Palais Trautson, home of the Minsitry of Justice. Thomas Ledl via Wikimedia Commons.

I say all the time that we aren’t building rockets here.  But we are building a ship of sorts, and if the vessel is leaky, we won’t make it to port and the captain will be grumpy.  Woe be his kids who are running around town singing nonsense songs and wearing drapes.*

Do it the right way, and your journey is smooth.  Beginning September 12, 2020, serving process in Austria is subject to the strictures of the Hague Service Convention, regardless of which U.S. or Canadian venue is hearing the matter– and that looks to make things easier– and significantly cheaper– than it was before.  Some background is in order, if you’re so inclined, before we cut to the chase.

  • The roadmap to the overall process—the recipe to our Secret Sauce.
  • The structure of the Convention itself is discussed in this four-part series.
  • And an absolutely critical note: the Hague Service Convention does not help with subpoenas.  Repeat after me—you can’t just SERVE a subpoena abroad, at least, not if you want it to have much effect.  Instead, you have to file a Letter Rogatory, roughly similar to a Hague Evidence Request (although Austria is not a party to the Hague Evidence Convention).  The same Cardinal Rules apply—this is dramatically different from serving a summons or notice.

Now, here’s how service is effected in Austria, noting that Austria has not fully expressed its wishes regarding certain issues arising under the treaty:

Article 5 Service

  • Translate the documents. Under the pre-Hague regime, Austria not only required a translation into German– they insisted that their own certified translators do the work.  Although the defendant may speak flawless English, omitting translated documents will prompt the Central Authority to reject your request.  (And to be sure, they may still require the work to be done in Austria, even though this arguably conflicts with the treaty.  Absent more guidance, it’s impossible to say.)
  • Fill out a USM-94. Be very careful about ensuring that it is complete and concise, and make sure that it is signed by a court official or an attorney.  If it is not, make sure that the person signing is commissioned by the court.
  • Send to the appropriate Central Authority.  In the case of Austria, it’s the Bundesministerium für Justiz (Ministry of Justice).
  • Sit tight. It may take a while—likely several months from submission to return of proof.

Article 10 alternative methods

  • Alternatives are not available, because Austria objects to Article 10 in its entirety.

Seriously—that’s all there is to it.  The method is straightforward and simple.  The declarations and Central Authority information of all the other countries in the treaty—can be found here.  Once more substantial guidance is issued, this space will be updated.

Bonus practice tip… if you’re defense counsel, always question the validity of service effected on your overseas client.  The plaintiff may not have done it correctly.


* For the uninitiated, Austria is home to the legendary Von Trapp family, the subject of one of my favorite musicals.  I don’t sense that the real Captain Von Trapp was as grouchy as Christoper Plummer made him out to be.  Until a couple of years ago, I had two mental images of Austria.  One was bucolic Salzburg “in the last golden days of the thirties”—that of the Von Trapps and The Sound of Music.

The real Georg von Trapp as a younger man. Public domain, Wiki.

The second was the snowy Vienna of Amadeus—that of footlit operas, a clownish genius in Tom Hulce’s portrayal of Mozart, and an Emperor who looked a little too much like the vice-principal from Ferris Bueller’s Day Off.

Tell me I'm wrong.
Tell me I’m wrong.

In 2015, Woman in Gold changed that… the list now includes the works of Gustav Klimt and an epic legal battle arising from the Nazis’ theft of priceless art works.  I watched the film on a transatlantic flight and was thrilled, but bemused, because the young lawyer handling the case (Ryan Reynolds) walked into Austria’s consulate in Los Angeles with his client (Helen Mirren) and served process by sliding a summons through a banker’s window to a receptionist.

Alarm bells started going off in my head, because for one thing, you shouldn’t hire Deadpool to represent you.  Not even Wade Wilson can just walk into a consulate and drop a summons on the receptionist’s desk.  The Foreign Sovereign Immunities Act says otherwise.  (To be sure, I tried to contact Randy Schoenberg, the lawyer played by Reynolds, to see how he actually did it.  No answer.  Either he did it some other way and Hollywood embellished, or defense counsel didn’t know how easy it was to get that thing kicked.)

