From time to time, I catch myself ranting in this space. Not in this post, though. I had so many great conversations with clients today that my voice is hoarse. And there were so many recurring themes in those conversations that I suddenly feel the need to share my top tips for serving overseas defendants, and also to create sort of a digest of the best pieces of advice I can give a litigator who doesn’t want to screw things up. So here’s my list of highlights that I preach frequently when on the phone– along with links to some of my favorite posts over the years.
(1) Remember– it ain’t over until the client gets a check.
No, seriously. You have to think of the long game– several years down the road, so you absolutely must not pick the cheap and easy way of serving if you truly want to make your client whole.
(2) Keep it short, counsel.
Repeat after me: lawyers do not get paid by the word, but translators do. As such, don’t use twelve words when seven will do. Yes, I am even more guilty than my fellow bar exam victims, but the stuff I write doesn’t often need a translation. Save your client some cash, and be brief.
(3) Don’t sweat the time needed.
Yes, yes, the judge is grumpy or the litigant is impatient or lead counsel is breathing down your neck because of a grumpy judge or impatient litigant. But things take longer overseas. They just do.
The judge has to deal with the wait (I give you Rule 4(m) in its entirety). And if the client can’t deal with the wait, he should have picked a defendant in Boston rather than Beijing– just refer him to #1 above.
(4) But don’t sit on your hands either.
Again, you’ve got a friend in 4(m). The court has to give you the latitude to effect service properly, and in compliance with a mandatory treaty (the Hague Service Convention!). That doesn’t give you unlimited time, though– a reasonable diligence standard applies, so if you’re dilatory, you’re in trouble.
(5) Ask the defendant to waive service.
Defendants are obliged to waive, and if they don’t have a darn good reason to refuse, then the court can shift fees. I’m chomping at the bit for a test case on this issue, but recouping unnecessary costs doesn’t seem to be on anybody’s radar. No fewer than six cases have come across my desk this week with translation bills well into the five-figure range (counsel didn’t heed #2 above), but five- and six-figure translation bills are exactly what Rule 4(d) is designed to avoid.
True, getting a defendant to waive is the best way to not have to hire us to handle your Hague Service, but it’s also the best way to get your client’s money back if they won’t play ball.
(6) Make sure alternatives are actually available before you ask for them.
This is a biggie for me, and I rant frequently about alternative means of service when they really aren’t appropriate (read: legal, valid, acceptable). I don’t rant about these phantom alternatives because they prevent the flow of fees into my pocket. I rant because, sooner or later, a savvy, deep-pocketed defendant is going to take my pet 4(f)(3) gripes* to the U.S. Supreme Court and the plaintiff is going to get smacked. Hard. Take a quick read of Justice Alito’s opinion in Water Splash v. Menon… the issue before the court was utter nonsense, and he said as much, so I foresee a very similar result coming down the pike on those pet gripes.
I rant because I don’t want my people to be on the receiving end of that inevitable benchslap… my people being colleagues who ask me for guidance, whether they pay me or not.
(7) “Exercise Extreme Patience”
Why do they take longer overseas? Because things work differently overseas. Get used to it.**
No, really– contrary to popular belief, we can’t tell the rest of the world how to do things. It just doesn’t work that way. So you absolutely must sit and wait, like Job in many cases. Patient, patient, patient. It will come eventually, but shouting at the wind won’t make it come any faster.
It’ll just make you hoarse.
* I have two in particular: (1) electronic service conflicts violently with the Hague Service Convention, and (2) service on U.S. counsel cannot possibly be based on 4(f)(3).
** Hat tip to Dan Harris for the Fourth Principle here.