La Belle Équipe, Rue de Charonne, Paris 11. Yes, it’s that busy. All. The. Time. (Photo from the cafe’s Facebook page.)

We just got back from a ten-day CLE conference in Paris, the timing of which was rather unique.  Not only did it fall on the centennial of the Armistice, but it also marked the third anniversary of the horrific terrorist attacks of November 13, 2015.  Most of the carnage of that evening took place in the 11th Arrondissement, Paris’ most densely populated district.  The Bataclan– in the 11th.  The Comptoir Voltaire– in the 11th.  La Belle Équipe– not just in the 11th, but a mere two blocks from our hotel.

Without even realizing where I was, I had drinks with some friends at the Belle Équipe last week.  It was only on Monday night, as the streets began to be cordoned off by police, that it occurred to me… this was where it happened.  Nineteen people gunned down in an attack coordinated to take dozens— even hundreds– more lives.

As our bus rolled away from the hotel in the wee hours of the morning, preparations for a memorial gathering (thus the police cordon) at the Équipe were being wrapped up.  A group of American lawyers were headed home to our families, but every single one of us was acutely aware of the resilience of the neighborhood that hosted us.

They bounce back, Parisians do.  There’s a lot to be said for that.

Tijl Vercaemer, via Wikimedia Commons.

PARIS — To my great disappointment, I cannot attend the ceremonies today at the National World War I Museum in Kansas City.  In April, 2017, the museum’s commemoration of the U.S. entry into the Great War was fantastic, and today will, I imagine, be even more touching and momentous– I’m sad to miss it.  Yet what better place to be on the centenary of the Armistice than in Paris, the capital– and the heart– of the French Republic?

None.  Not my adopted hometown.  Not even Arlington.

It’s been raining– and will continue to do so all day– rather fitting weather, if you ask me.  The conflict that was to have ended war for all time was merely the preface to an even greater conflagration.  And what have we learned?  Not as much as we like to think.  So many of us remain stuck in a xenophobic, isolationistic mindset, without realizing that the only road to a peaceful world is through engagement with “the other”, through acceptance of other cultures and races and viewpoints, even if they make us cringe.  The benefits of engagement are too great to tally, and the price of pulling back measured in the saddest of statistics: lost lives.

Yet there’s a whole lot of wonder still remaining in this world.  Much cause for hope, much reason to be optimistic.  So long as we remember the loss of a century ago.

With that, I leave the real sentiment of the day to LTC John McCrae, M.D., of the Canadian Medical Corps…

In Flanders fields the poppies blow
Between the crosses, row on row,
    That mark our place; and in the sky
    The larks, still bravely singing, fly
Scarce heard amid the guns below.
We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
    Loved and were loved, and now we lie,
        In Flanders fields.
Take up our quarrel with the foe:
To you from failing hands we throw
    The torch; be yours to hold it high.
    If ye break faith with us who die
We shall not sleep, though poppies grow
        In Flanders fields.
Den Haag Centraal Station, seen through the new Dutch Ministry of Foreign Affairs.

DEN HAAG, NEDERLAND– Two years ago, I sat in this very room at Hometown Coffee & More, sweating the fact that I was about to launch what I hoped would be the key to my business.  As I clicked “Publish”, this blog was born.  And what a ride it’s been.  Without a whole bunch of guidance and encouragement from some amazing lawyers and other professionals, this wouldn’t have been possible.  Some thanks are in order, most notably to Dan Harris of the China Law Blog, Ted Folkman of Letters Blogatory, and Peggy Lukken of, well, of the sort of women that only happen once in a generation.

And a huge word of gratitude to the Permanent Bureau of the Hague Conference on Private International Law– folks who take time out of an incredibly demanding diplomatic calendar to lend a hand to practitioners like me.

Most of all, I thank the lawyers who are kind enough to follow my posts here, comment on them– positive and negative, find me on Google & use what I’ve posted, and in many cases call me up and hire me to carry water for them in peculiar areas of civil procedure.