Woman in Gold, Gutav Klimt, 1907
Woman in Gold, Gustav Klimt, 1907

In any event, a fantastic movie with a compelling story, and a stunning work of art at the center of it all.

Way back in March, 2017, I posted a blurb about the limitations on serving offshore parent companies via their U.S. subsidiaries.  In short, I argue, you can’t simply serve a U.S. subsidiary and call it effective on the foreign parent.  You have to have a compelling reason to pierce the corporate veil.

This is basic 1L Civ Pro stuff.  It’s just too bad they never even mentioned service of process in either semester of Civ Pro in law school– jurisdiction and joinder were far too complex to allow for coverage of the basics, I guess.*  Fortunately, it was touched on a bit in BusOrg class the following year, but even that 2L discussion wasn’t sufficient to fully flesh out the idea for practitioners.  It’s really only as a 4L (that’s a practicing attorney, y’all) that anybody truly digs into this stuff.

So come now the good folks at Winston & Strawn who posted in July, “Court Finds Service of Process on Foreign Corporation’s U.S. Subsidiary Would Be Improper” on their firm’s blog.  Seems the plaintiff in a patent infringement suit (UNM Rainforest Innovations v. D-Link Corporation, W.D. Tex.) wanted to serve a Taiwanese defendant company by delivering the summons and complaint to the registered agent for the defendant’s U.S. subsidiary.  The court took issue with such an undertaking, and denied the motion (in part).  Pretty logical, if you ask me, even though I don’t wear a robe and bang a little wooden hammer on my desk for a living.  The court’s July 13 order:

The Court recognizes the additional expense and time required to serve D-Link under Taiwanese law and sees these as a valid justification to grant an alternative method of service. (…)
However, at this time, the Court finds that Plaintiff’s proposed means of alternative service fails to satisfy the due process requirements afforded by the United States Constitution. (…)
The Fifth Circuit held in Lisson that regarding foreign defendants, even if its foreign parent corporation does not explicitly authorize a domestic subsidiary as an agent for service, the subsidiary might still be capable of receiving such service. When applying a state long-arm statute, “as long as a foreign corporation exercises such control over the domestic subsidiary that the two entities are essentially one, process can be served on a foreign corporation by serving its domestic subsidiary — without sending documents abroad.”  Thus, a foreign corporation receives proper service through its domestic subsidiary where the evidence shows that one is the agent or alter ego of the other.

(Citations omitted.**)

Ultimately, the W.D. Tex. court ordered service to be effected pursuant to 4(f)(2)(C)(ii), which I contend has always been a bad idea in most cases, and is an even worse idea in the time of Covid-19.  To be sure, leave of court isn’t necessary– serving by mail under 4(f)(2)(C)(ii) is a matter of right as long as it isn’t prohibited by treaty or foreign law– but despite its legal validity, it’s not very likely to work from a fact perspective.  Truly, the better way would be electronic service under 4(f)(3)— which does require leave of court– or, if overseas enforcement might ultimately be required, a Letter Rogatory under 4(f)(2)(B), which would carry the judge’s signature.**

 


* I ranted about this once in a CLE lecture I gave, with both of my Civ Pro professors in the room.  It really is a tongue-in-cheek criticism, given the hundreds of topics that simply cannot be covered in two semesters.

** Note, however, Lisson v. ING GROEP N.V., 262 Fed. App’x. 567, 570 (5th Cir. 2007), which lays out a nice analysis of when/how alter ego service is valid.

Native languages of extreme northern North America and Siberia have several different words for “snow”.  I went to Alaska on a cruise once, but I’m definitely not qualified to translate.

