Offloading medical supplies in the waning days of the 1989 revolution. U.S. Air Force photo.

For most of my childhood, Romania was one of those countries that adventurous travelers wanted to see… we just couldn’t go there because it was behind the Iron Curtain, a Soviet puppet state ruled by a ruthless dictator.  That changed dramatically in December, 1989,* when the world got to watch that dictator, Nicolae Ceaușescu, removed from power and his Communist regime toppled.  Three decades on, Romania is not only democratic, but a member of the European Union and NATO, literally the front line between the Ukrainian War and the west.  I could go on, but this is about civil procedure, so…

Service of process in Romania is subject to the strictures of the Hague Service Convention.  This holds true regardless of which U.S. or Canadian venue is hearing the matter.  You’ve got three ways to go about serving a defendant in Romania:

  1. Tap us on the shoulder for bespoke attention—and probably some amusing commentary to boot (see the upper right if you’re on a desktop, or way down below if you’re on a phone/tablet),
  2. Cruise over to the Hague Envoy platform at USM94.com to automate the completion of your forms in perhaps twenty minutes or so, or
  3. If you’re feeling froggy & would like to handle the whole thing yourself, keep reading.  This lays out the framework you’ll need.

Some background is in order, if you’re so inclined, before we cut to the chase.

Here’s how it’s done in Romania:

Article 5 Service

  • Translate the documents. Romania’s declaration to Article 5(3) does not specifically require documents to be translated, but it’s a bad idea to omit a Romanian version unless you’re highly confident in foreign officials’ willingness to serve documents they can’t read, and a defendant’s willingness to accept documents that hale them into a foreign court.  Perhaps this is not a fight worth having, if you ask me… so unless the stack of documents is truly voluminous, just translate it.
  • 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 this case Ministry of Justice in Bucharest.
  • Sit tight. It may take a while—likely several months from submission to return of proof.

Article 10 alternative methods

  • Mail service is available, depending on your venue, but it’s a bad idea anyway.
  • Service via “other competent persons” is ostensibly available to U.S. litigants under Article 10(b)— but as Romania has not designated who is and who is not competent to serve, this is a bit of a distractor.
  • All in all, I suggest using Article 5 to eliminate all doubt as to validity.

Seriously—that’s all there is to it.  The method is straightforward and simple.  Romania’s declarations and Central Authority information—as well as those of all the other countries in the treaty—can be found here.

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.  That actually happened once, with a defendant in Norway, and her lawyers were smart enough to fight the issue.  The Washington Court of Appeals erroneously thought going outside the Central Authority was okay, but their Supreme Court saw the matter differently.


* The week of my 18th birthday, as luck would have it.  I was a college freshman– and a political science major– so I spent much of college utterly enthralled with the dramatic changes in the old Soviet sphere of influence, culminating with the fall of the USSR in 1991.  It was thrilling and fascinating to watch.

“Empty” Romanian flags with the communist insignia cut out, from an exhibit at the Military Museum, Bucharest.

 

A Romanian sub-officer gives the victory sign on New Year’s Eve 1989. He has removed the insignia of communist Romania from his ushanka.

(TL;DR… publication is a horrible, terrible, woefully insufficient means of service, and the Supreme Court said so way back in 1950.  It should only be used as a last resort, and even then, only when there’s a reasonable chance that it’ll actually notify anybody that a case is afoot.)

A story flooded my news feed last Friday… US Judge Orders a Mexican Drug Cartel to Pay $1.5 Billion to Victims’ Families.  A default for a billion and a half bucks ($4.6B after it’s trebled) is almost real money in this day & age, so I got curious about the procedural posture of the case.  Because I live in civ-pro, several questions popped into my head, first among them being “who got sued?” (with a bit of incredulity).

Only less prominent: “how did they serve the thing?”

Naturally, my curiosity made me dig into the docket a little, and the deeper I dug, the more frustrated I became.

For starters, suing a Mexican drug cartel is a bit like suing “the Corleone crime family.”  Sure, it’s an organized group and everybody knows it exists– especially the Tattaglias and the Barzinis and the ill-fated Moe Green.  In its own cinematic universe, it’s common knowledge that la famiglia really is a thing (or as they say within the thing, “our thing“).

But is it a thing in a legal sense?  No.