Live from Den Haag…

On that subject, I must highlight three treaties that are critically important to American litigation: the Hague Service, Evidence, and Apostille Conventions.  But I also want to make a prediction: in the next several years, two more will make an impact on family law in the U.S.  The Child Abduction and Child Support Conventions are not widely known or understood, and it’s my goal to come back to Home Town Coffee in two years and say I lived up to my plan to highlight and publicize them to litigators back home.  Family law is an often thankless business, often focusing on the worst part of people’s lives.  I want to do what I can to lessen the blow at least a little bit.

I hope you’ll come along for the ride.  Thanks for being here over the past two years.

 

 

This afternoon, I will have the great pleasure of lecturing in Paris on UMKC’s CLE Abroad program,* along with my good friend and colleague Micah Wells.  Micah is one of those legal entrepreneurs you’re always hearing so much about, but with a decidedly unique arena: economic development across Africa.  He really is a juggernaut, and to be listed on the same bill with him is a high honor.  Y’know how James Bond’s boss, M, is always saying something like “contact our man in Hong Kong”?  Well, Micah is our man in Germany.  And Switzerland.  And Djibouti.  (You cannot make this stuff up.)

Our presentation topic is truly too broad for a single hour’s worth of CLE ethics credit, but we’ve focused the discussion on a few points that are applicable not just to guys like us whose practices cross borders, but any lawyer in North America whose clients’ issues cross borders.  And I’m here to tell, you, that’s everybody in the practicing bar.

Issue 1:  Be competent.

Yes, yes, we all know this one.  A traffic lawyer shouldn’t be handling a murder case, and a public defender shouldn’t draft his neighbor’s new LLC operating agreement.  But those are simplistic examples.  A divorce attorney has to serve her client’s husband wherever he is, but she also must understand that she can’t serve the guy in Mexico by mail.  She might need to outsource that function in order to actually be competent in the representation.  [See MRPC 1.1, 1.3, 1.4(a)(2), and 2.1.]

Issue 2:  Take reasonable fees.

If it takes a patent litigator four hours to research how to extract evidence from an offshore third-party, but still can’t make it happen, is it reasonable to bill her client for that research?  Maybe, maybe not.  But if she brings in someone better versed in the proper procedure, the cost to the client could be significantly lower.  [See also Issue 1… and MRPC 1.5.]

Issue 3:  Collaborate (or… know when to refer out, outsource, etc.).

This is a tough sell for litigators of all stripes– especially Mr. Incredulous Big Firm Partner from an earlier post (The Golden Opportunity of Efficiency).  The simple fact is, unless the attorney handling the case deals regularly with transnational issues, the client’s best interests are likely better served by bringing in a hired gun.  Just make sure it’s done properly, and with the client’s knowledge.  [See MRPC 1.6, 1.7, 1.8, 5.1, 5.2, and 5.3.]

Issue 4: Supervise Your Foreign Colleagues Effectively

Sooner or later, you will have to have somebody in another country handle something for you.  That creates a huge challenge of trust, but often one that cannot be surmounted, but if Singaporean law is going to govern how something gets done, your performance on the UBE may not fulfill your competency requirement (Issue 1).  You don’t have local counsel in Singapore?  Fine– call around.  Hit up Google for some assistance.  Know that U.S. diplomatic missions keep a list* of local, U.S.-friendly attorneys who have indicated a willingness to help.  [See MPRC 5.1.]

Notice the common thread here… outsourcing.  It all ties together with outsourcing.

Simply put, Atticus Finch*** could handle the breadth of most litigation in 1930’s Alabama.  He’d know better today.  Saul Goodman in the modern era, well… I wouldn’t bet on it.  Mr. Finch nowadays would readily recognize the need to rely on outside experts, even if his case is heard in a small town courtroom before jurors in overalls.

 


* Yes, a shameless plus for UMKC CLE Abroad and the concept more generally, but this really is a great way to explore the world while fulfilling a licensure obligation.  I highly recommend it, no matter your practice area.

** Found on each U.S. Embassy website– including the one for Paris.  Simply go to the respective Legal Assistance page and scroll to “Attorneys”.   Many lists indicate not only practice-area specifics, but also whether that foreign lawyer is admitted here in the U.S.  I’ve had pretty good luck finding top-flight colleagues this way.