Hague Service Convention requests constitute 99% of my practice– that’s a literal statistic.*  Easily half of them are sent to countries that haven’t caved in to the pressure (good for them) and made English an official language.  As such, the lion’s share must be translated into German or Italian or French or Korean… you get the idea.  In most instances, my clients just have me take care of the whole shooting match, from soup to nuts.  Occasionally, though, a firm or solo lawyer has a relationship with somebody who purports to translate legal documents as a matter of course, so they prefer to handle the linguistic work themselves.  To be sure, we’re not a translation provider– we’re a law firm– so if you want to do your own thing, I don’t object.

But I do disclaim the heck out of it.

Among the most frequent reasons Hague requests are rejected: bad translation.  If it’s my guys who goof it up, I have somebody to yell at (pretty rare, as I work with some of the best in the business), and they can get things fixed in pretty short order.  If it’s my client’s translators who goof, well, I can’t help them.  They have to handle the heavy lifting, and then I have to hit them with an additional fee for resubmission of a request once the translation problem is remedied.

While I disclaim the burden of ensuring solid translation work for clients who insist on getting their own, I still offer a bit of guidance via this blog…

A few off-the cuff-suggestions in conversations over the phone:

  • Don’t just ask Emily the Intern to handle the work for you because she spent last semester in Costa Rica.  Unless she’s also a translation major, she’s not qualified to do it, and you’re just asking for disaster.**
  • For crying out loud, don’t use Google Translate.  Or any machine translation, for that matter.
  • And the whole point of this little rant:

YES, FOREIGN AUTHORITIES WILL READ YOUR TRANSLATION TO MAKE SURE IT’S ACCURATE.

If you’ve cheaped out, it’ll get kicked back to me (or you), sometimes with a quickness, sometimes after nine months’ waiting.  Either way, you’re back to square one.

 


* In the literal sense of the word literal.  The other 1% is Guardian-ad-Litem work on behalf of CASA– which is incredibly rewarding– I highly recommend it.  Just don’t ever get a parking ticket in KCMO Municipal and tap me on the shoulder to handle it.  I can’t help you, apparently.  [For the record, my client (Peggy, my wife) was guilty, and the prosecutor was happy to knock the thing down to $25 so she wouldn’t have to jack with it.]

** My former intern, actually named Emily, *is* a translation major, so she’s qualified.  I still never had her translate for me, because she was more valuable to me on other projects.  So is your staff, whether intern, L.A., para, or associate.  Their time is worth far more than you think.

Yeah, Toy Story came out 25 years ago.  But you can catch it today on Disney Plus.  Sing along with Randy Newman.  Yes, I know you’re 54 years old and your kids are grown.  Watch it anyway.

One of the biggest fears my clients face is dismissal under a forum court’s deadline for service.  In federal court, that means 90 days, and in most states, it means anywhere from 60 to 120.  They’re often frantic about the possibility that some grumpy judge is going to dismiss them.  I strive mightily to put their minds at ease.

Fear not, brave Counselor.  You’ve got a friend in Rule 4(m).

The gist of Rule 4(m)?

“Get the summons served in 90 days or you’re out of here.  But, oh yeah… the 90-day deadline only applies if the defendant is in the United States.

Outside the U.S., plaintiffs are subject to a reasonable diligence standard, which usually just means that they have to start the ball rolling within 90 days.  As long as they’re not dilatory (I had to look it up… they’re not dragging their feet), even the grumpiest of judges isn’t going to dismiss the case, especially if the defendant is in one of the single-method/longer-wait countries like China or Mexico or India.  This is especially true amid the Covid-19 pandemic– judges understand (as of this writing, the U.S. lags behind just about every other country in dealing with it).

