Cardinal_Richelieu_(Champaigne)
This guy ran France for about twenty years. All of his rules were Cardinal Rules.

CRITICAL to note at the outset:

  • You cannot simply serve a subpoena and expect it to work.  Whether it’s a U.S.D.C. subpoena to serve abroad, or a sister-state subpoena to serve in Missouri, mere service does nothing for you.
  • As of summer 2020, Viking Advocates has suspended work in evidence compulsion, but we can happily refer clients to Ted Folkman, who publishes Letters Blogatory and has a wealth of experience in cross-border litigation procedure, not least of which is authoring the evidence chapter of the ABA’s cross-border litigation deskbook.  Ted can be reached via his firm’s website here.  Seriously– if you call our office for help in serving a subpoena, we’re going to send you his way.
  • The Hague Conference has published a highly anticipated Guide to Good Practice on the use of video-links in cross-border depositions.  Handy stuff, and available for no cost in PDF form here.

Now, on with the show…

You can’t just serve a subpoena in France.

You can’t just serve a subpoena in China.

You can’t just serve a subpoena in Germany or Japan or India or Mexico or Switzerland or England or Austria…

Get the point?

Ye cain’t do it, Boudreaux.  You can’t just “serve” a subpoena in a foreign country.  For that matter, you can’t just serve a subpoena in another state.  A subpoena is a demand by a lawyer, backed up by the contempt power of the court.  But just as that contempt power stops at the jurisdictional boundary (the state line), the subpoena loses its coercive effect when it crosses that boundary.  It only regains coercive effect on the other side of the line either through a domestication action (in the other state’s courts) or under the authority of a statute– and even the statutory mechanism is not necessarily automatic.

At the international level, it’s even more tricky, because there is no statute.  And the procedural analog to domestication is incredibly complex.  There is a treaty involved, but it really only greases the domestication skids.

The 1970 Hague Evidence Convention

It isn’t unreasonable to think that a subpoena can be conveyed abroad in the same way we serve summonses and complaints.  After all, the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (very long name for the Hague Service Convention) is a great mechanism for getting the job done.

Subpoena… judicial or extrajudicial document.  Pretty straightforward, right?

Wrong.  Subpoenas are not “Judicial (or) Extrajudicial Documents” for the purposes of the Service Convention– at least, not with any teeth.  Instead, they fall within the scope of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (long name for the Hague Evidence Convention).

And that is where the wheels fall off the wagon, so to speak.  Instead of serving the thing, you have to seek its (for lack of a better word) domestication.  And that comes through a Hague Evidence Request (in countries not party to the Convention, an old fashioned Letter Rogatory is used).

That request functions just like a Letter Rogatory, in that it is a communication from one judge to another.  The only real difference is that it doesn’t have to be conveyed through diplomatic channels to the court in the foreign country.  But neither of these instruments can look like a subpoena.  They can’t contain subpoena language, they can’t reflect the demanding tone of a subpoena, and they can’t look like they belong on a rack at Bass Pro Shops.*  Careful drafting is critical, or the whole exercise is a massive waste of time and resources.

Dales Fuzzy Photos, via Wikimedia Commons
Dales Fuzzy Photos, via Wikimedia Commons

THREE CARDINAL RULES for Evidence Requests:

  1. Take the words “any and all”, and eliminate them from your vocabulary. Seriously.  They are the hallmark of good old ‘Murican discovery, and foreign courts hate that.  The French, the Germans, the Chinese, the Brits, the Canadians (yes, the Canadians hate our discovery practices, of all people, but I digress, as they aren’t in the Evidence Convention**).
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel in the foreign jurisdiction.  At the front end, they’ll help you draft the request (see #1 and #2 above) and at the back end, they will appear for you in the foreign court that will (or won’t) execute the request.

This is only the beginning of the process, but if you don’t start here, you’re sunk.