*** Mockingbird Atticus, not Watchman Atticus.

The view from Stirling Castle. William Wallace bested the English here.

Two nights ago, my wife and I returned home from an all-too-brief visit to Scotland.  The daughter of some old friends got married in a beautiful ceremony in front of stunning seaside views, and then we traveled across the country & back again (this isn’t a big deal, as the country is barely eighty miles wide at the latitude we traveled).  Along the way, Peggy was a bit puzzled at times regarding terminology.

Okay, she said, we’re in Scotland, but also in England?  Huh?

Well, no.  We’re in Scotland, but also in Great Britain, and also in the United Kingdom (for now?) and the European Union (also for now).

I tried to explain that Scots are British, and Northern Irish are UK citizens but not British, and the Welsh will smack you for calling them English, as will the Scots and definitely the folks in the Republic of Ireland.  Scotch is term reserved only for whisky (not whiskey) and cellophane tape, and you refer to a person from Scotland as a Scot or Scottish.

Confused yet?  Well, you’re not alone.  Here’s a handy YouTube video that explains– very briefly– the difference between the geographic and political distinctions in the British Isles.  It’s the shortest of the bunch, but there are a slew of others that explain the various boundaries.

This is critical stuff when serving process.  It all falls under the Hague Service Convention, but saying “I need to serve a defendant in the UK” isn’t sufficiently specific to know what law governs.  Likewise, “I need to serve an Irish defendant” leaves out some critical details.  Once the defendant’s specific location is determined, the following guides are pertinent:

  • England & Wales (unified under the same legal regime)
  • Ireland (split into two jurisdictions)
  • Scotland (again, don’t call them English, or you’ll get hit)

Let me know if you need some guidance.  My understanding took decades to refine, and I’m still unsure at times.

 


To be sure, a good time was had by all– especially at the reception where (I’m am not making this up) I watched a couple of hundred Scotsmen sing The Proclaimers’ “500 Miles” to the bride and groom before their sendoff.  It was a stunning experience.  To the new Mr. and Mrs. Baird, I wish all possible joy and happiness.

 

Grace Bailey, Maine Windjammer Cruises, Camden.

[Author’s Note:  This morning, Peggy and I woke up in 1882.  No, really.  We are on board the schooner Grace Bailey for a bit of a break from Missouri’s brutal humidity & heat; if you email me this week, fuggedaboutit.  You’ll get my out-of-office response for the first time in well over two years.  Our floating home cruises by wind off the coast of Maine, lacking internet access and a cell signal and electricity (horror of horrors– we actually have to read books and talk to other human beings while underway!).  It seems the perfect reason to post today’s subject: serving in maritime cases.  Yes, this is written in advance and scheduled to post while we’re sailing, sailing, over the bounding main.  Whatever that is.]

It happens all the time.  I’ll give a lecture or mention what I do at a bar association event, and the colleague I just met will express appreciation for what I do, tell me it’s a really neat niche, and then try to convince himself that our practice areas don’t overlap.  I’m here to tell you that, yes, they do.  The conversation usually goes something like this:

Sorry, Aaron.  I’m a bankruptcy lawyer, I’ll never need to serve anybody in a foreign country.  But thanks for doing that CLE.  You’re a funny guy.  (Funny how?  I’m a clown?  I amuse you?)  No, I mean I really like how you got that picture of Ned Stark into your slide deck!

This is Boromir, from the Fellowship of the Ring. It is not Ned Stark.

I don’t react positively, as you might imagine.  [I explain their error here.]

Fortunately, though, folks who handle maritime claims know full well that their defendants are often located abroad– that’s the very nature of oceangoing– so they understand the deal.  What they sometimes don’t understand is the point in my Boromir slide (right up there ^^^).  If they’re serving Hapag-Lloyd, they can’t just serve by mail, even though mail service is clearly acceptable under the Hague Service Convention and the FRCP.  See, both Article 10 and FRCP 4(f)(2)(C) only allow mail service if the destination country allows it, and Germany doesn’t.  But the only way to know that is to either (1) read Germany’s declarations to the Convention or (2) read my blog on how to serve in Germany.