You can’t just name a crime family in a suit and expect to collect anything; the defendant has to be an identifiable, legal person.  A court can’t exercise jurisdiction over something that doesn’t legally exist, so I’m surprised this thing went through at all.  I’m curious to see what assets the victorious plaintiffs can seize to satisfy the D.N.D. (North Dakota?!) judgment.  Those plaintiffs and their loved ones unquestionably suffered– and greatly– at the hands of the cartel, and a big judgment is warranted against the perpetrators.  But how can a non-entity cartel actually hold seizable assets?

Beyond that, it was the service question that really tickled my brain.  In their 4(f)(3) motion for alternative service, plaintiffs’ counsel rightly noted that the Hague Service Convention wasn’t applicable because there was no address for the cartel (the Corleone Syndicate didn’t have one either, unless you count the Genco Pura warehouse at 514 Mott Street… and that’s next to impossible to prove*).  This is a great bit of logic, but the motion didn’t truly use it to highlight the critical nature of the Convention’s inapplicability.

But they went on to cite Rio Properties, Inc. v. Rio Int’l Interlink, 284 F. 3d 1007 (9th Cir., 2002) for the proposition that none of the methods outlined in Rule 4(f) supersede each other.  That’s not entirely accurate.  The Hague Service Convention supersedes everything in its path, given the crystal clear holding of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).  In Rio Properties, the court didn’t address Hague applicability, because it didn’t need to.  Costa Rica hadn’t signed on to the treaty so there was no Hague issue as to the Costa Rican defendant.  Fortunately, in the cartel case last week, the Convention likewise didn’t apply (again, no address, no applicability) so no controversy arises.

Where the controversy arises is in the due process question and the entire idea of service by publication.  It’s always been a gross legal fiction, and from time to time a necessary one.  But even when it was more widely recognized, it was suspect– and Justice Jackson said so.

See, I remember back in the olden days (okay, it was the 1980s, but stick with me here), when my grandmother used to get on the phone to gossip with her sisters about who in the neighborhood was getting sued.  Our local paper carried a Legal Notices section and, without fail, one of the sisters knew somebody who’d been in a car accident or was getting a divorce and… snicker snicker, wow, didn’t that jerk get what was coming to him.

Fast forward to 2022 and nobody reads the Legal Notices section in the paper anymore.  Really.  So what in the hell makes us think that publication is a means of service that is reasonably calculated to give anybody notice of a suit.**

Rewind, now, to 1950, when some fellows in Washington, DC took up that very question– and determined the Mullane Standard for service of process.  Those fellows (well, a majority of them, anyway) held very clearly that due process rights were only fulfilled if a plaintiff undertook to serve by “a means reasonably calculated, under the circumstances…”  (you get the picture).  Take a read of Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306 (1950) to see what I mean.

Justice Robert H. Jackson– he of the U.S. Supreme Court and the prosecution team at Nuremberg.

Mullane is cited over and over and over by plaintiffs seeking to serve by publication, but apparently, nobody ever actually reads the whole case.  Justice Jackson was highly critical of service by publication even seven decades ago, yet courts continue to give knee-jerk credence to publication, without digging deeper into its reasonability.

I yield the soap box here.


*  There is no 514 Mott Street.  Mott Street only goes up to the 300 block, so…

** It’s even more farcical to suggest that a “global legal notices” website is actually read by anyone it’s ostensibly supposed to target.  A plaintiff’s lawyer would be just as successful posting on his own blog, “hey, Joe Defendant, you’ve been sued… click here to see your summons.”


Author’s note:  It’s been years since I’ve been able to work the greatest movie of all time into this blog, so the timing of this story is oddly fortuitous.

Two hat tips/homages– first, to the great James Caan, who died last Thursday at the age of 82.  As I read the alert on my phone, the only line I could think of was “they shot Sonny on the causeway.  He’s dead.”  It wasn’t even his line.  But this one was.  Another legendary gangland actor passed the following day: Tony Sirico, who had a small supporting role in Goodfellas, was legendary as Paulie Walnuts, one of the boss’ right-hand men in The Sopranos.

As a general rule, I don’t talk to litigants.  Even if their lawyer consents or hops on the call with us.  Sure, the litigant is the guy paying my fee, but his lawyer is my client, and I’m not about to get in the middle of their relationship.  Besides, it’s always a terrible idea to give a litigant control over something that is a lawyer’s ethical obligation.

