Several years ago, I posted my thoughts on the impracticality of litigators handling overseas service on their own. More recently, an interesting thought dawned on me. Frankly, it’s not very novel, so I couldn’t really call it an epiphany, but it’s an awfully important analysis to any trial lawyer who works on contingency.
[TL;DR… if you do the work yourself, it’s just one more part of your 33%.* If you outsource the work necessary to serve offshore defendants, it’s an expense calculated outside the 33%. Don’t even get me started on the time and frustration you’ll save yourself.]
Take a look at a 2L-style hypo. A few facts:
- Personal injury case against an automobile manufacturer.
- Not catastrophic, but to make the math easy, let’s say the case is worth about $250,000 actual and another $100,000 in punitives.
- Assume $50,000 in various expenses, like medical records and court reporters and expert witnesses and, oh yeah, process servers who go out and tag your U.S. defendants.
- But let’s also say for illustration that the carmaker is German, and the defective part was made by a supplier in China.
- You have a twenty-page complaint to serve along with the summons.
- Just for funsies– and again, easy math– let’s say you bill $500/hour when you’re doing that sort of thing and not doing contingency work.
How does the money shake out on a $350,000 settlement?
Well first, you have to determine how you get the action served. You run a Google search on how to serve process in Germany. In all likelihood, you’ll come across this post to give you a quick rundown. You then run a comparable search on on how to serve process in China. You hit this post, and then maybe this one, and perhaps even this one. In reading those, you conclude that you’ll need to fill out a USM-94 form, and when you read this post on how to do it, you realize that maybe this is going to take a while.
You’ve got three ways to go:
- Retain us to handle the whole thing (I’m not trying to get sales-pitchy here– really),
- Use the Hague Envoy document automation platform at USM94.com, or
- Handle it all yourself, including figuring out what options may or may not be available.
So now, the call of the question: where do those options fall in the financial calculation?
Well, if you’re a personal injury lawyer and you do it all yourself, it’s part of your contingency agreement. You recover no costs other than translation and shipping. All the time spent researching the ins & outs of how to do things properly… it’s part of your standard one-third of the award.* So if you spend several hours looking things up, that’s a bunch of fees you can’t deduct from the collected amount.
But when you outsource your efforts to serve abroad, it’s an expense, just like medical records and court reporters and expert witnesses.
If you win, it’s money going back into your pocket. And you don’t have to spend several hours researching a procedure you won’t touch again for a long time.
* Of course, the percentage varies by jurisdiction and common practice according to locality.