They also often don’t ponder the distinction between a defendant’s acceptance of service and its waiver of service.  There’s a massive difference between the two– one requiring adherence to Hague requirements and the other dispensing with them altogether.

And lest they think that service on Hanjin Shipping is effective by handing the documents to the captain of one of its ships while she’s in port… ahem, no.  You can’t serve the owner by merely tagging its vessel (just as you can’t serve a parent company via its U.S. subsidiary).

If you’re serving…

  • Hanjin or Hyundai, you go to Korea.
  • Maersk, to Denmark.
  • COSCO… China.
  • MSC… SwitzerlandWait– isn’t Switzerland landlocked?  Well, yes, but how many maritime lawyers are part of the Kansas City bar, smart guy?  (Several, as it turns out.)

All of those countries have different declarations & requirements.  And if you don’t satisfy those requirements…

This is Ned Stark.

* One type of maritime issue that doesn’t usually need Hague analysis: cruise ships.  I’m told that the terms and conditions of cruise companies’ tickets usually include a designated agent for service in the U.S.   Who knew?

Peggy and I just took a time warp to 1882.  No, really.  We are on board the schooner Grace Bailey for a bit of a break from Kansas City’s brutal July weather.  All week, we’ll be sailing, sailing, over the bounding main (whatever that is), but not accessible to handle client needs.  If you email me this week, fuggedaboutit.  You’ll get my out-of-office response for the first time in well over two years.  Our floating home is propelled by wind, off the coast of Maine, lacking internet access and a cell signal and… electricity.

A few weeks ago, I was chatting with my favorite new client, letting her know that I’d be out of pocket all this week.  “When I say ‘out of pocket,’ I mean I will be on this thing…”

Grace Bailey, flagship of Maine Windjammer Cruises.

The thought occurred to me that, fairly regularly, I will field a frantic phone call or desperately drafted email from a lawyer or paralegal facing an imminent service deadline.  Two years ago, I posted “There is no such thing as a service of process emergency” to illustrate (1) the glacial pace at which service abroad can sometimes move, and (2) the widespread safe harbor afforded by court rules.

At the federal level, Rule 4(m), along with the case law construing it in transnational cases, invokes a reasonable diligence standard, and gives ample time to litigators who need to serve offshore defendants.  Just about all state rules (sorry, Wisconsin & Michigan) offer some sort of extension or similar reasonable diligence standard– if not automatically, then by fairly pro forma motion.

The point is…

Relax.

Really– relax.  Perhaps call Margaret and the good folks at Maine Windjammer Cruises and see what they can put together for you.

As long as you’re not at Day 80 with a 350-page patent infringement claim to translate and serve in China* or some such scenario, you’re going to be okay.  I promise.  I also promise I’ll get in touch with you as soon as I dig out of the thousand emails (not an exaggeration) I expect to have waiting for me when we reach safe harbor at the weekend.**

 


* In which case, I probably can’t help you anyway, unless you’ve been trying to secure a waiver from the defense.  In any event, a few days is unlikely to upset the apple cart.

** See what I did there?  Safe harbor!  Yeah, yeah– Peggy’s always saying “if you have to explain it, it’s not funny

Add me to the list of Bourdain fans who loved the guy, but who weren’t really in love with the guy.  By his own admission, he was kind of a jerk, and you’d understand if you’d read Kitchen Confidential.  But man, I loved his shows.  All of them.  A Cook’s TourNo ReservationsParts UnknownThe Essence of Em… no, wait.  He hated Emeril (but that’s another story).

I awoke this morning to the news of Tony’s apparent suicide during a shooting trip in Strasbourg, France (yes, fans call him Tony, because screw formality– just eat with your hands, you idiot) and had to wonder just what in the hell is going on in the world.  This on the heels of Kate Spade’s suicide in New York earlier in the week… when the famous and ostensibly happy are this miserable, we’ve got a whole lot of work to do to make the world a better place for each other.  Spade was a local icon in Kansas City, but not somebody I ever really knew anything about.  Bourdain, however, I knew.  And while there’s no way in hell I would ever want to work for the guy, I would love to have had the chance to sit down with him and share a simple bowl of Pho and an ice cold Vietnamese beer, or perhaps dig into a massive plate of Belgian mussles and an ice cold beer or… you get the idea.  His writing and narration style color my own writing style, and he was the type of world traveler I would have had spectacular craich with.  He loved food of all types and he loved other places of all types and cultures of all types and people of all types.