From time to time, though, I’ll accede to a request from counsel just to put the litigant’s mind at ease (“hey, my client insists on talking to you before he forks over ten grand, so could we set up a call?”).  A few years ago, I was on a humdinger– a truly frightening call– and had the same thing happen again last week on a Zoomer.  The illustration here is an amalgamation, with details changed to protect confidentiality… neither litigant was “innocent” no matter how you look at it.  Here’s the setup:

Husband is an Chinese tech entrepreneur who lives in Seattle. His wife finally has enough of his abuse and infidelity, so she flies home to China and promptly cleans out their joint bank account.  He hires counsel and files for a divorce in King County, and is floored to learn that it will take a year or more before we can expect proof of service.  He wants me to talk to his lawyer in Shanghai so we can get the skids greased and make things happen more quickly.

Sorry, I say.  We can’t do that… there’s only one way to have service properly effected in China, and we have to let the procedure play out.  I explain to him that the bureaucracy is extensive (which he already knows) and very methodical (which he also knows).

Oh, you just let me worry about that.  I know people.  People who can make things happen for the right price.

This song instantly plays in my head.  Run away– this guy is not worth the few hundred bucks you might make on his case.

Why?

Well, for starters, don’t you just feel skeezy about it?  And beyond that, if the guy is that adamant about calling the shots, how likely is it that he’s going to let you do your job without wanting to dictate every single move you make on his behalf?

Even more important, how likely is it that he’ll be honest and forthright with you?  What sort of misrepresentations will you make to the court after he lies to you?

But most frightening of all is a little statute that most lawyers are unaware of because they rarely have an issue that crosses a border: the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et seq. (FCPA).  In short, the FCPA prohibits bribes made by or on behalf of U.S. persons.  If that Shanghai lawyer bribes a Shanghai court official to execute a Hague Service Convention Request bearing my signature… I may be on the hook for an FCPA violation.

Sure, it would be tough to connect the bribe to me.  It’s highly unlikely that anybody would ever even know about it– and even if someone in China finds out, the chances are infinitesimal that they’d ever blow the whistle at the DOJ.  Moreover, there’s a “grease payment” exception to the FCPA: de minimis amounts paid to a low level official to speed along something they’d be doing anyway… well, they’re not going to waste prosecutorial resources on that.

Sorry– for the few hundred bucks I might make on the project, it just isn’t worth the risk, to my liberty or to my reputation.

Worst starting hand in Hold ‘Em.  You draw this… just fold it, man.

(See the author’s note below for clarification on which Hague Convention!)

A Hague Service Request, commonly known in the United States as a “USM-94” but also used in Canada, can be at once straightforward and daunting.  On the surface, it’s really just a fill-in-the-blank form.  But the devil is in the details, and when hell breaks loose in Georgia, the devil deals the cards.  It’s not as easy as it might seem, for a whole bunch of reasons.*  Yet not all is lost.  You really can simplify things in a couple of ways (yes, we can do it for you, but that’s a separate discussion):

  • Avail yourself of some help on the Hague Envoy platform at usm94.com (shameless plug here).  It’s sort of like using tax prep software in the run-up to April 15th… answer a dozen or so questions, and the system will generate a completed Hague Request form, a sample cover letter, and thorough instructions on what & how to print and where to send everything.
  • Or follow this comprehensive, step-by-step How-To Guide.  I published it back in 2016, and it’s still completely valid, but a Cliff’s Notes version is in order.  Here’s an abridged version of the guide…

Steps in order:

