New Orleans, Louisiana— I’ve written previously about my insistence that lawyers should outsource their international work.  I’ve also modified my thinking a bit, at least as far as nomenclature of the idea, opting instead to call it subcontracting.  At ClioCon this morning, Clio’s CEO, Jack Newton, offered a brief synopsis of his company’s 2017 Legal Trends Report.  A frightening set of statistics jumped off the screen as he went through his slide deck, and they really bring into focus my insistence about subcontracting.

Imagine a lawyer puts in an eight-hour day (just imagine it’s only eight, would ye?).  Of those eight hours, only 2.3 are spent on actual legal work.  The remainder is tied up in building business (critical, no doubt), non-billable learning (read: research the client won’t pay for) or administrative tasks.  And of the 2.3, only 1.6 actually results in dollars going into the firm’s operating account.  Twenty percent.

So how do we, Jack asked, turn those other six hours or so into dollars?  Any which way you can– especially if technology can streamline what we do.

That got me thinking more about the argument for subcontracting out work that isn’t profitable for a firm.  It reminded me of the Big Firm Partner who was incredulous that his firm would dare to look outside for help.  On anything.  Well, if Jack’s statistics are to be believed, Mr. Incredulous now has simple math to guide him.  If you’re only getting paid for twenty percent of your work, you’ve got to rethink things, man.  Really.

Law firms are under tremendous budgetary pressure, and only those who take advantage of every possible efficiency will survive the tsunami that’s been battering our little guild for going on a decade.

Canal Street, New Orleans

Peggy and I are in New Orleans this week for the Clio Cloud Conference (ClioCon, for short), in the hope of picking up some knowledge about the massive changes underway in the legal tech industry.  To be sure, mine is a very odd practice, and would not exist but for the wide range of technological marvels that we couldn’t even dream of just a few years ago.  It’s an exciting time to be a lawyer, frankly.

Yeah, it’s a bear for new graduates to find jobs in the traditional sector– I’m only five years out myself, and the white shoe firms in Kansas City didn’t even give me a first look, much less a second– but the traditional way of doing things is going away.  It’s a slow process, and a painful one, but this industry is undergoing a metamorphosis.  The caterpillar isn’t dying.  It’s merely in a chrysalis, and the butterfly is soon to emerge.  Like any industry, ours is being disrupted by technology, and that has the buggy-whip manufacturers justifiably terrified.  But for every buggy-whip maker who lost his job at the beginning of the last century, several autoworkers built careers.  I see the same thing happening in the law.  And I’m at ClioCon this week specifically to get a better handle on how that will come about.

In my own field– cross-border civil procedure– I predict a couple of things:

  • Central Authorities will, in the next five years, begin to accept electronic submissions of Hague Service requests.  Now, on its face, this seems like not much of a stretch.  But the rest of the world has yet to embrace technological enhancements to legal procedure.  Heck, there are still state courts in the U.S. that require all pleadings on paper.  Eventually, though, I envision Hague authorities allowing submission of requests at the click of a mouse.
  • Service of process by electronic means will become more and more acceptable to U.S. courts in the coming few years.  This is only logical– federal courts (with the exception of immigration courts, if you can believe it) are completely equipped for e-filing.  And that ridiculous and arcane legal fiction called publication becomes harder to justify every day.  The Mullane standard is simple enough that it makes service by email (or Facebook or LinkedIn or… insert a medium here) a practical necessity, rather than a novelty.  Before too long, some countries around the world will begin to accept it as a part of Hague Service Convention methodology.

Sooner or later, all-things-Hague will be able– at least in some countries– to be accomplished with the click of a mouse.  No muss, no fuss. I look forward to being a part of that development, and I hope to glean enough understanding of current trends at ClioCon to take full advantage of new stuff in the legal tech industry.

Stay tuned for more.

They tell me that if I tag #ClioCloud9 in my posts, the guys at LexBlog will buy me a beer.  I don’t know if that’s true, but my favorite local brew is Big Easy IPA.

[Originally published at]

A debate is simmering in the service of process community, and should come to a rolling boil in the next several years:  whether process can be legally served by electronic means.  Frankly, it ought to be—not just because it is so simple—but because it fulfills the constitutional standard much more effectively than other less practical means.

That standard?  In Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950), the Supreme Court held that service of process must be effected by a means reasonably expected to put the defendant on notice of the claim against him—and to afford him the opportunity to defend against the charges.

Traditionally, service by publication has been used to “put the whole world on notice” of a claim where a defendant could not be located.  For many years after Mullane, publication was really a plaintiff’s last (remotely) reasonable resort.  Absent finding an address by dumb luck or just happening to catch a defendant on the street, not many options were left.

In reality, the method is not reasonably calculated to do anything but increase publishers’ revenue.  Its effectiveness is a gross legal fiction.  [Honestly, how many people read legal notices in the paper anymore, if ever?   For that matter, how many people read “the paper” anymore?]

Nowadays, though, email and social media platforms have become all but ubiquitous.  No business can expect to remain a going concern if it lacks an internet presence.  And only the most impoverished individuals—aside from militant Luddites and the very aged—lack an email address.  Yet the lion’s share of courts still reject electronic service, opting to mandate more traditional methods:  personal delivery by a process server, registered mail (ahem, good luck with that), and the all-but-useless publication.

Some states are slowly coming on board and allowing e-service to registered agents or to evasive defendants.  The real progress in case law is at the federal level, especially as to defendants located abroad.  The Federal Rules of Civil Procedure take particular care to codify the Mullane standard in Rule 4(f), which governs service on defendants located outside the United States, and 4(f)(3) specifically has been held to render “other means not prohibited by international agreement” just as valid as service effected by more traditional means.  Rio Properties, Inc. v. Rio Int’l Interlink, 284 F. 3d 1007, 1015 (9th Cir., 2002).

By its own terms (Article 1, right up front), the Hague Service Convention is specifically inapplicable where a defendant’s address is unknown, and the Inter-American Convention on Letters Rogatory & Additional Protocol is not  a treaty whose effect is mandatory (these are the only two treaties on service to which the U.S. is signatory).  If the defendant is known to be abroad, but his/her/its address cannot be ascertained, email cannot then be prohibited by international agreement.  Accordingly, courts have wide latitude to authorize service by email, especially where the plaintiff has diligently searched for the foreign defendants.  [For a thorough analysis of such a case, see D. Light Design, Inc. v. Boxin Solar Co., Ltd., unreported, No. C-13-5988 EMC (N.D. Cal., 2015).]

Look for the validity of email service to grow, especially where it becomes considered a Postal Channel under Hague Article 10(a)… more on that at a later date.  For now, a couple of practice tips…

  • Practice Tip #1:  This idea can be awfully handy with Russian defendants… the Hague Service Convention is ineffective with Russia, so request leave of court and click send.
  • Practice Tip #2:  When drafting a contract with a foreign party, don’t just designate an agent for service here in the United States… designate an agent and stipulate that they can be served electronically!