No, really. It’s gamesmanship, it’s wrong, and it’s prejudicing your client. Think Charlie Brown and Lucy and that blasted football.

If defense counsel were going to accept service on their client’s behalf, they’d have done it already, so quit screwing around and recognize that time’s a-wastin’. Quit letting them pull the ball away at the last moment and send you flat on your back.

The biggest frustration my litigator clients face is the excruciatingly long wait that follows submission of a Hague Service Request to certain foreign authorities. We’re talking two years (<– not a typo) in many places, like India or Mexico. Plaintiffs pull their hair out in exasperation because, well, it just shouldn’t take this long. Judges and clerks are naturally irritated when the docket isn’t moving the way it should. All of these irritations are understandable. And they’re unavoidable.

Yet what is avoidable? Several things come to mind– all down to opposing counsel’s shenanigans:

(1) Silly delays brought on by opposing counsel’s foot-dragging.

Oh, gee. Let me see if my client will authorize me to accept and I’ll get back to you.

And then… crickets.

I regularly hear from prospective clients weeks or months after I’ve closed a file, saying “yeah, they said they were going to appear and still haven’t, so I guess we have to start the Hague process.” Perhaps two thirds of the projects we start and then pause are re-started again after a month or two.

Quit letting them jerk you around, gang. For starters, send the defendant a Rule 4(d) waiver request– yes, to the defendants and not their lawyers, although a courtesy copy can’t hurt– because that’s what Rule 4(d) directs you to do. Make very clear that, if they don’t waive, you will move for fee shifting to recoup the several thousand dollars spent to serve them. If they don’t get back to you in a month, you pretty much know where you stand.

If defense counsel promises to waive, ask them when specifically. If they don’t do it within a week, you pretty much know where you stand. When are you going to enter your appearance?

“I don’t know yet…” really means “I’m not going to but I want to stretch this timeline out as much as possible.”

They’re just jacking with you. Seriously, it’s a delay tactic. It may be counsel playing games, it may be that his/her client is just devious… either way, delay benefits them, not you or your client.

(2) OC gives you a service address that turns out to be bogus according to the foreign country’s registry.

If they’re that dependable or trustworthy, why in the hell don’t they just waive and save everybody but my stockbroker some trouble? I’ve actually had clients direct me to request service at an address provided by opposing counsel, despite clear indication in the defendant’s corporate registry that it should be served elsewhere. And they’re surprised a year later when the Hague Request fails.

At that point, plaintiff’s counsel cannot honestly tell the court that we don’t know the defendant’s address (in which case the Hague Service Convention doesn’t apply), but he does have to honestly tell the court that we have to tee this thing up again and waste another year waiting.

(3) OC purports to have authority to accept but actually doesn’t.

Yes, this actually happened once. Plaintiff filed suit, defense counsel told plaintiff’s counsel that he would accept on various individual defendants’ behalf. Plaintiff served him. He appeared. All seemed to be going well.

And then the defendants claimed he never had their authority to accept service or represent them in the first place. Not a good day for that lawyer.

And the plaintiff still had to pursue Hague Service.

Wrapping it all up.

I still hold to the Shakespearean maxim about adversaries in law: strive mightily, then eat and drink as friends. When I know that the party across the table is represented by a colleague that I know and trust, my job is actually easier. But trust in that colleague only goes so far; I still have to represent my client to the best of my ability, and that ability requires a little skepticism at times.

Unless you have some certainty that OC is an honest broker who has the defendant’s authority to play nice in the sandbox, don’t buy it. Or at least, don’t buy it for long.