  1. Make sure you have the right version of the form for the country you’re sending it to.  The Hague Conference on Private International Law provides model documents here— in both Word and fillable PDF– in multiple languages.  English and French run throughout, but they also have tri-lingual versions, particularly in German, Spanish, and Chinese.
  2. Fill in the blanks for your name & contact info (by “your” I mean the name of the lawyer who will sign the form) at the top of page 1.
  3. Over on the right, enter the name & address of the appropriate Central Authority in the destination country.
  4. Enter the defendant’s name & address (if you don’t have it, stop what you’re doing and see here), then check box A right below it.
  5. List the documents you need to serve.
  6. Indicate the city where you’re signing it, and date it.  After you print, you’ll sign at the bottom right, counselor.
  7. Leave page 2 blank.  The foreign authority will should use it as proof of service.  [Okay, they do it maybe two times in ten.  The other eight, they just use their own blanks.]
  8. On page 3, enter the defendant’s name & address again, just like you entered it on page 1.  Yes, I know this is redundant.  Do it anyway.
  9. And at the bottom, indicate the legal aid office nearest the court.  Yes, I know.  A massive international conglomerate doesn’t qualify for legal aid.  Do it anyway.
  10. On page 4, enter your name & contact info again, just like you entered it on page 1.  Yes, I know this is redundant.  Do it anyway.  (See a pattern here?)
  11. List the parties as they appear in the case caption.  (If the list is really long, you’re usually okay just listing the lead plaintiff and lead defendant, then say “please see complaint/petition/statement of claim for a complete list of parties.”)
  12. Nature and purpose of the document?  I usually say something like “To inform the defendant of a claim against it and to demand its appearance at court.”  No need to get wordy.
  13. Nature and purpose of the proceedings?  Just give a very brief sentence or two about what the case is about– again, no need to get wordy.  You’re not arguing here.  This is the elevator pitch, like “Plaintiffs accuse the defendant of, inter alia, negligence resulting in injury.  They seek damages, costs, and fees.” **
  14. Date and Place for entering appearance?  That’s the court— not plaintiff’s counsel’s office.  In short, where do they go, and when do they have to do it?
  15. Unless you’re enforcing a judgment or seeking a modification, the next two boxes will be n/a.
  16. Time limits stated in the document?  Just reiterate when they have to appear.

End of list.

Pocket rockets.  That’s much better.

Of course, there are lots of do’s and don’ts involved here– not the least of which is the minefield that is translation– but nobody has time for that here.  This is merely an overview, so for country-specific perspectives, hit the search bar in the upper right corner of your screen.  For the record, we’re always happy to offer a bit of guidance beyond what’s indicated here and in the original, longer version of the guide, so don’t be bashful.

 


* If it were truly that easy, I wouldn’t have a practice devoted entirely to this procedure.

** I love that phrase, inter alia.


Author’s note: I hate to be so pedantic, but it’s critical to know that there’s no such thing as “The” Hague Convention.  This pertains to requests sent to foreign authorities pursuant to Article 5 of the Hague Service Convention.  It is not a guide for requests under other Hague Conventions– and that’s a vital part of the question, because there are over three dozen of them.  We’re talking here about serving summons & complaint combinations– or citations/petitions depending on forum– as well as subsequent pleadings.  If you’re looking to serve a subpoena, this is also not what you want.  Instead, you want to talk to Ted Folkman about a Hague Evidence Convention request.

 

No.  No, no no… NO.

Stop believing key word results without thinking things through.  Just stop it.

If you Google “Process Server China” a whole bunch of hits come back that would lead you to believe that you can simply hire a guy in Shanghai or Shenzhen or Beijing to walk up to a defendant and serve him.  Heck, there’s even one vendor that says they can handle “Formal Hague” or “informal” service.

No.  No, no no… NO.

Another one says that it can serve abroad for you whether the foreign country has signed the Hague Service Convention* or not!  It just isn’t so, folks.

YOU CANNOT HIRE A PRIVATE PROCESS SERVER TO SERVE FOR YOU IN CHINA. 

PERIOD.

If you don’t believe me, ask this nice lady from Arizona; she’ll give you a straight answer:

Here’s her straight answer: “The present Convention shall apply in all cases… where there is occasion to transmit a judicial or extrajudicial document for service abroad. This language is mandatory…”

I’m serious here.  Lawyers know that taking legal advice from Google is as bad as taking medical advice from Google– every question is too fact-specific to leave it all up to an algorithm, and doing so can be disastrous.  And it’s even worse when your Google search leads you to an abjectly incorrect conclusion of law.  Let me illustrate…

Let’s say you’re in a hurry, you have a grumpy client, and you’re being yelled at by an even grumpier judge.  Your defendant is in China, and you need to get him served tout de suite.**  So you Google “Process Server China” and come to the results list I railed about a moment ago.  Notice something?  Not a single attorney in the bunch.  Just a whole bunch of people who’ve never heard of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), the case that is as critical to overseas service as Miranda is to criminal defense.

