Very regularly, clients will email me a batch of documents to have served on an offshore defendant and my staff* and I will get to work putting the paperwork together. Occasionally, a document will jump off the screen at me and make me scratch my head in wonder.
One such itch recently entailed a summons issued by a state court clerk, titled “SUMMONS PURSUANT TO ARTICLE 10 OF THE HAGUE CONVENTION”, for service on a defendant in Korea.
Um, lots to unpack there.
For starters, there’s no such thing as “THE” Hague Convention. There are about forty of them, so unless you’re more specific, you aren’t really citing anything.
Second, a summons isn’t issued “pursuant” to the Convention. It’s served pursuant to the Convention, but that’s it.
Third, Korea objects to Article 10, so referencing it at all in the documents to be served threatens to derail the whole project. The folks in Seoul? They read this stuff. They’re smart people– after all, they gave us pretty cool smartphones and this K-Pop masterpiece.** Oh, and don’t get me started on an amazing thing called Korean barbecue.
But all I can do when I see that sort of thing in a summons or pleading is ask, “who wrote that?” And then I pray that it wasn’t my client because… wow, awkward.
Nine times out of ten, it’s the clerk’s drafting or it’s only my client’s drafting because “the clerk told me to do it that way.”
Ahem, no. The fact that a defendant is abroad has precisely NOTHING to do with the way the documents are drafted. Zip. Zilch. Nada. ZEE-RO. I can’t stress this enough… NOTHING.
Lex fori dictates what gets served– and I know of no procedural rule in the U.S. that derives its authority from a treaty. While lex fori dictates what gets served, the Convention and foreign law dictate how it gets served.
One of my best practice tips:
Write up the summons as if the defendant is in Philly, Boston, or Baltimore.
We’ll take it from there.
* Take the word “staff” with a grain of salt. My wife, Peggy, is my office manager, and things run a hell of a lot better around here now that she’s taken on the things that I JUST CAN’T EVEN. Calling her “staff” is, well, silly. I just can’t call her the boss lest OCDC rain fire down on my head license.
** Here’s a mind-blower: Gagnam Style came out ten years ago this summer.