TL;DR: think Miranda. Anything you say in a filing about proof of Hague Service could be used against you. So don’t say anything. Also, I’m a nerd who digs arcane Latin terms like probatur even though I never studied Latin.

A bit of background is in order here.

My firm’s primary job is to have service effected on defendants located abroad. We provide our clients (all lawyers) either of two types of proof when a job is completed:

• When we have service effected through official channels, it’s a Certificate prescribed by Article 6 of the Hague Service Convention.
• When we serve privately in, say, England or Australia, it’s a full-blown affidavit rather than the standard proof form used by the forum court. Those just don’t say enough about how service is effective.

On more than a couple of occasions over the past year, my clients have filed proof of overseas service in the same manner in which they file proofs of service that’s effected in their own hometown. They’ll take the Hague Certificate or affidavit I send them, and overlay that proof with their own affidavit giving a rundown of how they made things happen.

That can be problematic, especially when they embellish what the proof says, using the term “personal” service unadvisedly (I’ll develop that momentarily). It’s almost always unnecessary to elaborate, especially in federal court, where Rule 4(l)(2) — that’s Four Elle Two — just says proof of service abroad has to be either [a] prescribed by a treaty (eg: a Hague Certificate) or [b] satisfactory in the court’s view to demonstrate good service. We strive to ensure that everything the court needs to know is laid down in the affidavit provided by our overseas agents. Article 6 does that by design– literally everything the court needs is right there in the Certificate.

A takeaway I gleaned not long ago from The Secret Barrister (which I highly recommend) is this: yes, legislatures make statutes, but judges feel an instinctive need to put their own gloss on the text of those statutes.  They can’t help it. It’s an irresistible urge. I have something to say about this and I’m gonna say it!

That’s bad. At one time or another, every lawyer is on the receiving end of judicial error, and it’s infuriating when a judge reads something into text that just isn’t there (read about my white whale here).

The rest of us– lawyers who don’t wear black robes and bang little wooden hammers on our desks– are prone to the same irresistible urge. I have something to say about this and I’m gonna say it!

That’s bad too.*

What do I mean by using the term “personal” service unadvisedly? Well, depending on how “personal” is defined, you could be making an incorrect statement, prompting very silly arguments by defense counsel. To be sure, you’ll win the fight– calling substituted service personal, even innocently, doesn’t negate the legal effectiveness of that service. But it’s an avoidable fight, and one that just wastes everybody’s time.

In the majority of our projects, process isn’t actually placed into a defendant’s hands. Rather, it’s handed to a family member or housekeeper, popped into a mail slot, or taped to the defendant’s door. That doesn’t negate its effectiveness, but that service arguably isn’t personal.

So don’t add your own gloss to the document. Just say “here’s the proof of service” and let the probatur ipsa do its loquitur thing.

* Craig Ferguson, that hilarious Scotsman-turned-Yank, offers a three-question rule that he applies every time he has an urge to say something potentially damaging (this clip is a bit NSFW). (1) Does this need to be said? (2) Does this need to be said by me? (3) Does this need to be said by me, now? That rule has saved me a whole bunch of heartache (yes, I still break it regularly, but less frequently as I reach middle age).