Anybody who knows that case– and who is also familiar with China’s declarations opposing the alternative methods under HSC Article 10–knows that there is exactly ONE legal way to effect service on a defendant over there, and it involves a very lengthy wait following a request to the Justice Ministry in Beijing.  That’s it.  You can’t mail it, you can’t email it (contrary to some very bad case law), and you definitely can’t hire a private agent to do it for you– if you do, that guy could be looking at a very long prison sentence for usurping the state’s authority.

But let’s also say you call the process serving agency that lands in the top five (or worse, whoever bid the highest pay-per-click on their AdWords portal) and they tell you it’s no problem getting someone served informally, they do it all the time, and if you’ll just send them a few hundred bucks, they’ll have a proof to you in a few weeks.

Whether that person is here in the United States or in a call center in Hong Kong, don’t buy it.  If you do, your next call should be to your malpractice carrier to make sure you’re paid up on your premiums, because you’re taking bad legal advice from a non-lawyer and potentially injuring your client in the process.

Either follow the HSC or don’t bother filing the suit.


* Hague Service Convention… HSC for our purposes here.

** Or, as many pronounce it, “toot sweet”.  In short, quickly.  Yesterday.  Tick tock, Clarice.  (Unfortunately, that doesn’t exist in China, and there’s no such thing as a service of process emergency anyway.)

No.  No, no no… NO.

Stop believing key word results without thinking things through.  Just stop it.

If you Google “Process Server Mexico” a whole bunch of hits come back that would lead you to believe that you can simply hire a guy in Juarez or Guadalajara or Mexico City to walk up to a defendant and serve him.  Heck, there’s even one vendor that says they can handle “Formal Hague” or “informal” service.

No.  No, no no… NO.

Another one says that it can serve abroad for you whether the foreign country has signed the Hague Service Convention* or not!  It just isn’t so, folks.

YOU CANNOT HIRE A PRIVATE PROCESS SERVER TO SERVE FOR YOU IN MEXICO.

PERIOD.

If you don’t believe me, ask this nice lady from Arizona; she’ll give you a straight answer:

Here’s her straight answer: “The present Convention shall apply in all cases… where there is occasion to transmit a judicial or extrajudicial document for service abroad. This language is mandatory…”

I’m serious here.  Lawyers know that taking legal advice from Google is as bad as taking medical advice from Google– every question is too fact-specific to leave it all up to an algorithm, and doing so can be disastrous.  And it’s even worse when your Google search leads you to an abjectly incorrect conclusion of law.  Let me illustrate…

Let’s say you’re in a hurry, you have a grumpy client, and you’re being yelled at by an even grumpier judge.  Your defendant is in Mexico, and you need to get him served tout de suite.**  So you Google “Process Server Mexico” and come to the results list I railed about a moment ago.  Notice something?  Not a single attorney in the bunch.  Just a whole bunch of people who’ve never heard of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), the case that is as critical to overseas service as Miranda is to criminal defense.

Anybody who knows that case– and who is also familiar with Mexico’s declarations opposing the alternative methods under HSC Article 10–knows that there is exactly ONE legal way to effect service on a defendant down there, and it involves a very lengthy wait following a request to the Foreign Ministry in Mexico City.  That’s it.  You can’t mail it, you can’t email it (contrary to some very bad case law), and you definitely can’t hire a private agent to do it for you.

But let’s also say you call the process serving agency that lands in the top five (or worse, whoever bid the highest pay-per-click on their AdWords portal) and they tell you it’s no problem getting someone served informally, they do it all the time, and if you’ll just send them a few hundred bucks, they’ll have a proof to you in a few weeks.

Whether that person is here in the United States or in a call center in Matamoros, don’t buy it.  If you do, your next call should be to your malpractice carrier to make sure you’re paid up on your premiums, because you’re taking bad legal advice from a non-lawyer and potentially injuring your client in the process.

Either follow the HSC or don’t bother filing the suit.


* Hague Service Convention… HSC for our purposes here.

** Or, as many pronounce it, “toot sweet”.  In short, quickly.  Yesterday.  Tick tock, Clarice.  (Unfortunately, that doesn’t exist in Mexico, and there’s no such thing as a service of process emergency anyway.)

