if he meant that you had to file a request with the foreign country’s government, the judge may not know what he’s talking about and should keep reading beyond Article 5.*
Article 5 is the primary part of the treaty, setting out the main avenue to service in other member states. But Article 10 goes a bit further to lay out alternatives…
Provided the State of destination does not object, the present Convention shall not interfere with –
a) the freedom to send judicial documents, by postal channels, directly to persons abroad,
b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,
c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.
Put another way, if the country you’re serving in doesn’t have a problem with you mailing the documents or just hiring someone in that country who is qualified to serve over there,** go right ahead. This treaty isn’t going to get in the way. It doesn’t magically validate a method that isn’t valid to begin with, but it opens alternatives to Article 5 and foreign countries’ Central Authorities.
* A not-frequent, but also not-uncommon, misconception is that Article 5 requests are actually sent to the Netherlands, and are then forwarded to the country where the defendant is located. This is why the Grumpy Gus inside my head cringes every time somebody uses the preposition “through” in this context. We don’t go “through the Hague Convention.” We request service pursuant to the Hague Service Convention (that’s the accurate colloquial name for it). Sorry to be pedantic, but the wrong terminology really screws things up here.
** A coming post in the “Keep Reading” series will describe how you can’t just read a treaty and call it good. Each state-party can make declarations (or reservations) that change how the treaty applies to them. If they object to a particular article, it’s off the table. But you have to keep reading in order to ascertain what’s left.