Unquestionably, you have to serve according to the Hague Service Convention, if it applies.  Rumors abound that Central Authorities are all shut down (no, they’re not) and that everything everywhere has just stopped (no, it has not).  Sure, time expectations vary wildly from just a few months ago, pre-pandemic [see Yes, They’re Still Open, my post two weeks ago, for more on that], but…  even if Central Authorities do shut down again, and even if they do take seemingly forever, there’s still no reason to not get things lined up to go.  Set requests up so they get into the pipeline as soon as possible.  A few reasons why:

Grumpy judge. ^^^
  • They’re Called Deadlines For A Reason…. where they actually apply.  Adhere to them as best as you can.
  • First in, first out… that’s how most Authorities roll.  So if you wait until things normalize, you’re at the back of the line, waiting to get on the Buzz &Woody ride at Disney World, distraught that your ice cream is melting.
  • Having only one option in Germany doesn’t mean you have only one option in the Netherlands or England.  They can go pretty quickly with the magic of Article 10(b).
  • If translation is required, it’s going to take some time, too.
  • Just about every state (sorry, Wisconsin & Michigan) has a safety valve built into procedural rules, but reasonable diligence is still key.*
  • Even after service is effected overseas, proof takes longer than you think, so it’s best to at least initiate things as early as is practical.**

You’ll be glad you got everything moving.  Just don’t fret that overseas authorities take so long to finish the job.

 


Yes, I know it’s summer and we’re in the middle of a global health crisis. Watch this movie anyway. It’ll brighten your mood.

* Of particular interest: New York, whose view on the matter is beautifully illustrated in Bumpus v. NYC Transit Authority.  CPLR 306-b requires service in 120 days, but Bumpus specifically acknowledges circumstances beyond the plaintiff’s control, including the delay caused by Hague strictures.  [Bumpus also specifically reminds me of A Christmas Story, so it’s incredibly easy to remember the citation.]

** Be careful about removal, though.  If you file in state court and anticipate that a U.S. defendant will drag you to the federal court up the street, you might want to wait.  That’s not foot-dragging– it’s making sure things are done properly.

Phillip Burton Federal Building, San Francisco. Sam Wheeler via Wikimedia Commons.

Ah… faith in humanity restored.  Just a bit.

In a rant yesterday (NO, 4(f)(3) is NOT co-equal to Hague channels!), I took issue with the impossibly bad logic in another order approving electronic service on a Chinese defendant under Rule 4(f)(3).  Simply put, S.D. Cal. got it wrong, the latest in a string of cases steeped in impossibly bad logic.  But at the other end of the Golden State, Magistrate Judge Alex Tse, who has been on the bench a mere six months, got it right.

In Facebook, Inc. et al v. 9 Xiu Network (Shenzhen) Technology Co., Ltd. et al., No. 4:19-cv-01167 (N.D. Cal.), Judge Tse recommended that the District deny the plaintiff’s motion for leave to serve various Chinese defendants electronically.  His holding (if it can be called that before adoption by the District Judge?) relied on a far more accurate interpretation of Rio Properties v. Rio International Interlink than the Victaulic opinion, which drew so much of my ire yesterday.

The plaintiff in Rio was based in the United States and attempted to serve a defendant in Costa Rica.  Costa Rica isn’t a signatory to the Hague Service Convention[*], so service under 4(f)(1) wasn’t applicable. Service under 4(f)(2), in contrast, was theoretically possible, but the means of service identified in 4(f)(2) weren’t practical under the circumstances; so rather than first attempt service under 4(f)(2), the plaintiff asked the district court to authorize service by e-mail under 4(f)(3), which the district court agreed to do.

Bingo.  Going on…

It is easy to understand why courts, after reading Rio, have concluded that the methods of service identified in the Hague Service Convention are not exclusive.  Service under the Convention proceeds through 4(f)(1); and Rio held that Rule 4(f) doesn’t prohibit a plaintiff from bypassing 4(f)(1) and first requesting an alternative means of service, such as service by e-mail, under 4(f)(3). The implication seems to be that the methods of service identified in the Convention are optional, and that even if the Convention applies, service by e-mail may be utilized if approved by the court.