No.  No, no no… NO.

Stop believing key word results without thinking things through.  Just stop it.

If you Google “Process Server India” a whole bunch of hits come back that would lead you to believe that you can simply hire a guy in Mumbai or Bangalore or Delhi to walk up to a defendant and serve him.  Heck, there’s even one vendor that says they can handle “Formal Hague” or “informal” service.

No.  No, no no… NO.

Another one says that its office in India can serve there whether the foreign country has signed the Hague Service Convention* or not!  It just isn’t so, folks.

YOU CANNOT HIRE A PRIVATE PROCESS SERVER TO SERVE FOR YOU IN INDIA.  

PERIOD.

If you don’t believe me, ask this nice lady from Arizona; she’ll give you a straight answer:

Here’s her straight answer: “The present Convention shall apply in all cases… where there is occasion to transmit a judicial or extrajudicial document for service abroad. This language is mandatory…”

I’m serious here.  Lawyers know that taking legal advice from Google is as bad as taking medical advice from Google– every question is too fact-specific to leave it all up to an algorithm, and doing so can be disastrous.  And it’s even worse when your Google search leads you to an abjectly incorrect conclusion of law.  Let me illustrate…

Let’s say you’re in a hurry, you have a grumpy client, and you’re being yelled at by an even grumpier judge.  Your defendant is in India, and you need to get him served tout de suite.**  So you Google “Process Server India” and come to the results list I railed about a moment ago.  Notice something?  Not a single attorney in the bunch.  Just a whole bunch of people who’ve never heard of Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), the case that is as critical to overseas service as Miranda is to criminal defense.

Anybody who knows that case– and who is also familiar with India’s declarations opposing the alternative methods under HSC Article 10–knows that there is exactly ONE legal way to effect service on a defendant in India, and it involves a very lengthy wait following a request to the Ministry of Law & Justice in New Delhi.  That’s it.  You can’t mail it, you can’t email it (contrary to some very bad case law), and you definitely can’t hire a private agent to do it for you.

But let’s also say you call the process serving agency that lands in the top five (or worse, whoever bid the highest pay-per-click on their AdWords portal) and they tell you it’s no problem getting someone served informally, they do it all the time, and if you’ll just send them a few hundred bucks, they’ll have a proof to you in a few weeks.

Whether that person is here in the United States or in a call center in Bangalore, don’t buy it.  If you do, your next call should be to your malpractice carrier to make sure you’re paid up on your premiums, because you’re taking bad legal advice from a non-lawyer and potentially injuring your client in the process.  Either follow the HSC or don’t bother filing the suit.


* Hague Service Convention… HSC for our purposes here.

** Or, as many pronounce it, “toot sweet”.  In short, quickly.  Yesterday.  Tick tock, Clarice.  (Unfortunately, that doesn’t exist in India, and there’s no such thing as a service of process emergency anyway.)

I really do love this wee fellow.

The single biggest challenge in my practice is layered– like a cake or a parfait or an onion or… everybody’s favorite grumpy, Glaswegian-accented ogre.

That single biggest challenge has three layers, to be precise:

  1. Managing my clients’ expectations– understanding that all of my clients are attorneys,
  2. Helping them to manage the court’s expectations, and
  3. Helping them to manage their clients’  (litigants’) expectations.

The first of those is pretty simple.  Practitioners get it.  For the most part, attorneys understand that litigation takes a while.  It’s just a part of the business.  They  understand that what happens here in the U.S. and Canada doesn’t happen the same way in Latin America or Asia or even Europe.  [See “Things are different overseas. Get used to it.” and “Things take longer overseas. Get used to it.”]

Judges and court officials, a bit less so.  At the federal level, that’s pretty easy to overcome [see “You’ve got a friend in 4(m).”].  Sometimes, state court officials are a little harder to convince, but it’s usually not excruciating [see “Modify State Court Summons Deadlines. Just do it.”].

But that third layer of the challenge– the litigants themselves– are a tough bunch.  Most of the time, they’re the folks paying the bills, and their view of how litigation should operate doesn’t always jive with the very real pace of the judicial system here on the North American continent.  It’s slow, it’s ponderous, and that lack of speed and agility is frustrating to people who operate in a fast-paced world.  Lawyers must constantly remind their clients– who are rightly frustrated– that litigants cannot control the docket’s pace, and if they try, they bring on the wrath of a very irate judge.