Above all, you must be surgically specific in identifying what you seek (see Rule 1).  Instead of “provide copies of all emails between your staff members from July, 1983 to June, 1987 pertaining to the promotion of Strange Brew“, narrow it down to “provide a hard copy of the email exchange between Bob and Doug on the morning of August 7, 1983 with subject heading ‘This movie is terrible.’”

Don’t say “the text included therein is expected to identify all of the persons involved in creating a horrible film, and we can’t identify them any other way.”  Say “we anticipate that both Bob and Doug will testify under oath that they created a wonderful comedy romp, and this evidence will directly refute such testimony.”

Yes, it needs to be that concise.

* Bass Pro Shops.  You know.  The fishing rod place?  [Peggy is reminding me that “if you have to explain it, it isn’t funny.”]

** Canada is not party to the Evidence Convention, but the Letter Rogatory process may not have to involve the State Department when evidence is located north of the border.  It turns out that Ireland operates similarly.  Japan is also not party to the Evidence Convention, and it’s a very tough nut to crack regardless.

You’ve served the complaint on all of your defendants, they’ve entered their appearances, and everybody is girded up for battle.  Discovery commences.  In one of your depositions, you learn that one of the defendants was somehow selling a knock-off of your client’s product through a German distributor, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.  The big enchilada  streuselkuchen.  The damning piece of documentary evidence that will vindicate your client’s rights and bring the defense to the light of truth and human understanding.

[The author intones, as if in a Gregorian chant…]

For you, glorious and gentle counselor, have preached the gospel of truth.  You have spoken the word! Echoing the wisdom of Moses, Hammurabi, Augustine… James Brown.

[You’re getting a bit of a big head, don’t you think?]

You implore your fellow pilgrims to create an epistle of truth for the ages!

Alrighty, then.  You tell your paralegal to draft a subpoena, and you tell her to run a Google search to find out how to serve that thing on the German company at its office in Munich.  She puts together the subpoena in about twenty minutes, and comes back to you with the name of a guy who says he handles process service in other countries.

Outstanding, you think, and off to the mission field you go.  You plunk down $1,000 to have the subpoena translated into German, and send another $1,000 to Joe Bob the Process Server to pull the paperwork together, and then you wait.

Joe Bob is not a lawyer.
Joe Bob is not a lawyer.

Three months later, you get a nasty-gram from the the Justice Ministry in Berlin, telling you that “NEIN, MEIN HERR/MEINE FRAU.  DAS IST UNMÖGLICH.”  No, sir/madam.  That is impossible.

Where did the wheels fall off?

  • Well, first, you let a process server [a guy without a without a law license] tell you that you had the right procedure in mind [yes, you should give your professional liability carrier a heads-up].
  • What Joe Bob didn’t know is that the Hague Service Convention doesn’t magically confer coercive effect on a subpoena (they’re covered by the Hague Evidence Convention), and even if it did, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
  • Second, even if the Service Convention were right, and even if you signed the thing instead of Bob, the Präsidentin des Oberlandesgerichts München (the State Court President in Munich) is the Central Authority in Bavaria.  Joe Bob erroneously sent the thing to Berlin.
  •  Third, you can’t just “serve” a subpoena.  It doesn’t work that way.  If you hold out any hope that the German third-party will comply, you have to send a Hague Evidence Request through the appropriate channels, and ask a German court in the right state* to compel production.
  • Fourth, the Germans have blocking statutes that may prevent compulsion, and they’ve indicated that they rather like Article 23 of the Evidence Convention.  Sorry, that’s just the way it is.  But there are certain exceptions to the statutes and to the Article 23 declaration; your request has to be written in just the right way.
  • Oh, and you didn’t say “bitte.”  The Germans have a very rigid view of decorum.  Where is your sense of propriety?  (I kid.  Of course, you said bitte.  You just didn’t say it to the right person in the right way.)

So, let’s tee this up again, and try a more subtle approach to getting the smoking gun you so gleefully seek.

