No, really. This is what we do here. Hague Service. All the time.
Several years ago, in Always Question the Validity of Hague Service Requests, I urged lawyers for offshore defendants to dig into the content and manner of document service– and think about possibly getting it quashed. Offshore service is very frequently deficient because lots of plaintiffs’ lawyers just don’t know what they’re doing. To make matters worse, they take horrible advice from (1) colleagues who don’t know what they’re talking about, (2) foreign counsel who who don’t know what they’re talking about, or– really the worst– (3) civilians* who don’t know what they’re talking about. Sense a theme brewing here?
Given that I work almost exclusively on the plaintiffs’ side of the table, my urging begs a question: why would I give the defense such advice? If they’re ignorant enough to let it slide, what’s the problem?
It’s very simple. Even though I’m a hired gun for the plaintiffs’ bar (yes, a card-carrying member of AAJ and its Missouri affiliate, MATA**), there’s a proper way of doing things, and my higher obligation is to the law, various courts of justice, and the integrity of the profession. Few things rankle me more than one of my own people flouting the rules, whether knowingly or unwittingly. It makes us all look bad, and it harms the mission to protect the constitutional right to a trial by jury and safeguard the right to pursue justice in court for harms caused by the negligence or misconduct of others.*** (Those are AAJ’s words. Not mine.)
But what rankles me just as much as sloppy lawyering on my side? Even sloppier lawyering on the defense side. Yes, I said you should question the validity of Hague Service Requests… but don’t be silly about it. If a complete analysis tells you it’s valid, file an appearance and let it go. Again– a complete analysis.
A few weeks ago, I got an email from a client whose defendant we had had served abroad, pursuant to the foreign country’s law. This was by a private agent, who we instructed to serve pursuant to Article 10(b) of the Hague Service Convention and a specific section of that country’s procedural rules. The affidavit I wrote myself included a citation to 10(b) and those very rules. When all was said and done, that should have put the issue to bed, because the service was rock solid.
It seems, however, that some defense attorneys just don’t know how to Google. A really good place to start would be to consult the rules indicated in the affidavit, to see if they actually offer a valid basis to quash. (We defeated the quash, with brutality.)
Y’all, don’t make up specious arguments… they won’t get you where you want to go.
[I desperately want to keep ranting here. Peggy, my wife/editor/office manager, says I’ve said enough to make my point. She’s usually right, so…]
** Okay, we don’t actually carry cards. It’s a metaphor, man.
*** Way back in 1989, when I was a college freshman, my Philosophy 101 professor admonished us that “if I disagree with your opinion, I’m going to give you some grace in formulating your argument. If I agree with you, you’d better have your logic locked up tight, because I’m going to hold you to a higher standard.” I feel that way about the plaintiffs’ bar. Bad lawyering leads to bad law (see Gurung).