This reading of Rio, although understandable, is too expansive.  Rio interpreted Rule 4(f), not the Hague Service Convention; and when the Convention applies, it must be considered. The Convention is a ratified, self-executing treaty, and as such is “the supreme law of the land.” (citations omitted.)

I disagree on one point there:  Judge Tse is entirely too kind.  It’s not easy to understand why courts have concluded that Hague methods aren’t exclusive– it’s utterly baffling in light of Schlunk, and I’ve been beating my head against a wall over it for years.  To be sure, I don’t think Rio analysis is even necessary in light of Justice O’Connor’s logic– the stronger basis for denial of 4(f)(3) alternatives in China– but it does highlight the problem with Gurung and its progeny.

Still, this one reaches the right result on the specific request.  If the Central Authority says an address is wrong, then that (as Judge Tse indicates) takes the Convention out of the equation, but that doesn’t seem to be the plaintiffs’ basis for the motion.  Regarding the as-yet-unaddressed defendants, the next step is to invoke Article 15 and proceed toward default.**  I sense that China is unlikely to ever effect service in this case, so a default seems appropriate under the treaty’s terms.  In that instance, the defendant’s due process rights must still be vindicated, and that’s where Rio and 4(f)(3) alternatives can enter the fray– but only to provide Mullane notice, rather than formal service.


* Costa Rica actually is a Hague party now, but wasn’t in 2002, when Rio was handed down.

** True, this triggers overseas enforcement concerns, but China isn’t going to enforce a U.S. judgment anyway.


Hat tip to Katerina Ossenova, my colleague at the Department of Justice, for pointing out this case.

PAY ATTENTION TO WHAT THIS WOMAN SAYS.

Yet another one popped up on the old radar (Google news alerts) yesterday… a National Law Review article highlighted Victaulic Company v. Allied Rubber & Gasket Co., Inc. in S.D. Cal., but the author’s conclusion was far too optimistic for plaintiffs seeking a way around the Hague Service Convention.  The court there held that service by electronic means on a Chinese defendant was perfectly acceptable under Rule 4(f)(3) because electronic service isn’t prohibited by international agreement.  My (internal scream) response to that:  WRONG.

Wrong wrong wrong wrong wrong.

(You should sense a rant coming.)

In the case of China (and Mexico and Germany and Switzerland and… I could go on), electronic service is most certainly prohibited by international agreement.  Says who?  Says Sandra Day O’Connor, who (unless they’ve been living under a rock for four decades) lawyers have heard of.

She doesn’t say it specifically, but the conclusion is crystal clear– I am continually astounded by courts’ complete disregard for the “secondary” holding in Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988).   Reading these lower court opinions, it’s as if not a single lawyer in the room has taken a truly thorough read of the Schlunk opinion in determining what is and is not valid service abroad.

Schlunk‘s primary holding:  adherence to the Hague Service Convention is mandatory where it applies.  486 U.S. at 699.

Secondarily: the Convention’s list of service methods is exclusiveId. at 706– and again at 710.

Now, last I checked– and correct me if I’m wrong here— U.S. Supreme Court precedent, especially entirely settled precedent, ranks higher on the hierarchy of authority than the Federal Rules of Civil Procedure.  I’m sure I read that somewhere in law school, but that was a while ago.

District courts routinely contend that 4(f)(3) is on equal footing with 4(f)(1), and in the case of the Inter-American Convention on Letters Rogatory (IAC), that’s true.  The IAC isn’t a mandatory/exclusive treaty.  THE HAGUE SERVICE CONVENTION IS.

The source of all this turmoil?  Likely Gurung v. Malhotra, which Ted Folkman ably covers in detail over at Letters Blogatory, and which I won’t rant on any further in this space.  Suffice to say that Gurung, and apparently now Victaulic, fail to consider the plain meaning of Justice O’Connor’s words:

(…) the Convention prescribes the exclusive means for service of process emanating from one contracting nation and culminating in another.

