TL;DR… be patient. It’s a process.

Several years ago, I published a pair of posts that are even more important to keep in mind now, in a post-pandemic world:

The spring of 2019 seems like a decade ago when you “carry the Covid”. But the point I tried to make in those posts is even more critical today. Regardless of who sits in the big chair at 1600 Pennsylvania Avenue, the United States continues to withdraw its leadership in the world and, correspondingly, its global security guarantees. This means we’re consciously abandoning many of our prior claims that we can tell everybody else what to do.

So how is that relevant to what I do? Well…

One of my favorite clients referred a colleague to me recently. The colleague engaged us to serve a defendant in Notamerica,* a jurisdiction that allows private service under certain conditions. The primary of those conditions: the Republic of Notamerica determines precisely who can serve, and how those people can serve, within its borders. We can’t hire just anybody to do the job. Notamerica is particularly straightforward and relatively easy in the Hague Service world, but things have to be done just so.

Now, any time a client sends someone my way, I try just a skosh harder to be gentle with reality checks. It’s not just my reputation on the line, but the reputation of the person who thinks highly enough of me to send me business.

When I told the new colleague that it would take a couple of weeks to get the job done, he was incensed. The plaintiff was barking at him to get the litigation underway, so he barked at me to get it done faster. He just couldn’t fathom that service couldn’t be done RIGHT DAMN NOW and insisted that I make it happen.

Sorry, replied I. It just doesn’t work that way. Quoting Archbishop Gilday from The Godfather Part III, I said… we have rules– we have very old rules.

Chief among those very old rules is one that American lawyers must internalize:

We do not call the shots over there.

Wherever “over there” is.

Colleagues, you can only properly advise your client when they go after an overseas defendant if you have the right mindset first (it also becomes much easier to manage expectations). And when you’re dealing with treaty doctrines and offshore procedural rules, that means setting aside any assumption that U.S. standards or expectations apply. A tough pill to swallow for a nation that (1) beat the Nazis, (2) beat the Empire of Japan, (3) established the Bretton Woods Order and the seven-odd decades of relative peace and prosperity that flowed from it, and (4) brought down the Soviet Union without killing a whole bunch of Soviets.

The reality is that we do not call the shots in Ireland or New South Wales or Ontario. And those are places run by people who actually like us. We also don’t call the shots in Guangdong or Anatolia or Caracas, where they definitely don’t like us.

When we American lawyers are more cognizant of how things work overseas, and accepting of the fact that we aren’t in charge, litigating across borders suddenly become a lot less frustrating.

That still doesn’t mean it’s easy, but it’s less frustrating.


* Notamerica is a fictional place, used here to protect the innocent among the practicing bar. Don’t be silly.