Hon. Robert Sanders, of “jibber jabber” and “poopycock!” fame.

But it’s even worse in other countries.  With a few exceptions (I’m looking at you here, Scotland… you’re brave and quick), the slow/ponderous/frustrating system we inhabit here in the U.S. and Canada is lightning fast compared to the rest of the globe.  Sure, when a litigant is frustrated by the cost or extraordinarily long wait, the smart-aleck in me wants to say “well, you should have picked a different defendant.”  But that’s just not in the cards.  The smart-aleck in me needs to be slapped on the regular, so all I can say is “I understand, but… there’s nothing we can do about it.”

A few years ago, I read an outstanding book* by Scottish therapist Gary John Bishop.**  One of the big takeaways I gleaned from it went something like this (I’m paraphrasing here):

You’re not upset/angry/frustrated because XYZ happened.  You’re frustrated because XYZ’s happening conflicts so violently with your expectations.  Adjust your expectations, bring them in line with a realistic view of the universe, and you’re going to be much less upset/angry/frustrated.

(It sounds even more eloquent on the audiobook in Bishop’s Glaswegian accent.)

That lies at the core of managing litigant expectations.  They rarely come to a lawyer because things are going well.  More often than not, they need us because things have gone horribly awry.  But it’s critical to make sure they understand– right up front– that suing an offshore defendant is a long, costly slog.  If they know at the beginning, it’s a whole lot easier to ease their minds several months into the process.


* The book’s title may offend overly delicate sensibilities.  Not to be overly blunt, but if your sensibilities are that delicate, I suggest you exit the practice of law immediately.

** Bishop– and the Glasgow sensibilities he espouses– are yet another reason I love that place.  Add Billy Connolly and a traffic cone on a statue’s heed, and I’m all in.

The Peace Palace, centerpiece of The Hague.

Let’s dig a little deeper into what that query truly means, because some variation of it pops into my inbox at least once or twice a month, from litigators in both the U.S. and Canada.  There’s a lot to unpack in those eight words, and a few things need to be clarified to get to the heart of the question, but the quick answer is… yes.

So what needs to be clarified?  Well…

  • What do you mean by “the Hague”?  Usually, the person posing the question means the Hague Convention– or more accurately, the 1965 Hague Service Convention.  It’s critical to name the Convention precisely, because rather than “the” Hague Convention, there are about three dozen of them.  Ninety percent of the questions I field like this refer to serving, but there are other important treaties, all signed in the Hague, that pertain to litigation issues.
  • What do you mean by “go through”?  We don’t send Hague Service Requests to the capital city of the Netherlands.  If the defendant is actually in the Netherlands, then we could, although I don’t recommend it (sit tight for why that is).  Instead, we send requests to the appropriate Central Authority wherever the defendant is to be served (that is, in his/her/its particular jurisdiction).
  • Taking that idea a bit further, if by “go through” you mean “go ‘through’ the Central Authority” it depends.  In places like Germany, England, Mexico, and Korea… yes.  Article 5 is your only avenue to service, so your request must be directed to the appropriate Central Authority.  But in countries like Canada, Ireland, and the Netherlands, we can go around official channels and directly engage a “competent person of the State of destination” to effect service.  (In the upper right hand corner of this page you’ll find a search bar– type just about any country and you can determine pretty quickly where you stand.)

Hopefully that clears things up in terms of this common question.  My stock answer is this:

Yes, you have to comply with the Hague Service Convention– but depending on where you need to serve, you may not have to ask the Central Authority to effect service for you.

Jason Sudeikis and Olivia Wilde in happier days. Daniel Benavides via Wikimedia Commons.

Here’s a Hollywood story that’s relevant to Hague Service issues (I promise)…

Late last month, the story broke that Jason Sudeikis had a custody action served on Olivia Wilde while she was on stage, at a public event, announcing her new movie.  In front of a room full of fans and press and industry bigwigs, that’s got to be a shocker, and more than a bit embarrassing.  The Twitterati naturally went berzerk, throwing as much vitriol at the actor as they could muster.