And the world’s a little less interesting without him in it.

Mercifully, he’s still on Netflix.


Update, within an hour of posting… it turns out I’m not the only one who feels the way I do.  Two other blogs that I follow posted far more eloquent eulogies:

Adare, County Limerick.  Oh, yeah– ask for Chloe at Pat Collins.  But be aware what ye say… all the pubs in Adare are related.  Her cousins, Julianne and Jason, work at Auntie Lena’s down the block.

We’ve been on “vacation” since last weekend.  I use quotation marks because, in all reality, I cannot disconnect completely, as it would be a disservice to my clients– all lawyers who need help navigating the cross-border issues that they never touch on in law school.  Everybody with an active matter knows I’m overseas, and they’re incredibly respectful of my time and circumstance, but I take great comfort from the fact that I can still work no matter where I am.  Peggy is not incredibly pleased when I pull out my phone to answer an email, but she understands the challenge.

Just today, a colleague shot me a question that I was able to answer– quickly and definitively, on my phone– from pub in County Limerick, Ireland.  Ponder the practice of law today versus the practice thirty years ago.  Answering that question would have taken either several days or a whole bunch of dollars– probably both, and definitely, not from Pat Collins’ Pub.

But in a matter of minutes, I was able to tell her exactly what she needed and, hopefully, save her client several hundred dollars.  It cost me all of seven cents, thanks to the miracle of the Internet.  I called her and said, “yeah, no worries– do XYZ and you’re fine.”  Not a chance I could have done that in the 1990s.

Our economy is no different– we are part of an interconnected world.  An inextricably linked world.  Personally, I like that.

The Ha’Penny Bridge, across the River Liffey, Central Dublin.

This morning, Peggy and I awoke in Dublin, the capital of the Republic of Ireland.  I’m incredibly fortunate to have traveled extensively since I was a young kid (Army brats never really shake the wanderlust), but until yesterday, the Emerald Isle was an unchecked box on my list.  I’ve been waiting decades for this, and it does not disappoint.  We’re here not only to see the sights, but also to build relationships with colleagues who serve Irish defendants for my clients.  It’s a great mix of business and leisure.

Throughout Dublin, there’s an undercurrent of revolutionary spirit, even a century after the Easter Rising and the subsequent advent of the Irish Free State.  Homages to Daniel O’Connell and Michael Collins and Wolfe Tone are everywhere, much as Washington and Jefferson and Franklin abound in the District of Columbia.  Atop the political history is a layer of culture and vibrancy– and even refinement– that make Dublin truly a world-class capital, even though it governs a country far smaller and less populated than my home state of Missouri.

On the downside, Dublin is expensive, it’s touristy, it’s aged, and it’s a bit grimy.  Just like every other big city.  Hard to criticize a major metro for any of those things when it has so much else to offer.

But the most striking thing I’ve noticed about Dublin is its distinct multicultural atmosphere.  This is, as far as I can tell, among the most European of European cities, perhaps second only to Brussels.  In a few hours’ time, I heard a dozen different languages and encountered people of every hue, faith, and economic class.  It’s not a stretch to predict that, following Brexit, the Celtic Tiger will awaken once again and make Dublin the English-speaking capital of a renewed Europe.

That’ll be exciting to watch.


Aside: I highly recommend the concept of VRBO– Vacation Rental By Owner.  It’s really a cross between AirBnB and a traditional hotel.  For about the same cost as a standard double room in a Hilton or Intercontinental, we have an entire apartment in Smithfield, just steps away from the Jameson distillery (they don’t make whiskey there anymore, but that’s beside the point!).  If you have occasion to visit Ireland’s capital, check out Dublin City Rentals.  Ask for Séamus.  He’s a good fellow.  (And his name is Séamus— there is no name more Irish.)