Judge Benitez’ Order in Victaulic relies on the seminal case on electronic service, Rio Props., Inc. v. Rio Intern. Interlink, 284 F.3d 1007 (9th Cir. 2002), in placing 4(f)(1) and 4(f)(3) on an equal footing.  But missing in the analysis is that Rio Properties didn’t implicate the Hague Service Convention.  The defendant there was in Costa Rica… a non-Hague country.*  From Rio at 1015…

(…) no language in Rules 4(f)(1) or 4(f)(2) indicates their primacy, and certainly Rule 4(f)(3) includes no qualifiers or limitations which indicate its availability only after attempting service of process by other means.

That’s an accurate statement.  Nothing in 4(f) indicates a preference for any of its three subsections.  BUT SCHLUNK DOES.  AND SO DOES THE SUPREMACY CLAUSE.  The mind reels.

To be sure, this doesn’t mean it’s game over for the plaintiff.  Article 15 is in force for China, so a default judgment is acceptable under the Convention.  Of course, that doesn’t clear the Due Process hurdle, but 4(f)(3) methods can be used to vindicate the defendant’s rights under MullaneNot to serve in a strict sense– but to provide reasonable notice.  Still, 4(f)(3) is not a starting point.


* Accurate as of 2002.  The Convention entered into force for Costa Rica some fourteen years later.  The 9th Circuit pointed out the non-applicability of Hague strictures in footnote 4!


Another issue worthy of a rant… the Victaulic Order also grants the plaintiff a sixth extension of time to serve.  The first extension was wholly unnecessary, because Rule 4(m) specifically exempts service on overseas defendants from its own 90-day deadline.  I’ll leave it at that.

And don’t get me started on Sinotype

A quiet passageway in Spoleto, Umbria.  I snapped this while gallivanting across Italy with some colleagues on a CLE junket.  The best way to earn your hours, folks.

One immutable truth looms over everything I do: if you can’t tell me where your defendant is, I can’t get him served for you.*

I couldn’t be more serious– “where?” is the most important question I ever ask a client.  There are precisely four variations on the answers.

  • We know where he is.  (And that knowledge is ultimately proven correct.)
  • We know where he is.  (But the information is ultimately proven wrong— or changes by the time a foreign authority gets around to serving.)
  • We think he’s in (X country), but aren’t sure.
  • We have no idea.  We just know he’s out of the country.

Each of those answers presents, at once, different challenges and opportunities.  Let’s take a look at each in turn; none of them have to mean the end of the world.


(1) We know where he is. (ultimately proven correct)

A solid address, authenticated by a corporate registry** or some other source, and hopefully validated by Google Maps, is the best way to ensure that service is effected.  It may not be incredibly quick, depending on the country, but a confirmed street address is absolutely critical to valid service, whether under the Hague Service Convention or other non-treaty methods.  This typifies the vast majority of the cases I handle, usually because my clients (all lawyers) have done their homework and pinpointed the defendant’s location.

Assuming the paperwork is in order and the serving official (or “other competent person”) is doing his job properly, it’s a slam dunk just about every time.

This is the best case scenario, but the challenge often lies in cost and time spent waiting for proof to come back.


(2) We know where he is.  (ultimately proven wrong/changes)

This is actually the worst case scenario, because if the information turns out to be wrong, that cost and time are somewhat spent for naught.  A litigant or counsel spends thousands of dollars and many months waiting, just to learn from the foreign Central Authority that “the defendant has moved and no further information is available.” **  If credible sources tell you at the beginning that the defendant is domiciled at a particular address, there’s really little choice but to try getting to him the regular way.  It’s incredibly frustrating.

But all is not necessarily lost.  This situation actually opens up the same opportunity as #3 and #4… read on.


(3) We think he’s in (X country), but aren’t sure.

Here, we’ll have to get creative.  The most creativity I’ve ever seen came out of the Southern District of New York two years ago, when a plaintiff was granted leave to serve a foreign defendant via Twitter.  No joke.