Sudeikis’ emphatic statement thereafter made clear that he hadn’t dictated the methodology, and that he found the process server’s approach to the situation highly inappropriate.

Now, I rarely comment about celebrity news.  Real news is tough enough to keep up with, and anybody who pays more attention to celebrity gossip than to SARS-CoV-2 or Ukraine needs some re-prioritization.  But this one is relevant to my practice.  And I have to hope that it was merely the culmination of a set of unfortunate circumstances (critical to remember: circumstances involving two young children).

After all, Sudeikis doesn’t just play Ted Lasso– he is Ted Lasso.  This fellow is, by all accounts, a tremendously nice guy.  His show has provided a much-needed feel-good experience in a tumultuous time (ie: SARS-CoV-2 and Ukraine).

Here in Kansas City (his hometown), Sudeikis is revered, not only for his portrayal of the sweestest, kindest, and most loveable fellow to ever grace the small screen, but also for his all-in efforts with Big Slick.  That’s the charity he and a couple of other KC comics (Rob Riggle and Paul Rudd in particular) grew from a small celebrity poker tournament several years ago to an annual weekend-long event that raises millions for our local kids’ hospital, Children’s Mercy.  It’s a thing, I tell you.  In this town, we love those guys, so it’s tough to imagine any of them being a litigation jerk.

So back the service of process issue…

The process server the agency sent out may have had no other option.  I’m speculating here, to be sure, but celebrities are frequently surrounded by a phalanx of security people and their homes are highly secured.  It’s tough to get close enough to them in a private setting,* so there really may have been no other way to put the documents into her personal orbit, and he couldn’t have staked out her house to tag her on her way to the supermarket (well, not without running up a huge bill).  Heck, even non-celebrities can be tough to reach– just ask the professional process servers who work for me around the world.

They have to get creative, and I sense that’s what this guy had to do.  It wasn’t Sudeikis’ fault, and it probably wasn’t a matter of Wilde being evasive.  There’s no fault involved.  It’s just circumstance, borne out of a custody dispute.  But fortunately, it was done in a way that their two kids didn’t have to watch.  That’s the positive takeaway from this, and it begs a story.

A few years ago, I was hired to have a U.S. divorce action served on a wife in Germany.  Pretty run of the mill stuff, with an accurate address, all papers in order, no real controversy at work.  But before I even had proof back from the German authorities, my client (the husband’s counsel) called to ask me to yell at the process server.  It seems the fellow who served the papers knocked on the door, and it was answered by the litigants’ 16 year-old son.

“Hey, is your mom here?”

Nein, said the kid.

“Well, would you make sure she gets these?  They’re divorce papers from the USA.”

The son had zero idea that his folks were divorcing.

Now, the fact that they’d lived on different continents for years would tell even the youngest kid that Mom & Dad aren’t exactly chummy.  But I was still mortified.  And yet, it was something entirely beyond my control.

Why?  Because in Germany and dozens of other countries worldwide, service isn’t executed by private agents like the one who placed that envelope at Olivia Wilde’s feet.  It’s effected by judicial officials, most of whom are caring and professional.  But sometimes, they just act without contemplating how their methods affect real people.  And there’s not a thing we can do about it.

An unfortunate circumstance, but true.  My client related to the husband/father that it was a court official– and not our agent– who fumbled the compassion ball so badly and we got some grace out of the deal.  I’d like to think that, until we know more about what precipitated the events, even the process server in Sudeikis v. Wilde should have some grace too.

Coach Lasso would agree, I’m pretty sure.

 


* Author’s note: we have here a case of a journalist not grasping nuanced of terms of art like “trespass”.  From the Los Angeles Times article:

“In a recent interview with People magazine, a family law attorney based in Southern California explained that process servers are instructed to hand deliver legal and court documents directly to the recipient by any means necessary. The papers must be delivered in a public setting (meaning the process server is not permitted to trespass on the recipient’s private property to hand off the docs).”

Well, yes and no.  They don’t have to be delivered in a public setting– unless a defendant’s front porch is considered a public setting (the word “curtilage” comes to mind from Crim Pro), but it’s also not considered trespassing to saunter up the sidewalk and onto that porch to serve.  Climbing a security fence or ramming through a locked gate?  Different story.