As long as the Hague Service Convention doesn’t apply, there is no prohibition to electronic service under FRCP 4(f)(3).  By its own terms, right up front in Article 1, the Convention is inapplicable “where the address of the person to be served with the document is not known.”

Focus on the word “known” for a moment.

Sure, in some places such intel might be enough to serve him personally via Article 10(b) within a matter of hours [I’m looking at you, Canada].  But for a standard Article 5 Request, significantly more certainty is critical– especially if the defendant is itinerant.  Trying to go through a foreign government agency without an actual address… fuggedaboutit.  It ain’t gonna happen.


(4) We have no idea. We just know he’s out of the country.

Good.  Hopefully the fellow is gallivanting across Europe in a used VW microbus, regularly posting selfies from famous landmarks on Instabook or Twitlink**** or some other social media platform.  As with the S.D.N.Y. case, just get leave of court to serve him via Instabook or TwitlinkThis is the “how to not have to hire Aaron” method.

Otherwise…

Fuggedaboutit is spelled differently in Brooklyn’s street sign shop.

* I use “him” instead of “him/her/it” for simplicity’s sake.  Using “him/her/it” frequently would annoy you, I promise.

** I heartily recommend registry searches where an entity defendant does not publicize its domicile address, especially in the Far East.  Sadly, even though we may have a registered address, certain countries’ procedures take so long that a defendant really does move between submission and the attempt at service.

*** Note my glowing review of that place.

**** I made those names up.

Pernillan — via Wikimedia Commons.

And most of them have been all along.

Aside from a few notable blips (such as Italy and Spain, which bore the earliest surge of Covid-19 cases in the west, and India, which has been pummeled), Hague Central Authorities around the world kept doing the job even through lockdowns and quarantines.  Commentary that I still get from clients and prospective clients is simply baffling.

“I had a process server tell me that Central Authorities are closed and that nobody’s doing anything.”

(So Aaron shakes his head.  Again.)

No.  Just… no.

For starters, go beyond your process server and talk to actual lawyers who deal with cross-border procedure daily. 

I’m not the only one who will tell you that, while things may have slowed down, Hague Service Convention requests only ground to a halt in a few select places– including the United States for a while.*  By and large, the wheels of Hague justice continued to turn amid the quarantine, and continue to turn today.

No, really– the rest of the world has actually taken monumental steps to curtail the spread of the novel coronavirus, and just about every country on the planet is doing a better job of it than we are, by any credible metric.**  In a Washington Post op-ed last week, American academic Timothy Searchinger highlighted the dramatic differences between America’s response and the efforts taken by the rest of the world, notably across the Atlantic.

The French lockdown was severe. People were only allowed out, after filling out a form, to take care of elderly relatives or to go grocery shopping. To buffer the economic impact, the government directly paid a portion of salaries for those who could not work. And, voila, it worked. (…)

France and the rest of Europe are just showing what grown-up governments in well-off societies do, which makes our U.S. disaster all the more painful to watch (and for me to rejoin next week, alas).

Oddly enough, I used to predict that France could take 4-5 months from submission of a Hague Request to send a proof back to me.  A dispatch I sent to Paris in early June was back in just five weeks.  I was astounded.

So yes, they’re still open– even Italy, Spain, and India– albeit with a massive backlog, I’m sure.

Go forth, counselor.  (Or tap me on the shoulder and let’s get your defendants served.)

 


* The U.S. Central Authority is back up and running for Hague Requests nationwide (as of last week).

** By credible metric, I mean number of cases, percentage of positive tests, and the death rate.  Sure, there are outliers, but don’t pop any corks because Russia and Brazil are doing a worse job than we are.

A Dissatisfied Litigant, 1845, by Honoré Daumier (1808-1879).

Most people understand that attorneys’ ethical rules prohibit us from advising another lawyer’s client because it can so easily interfere with the attorney-client relationship.  More difficult to explain, though, is why I cannot help individuals who pursue legal action in courts of law on their own.  Hopefully, this will clear things up a bit.

These folks pursuing redress on their own are called pro se (prounounced “pro-SAY”) litigants, and their lack of counsel has no bearing on the validity or magnitude of their claim.  Indeed, there are thousands of individuals who simply cannot afford a lawyer or do not qualify for assistance from Legal Aid organizations or other services.  Absent a lawyer, no attorney-client relationship exists, so I can’t interfere with it.

Still, there are two very specific reasons why I still can’t talk to you, except to determine what you need and help you find someone:

  1. Unless you’re in Missouri, I’m not licensed in your state.  If you’re outside the land of Harry Truman and Mark Twain, and I comment in depth on a question surrounding your unique circumstances, then somebody might think I just became your lawyer.  And I’m not willing to risk a charge of Unauthorized Practice of Law… and the resulting loss of my Missouri license.
  2. Even if you are in Missouri, odds are that I don’t have sufficient expertise to properly advise you on the breadth of your situation.  I’m pretty much a one-trick pony– and while it’s a great trick, you need more than the trick I offer.  If I propose a specific plan or comment on a question surrounding your unique circumstances, then somebody might think I just became your lawyer.  And I’m not willing to take on that responsibility– just like your pediatrician friend from church won’t perform your coronary bypass surgery.

Now, lest someone think we lawyers are all like Henry Hill* and friends, it’s not about money.  I give knowledge to litigants– free of charge– all the time… I just do it through their lawyers.  That’s the way it has to be.

An email I received a few weeks ago illustrates the dilemma (and this precise situation is common).  The fellow asked a straightforward question about a procedural rule.  Right up my alley, for sure.  I was confident that I had enough information to reach a conclusion, but my Spidey-Sense told me that the fellow asking the question was a non-lawyer.  Most lawyers would know the answer, though many still ask, just to confirm their thinking.**

A quick Google search confirmed that my Spidey-Sense had not let me down.  The guy seemed pretty sophisticated, but he was definitely a “civilian”.  So…

I’d be happy to help– have your attorney give me a shout and we can hammer out a strategy pretty quickly.

“Nope.  I’m pro se.  I just need to know if I can do (XYZ).”***

Sorry, friend.  I can’t advise you directly.  You’ve got to have an attorney for me to be involved in guiding you.

“I didn’t ask for advice,” he said.  “I just want to know about the fact of (XYZ).  You ambulance chasers are all alike.”

See above.

 


* To paraphrase, “Business bad? Tough, pay me. Oh, you had a fire? Tough, pay me. Place got hit by lightning, huh? Tough, pay me.”

** Imposter syndrome kicks me in the head regularly.  As such, I contend that there’s no such thing as a stupid question.  Better to ask and be right, than not ask and be wrong.

*** Specifically calls for a conclusion of law.

(Updated September 12, 2020:  see here for the revised way to serve in Austria.)

News dropped last week that Austria has, at long last, ratified the Hague Service Convention, which will enter into force on September 12.  Its declarations are yet to be posted to the very excellent HCCH website (they are on the Dutch government’s treaty database…), but one interesting declaration has been highlighted by the good folks at conflictoflaws.net — Austria will not allow service of documents on the state or political subdivisions via the Convention.  Instead, Austria’s declaration directs plaintiffs to use diplomatic channels instead of Convention methods (how this plays out relative to FSIA service rules remains to be seen… I doubt it will be very controversial, but easy to fumble).

So, how do you effect service of process in Austria?  Well, for the moment, the same way it’s been done all along: a Letter Rogatory, or in the case of government defendants, delivery via diplomatic channels with a translation and Notice of Suit.  In about eight weeks, the Convention kicks in and, judging by the declarations, things will work in pretty much an identical fashion as in Germany… but without decentralized authorities.

As such, until early September, I recommend that all service attempts on Austrian defendants be held, in order to avoid the astronomical costs of Letters Rogatory.  Trust me– you’ve got time, if we plan things the right way– and it will ultimately be faster anyway.