Here are the THREE CARDINAL RULES for Hague Evidence Requests:

  1. Take the words “any and all”, and eliminate them from your vocabulary.  Seriously.  They are the hallmark of good old ‘Murican discovery, and the Germans hate that.  So do the French, the Chinese, the Brits, the Canadians (yes, the Canadians hate our broad discovery practices, of all people!).  You must be surgically specific in identifying what you seek.
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel.  At the front end, they’ll help us/you draft the request (see #1 and #2 above) and at the back end, they will appear for you in the foreign court.

Give me a shout if any of this doesn’t make sense.  Enough said.

* Much like the U.S., Germany is a federal system, where some areas of the law are controlled at the national level, others at the state (“Land“) level.

You’ve served the complaint on all of your defendants, they’ve entered their appearances, and everybody is girded up for battle.  Discovery commences.  In one of your depositions, you learn that one of the defendants was somehow involved in a business arrangement with a French entity, and you are convinced that somewhere in that company’s vast filing system lies the smoking gun.  The big enchilada croissant.  The damning piece of documentary evidence that will vindicate your client’s rights and bring the defense to its knees, trembling before the searing heat of your onslaught.

[The author bellows, in a deep, resonant voice…]

For you, counselor, are a gladiator.  A warrior for justice! Wielding a mighty sword, forged by men like Blackstone, Marshall, Holmes… Wapner.

[You’re getting a bit of a big head, don’t you think?]

You command your minions to create a mighty instrument of warfare!

Okay, you tell your paralegal to draft a subpoena, and you tell her to run a Google search to find out how to serve that thing on the French company.  She puts together the subpoena in about twenty minutes, and comes back to you with the name of a guy who says he handles process service in other countries.

Outstanding, you think, and off to the wars you go.  You plunk down $1,000 to have the subpoena translated into French, and send another $1,000 to Joe Bob the Process Server to pull the paperwork together, and then you wait.

Joe Bob is not a lawyer.
Joe Bob is not a lawyer.

Three months later, you get a nasty-gram from the Justice Ministry in Paris, telling you that “NON, MONSIEUR/MADAM.  CA, C’EST IMPOSSIBLE.”  No, sir/madam.  That is impossible.

Where did the wheels fall off?

  • Well, first, you let a process server—without a law license—tell you that you had the right scenario/legal conclusion in mind [yes, you should give your professional liability carrier a heads-up].  What the process server didn’t understand is that subpoenas aren’t given coercive effect by the Hague Service Convention (they’re covered by the Hague Evidence Convention), and even if they were, Joe Bob isn’t authorized to sign Hague Service Requests because Joe Bob is not a lawyer.
  • Second, you can’t just “serve” a subpoena (at least, not with any coercive effect).  It doesn’t work that way.  You have to send a Hague Evidence Request through the appropriate channels, and ask a French court to compel production.
  • Third, the French have blocking statutes that may prevent compulsion, and they’ve indicated that they rather like Article 23 of the Evidence Convention.  Sorry, that’s just the way it is.  But there are certain exceptions to the statutes and to the Article 23 declaration; your request has to be written in just the right way.
  • Fourth, you didn’t say s’il vous plaît.  Manners matter to those folks in France.  Where is your sense of propriety?  (I kid.  Of course, you said s’il vous plaît.  You just didn’t say it to the right person in the right way.)

So, let’s tee this up again, and try a more subtle approach to getting the smoking gun you so gleefully seek.

Here are the THREE CARDINAL RULES for Hague Evidence Requests:

  1. Take the words “any and all”, and eliminate them from your vocabulary.  Seriously.  They are the hallmark of good old ‘Murican discovery, and the French hate that.  So do the Germans, the Chinese, the Brits, the Canadians (yes, the Canadians hate our broad discovery practices, of all people!).  You must be surgically specific in identifying what you seek.
  2. Articulate precisely how that evidence is going to be used at trial.  Not that you think it may lead to other evidence or that you suspect that it might be relevant.  You have to say you need it to impeach a witness’ expected testimony or that it is a critical component of your trial theory…
  3. Hire local counsel.  At the front end, they’ll help us/you draft the request (see #1 and #2 above) and at the back end, they will appear for you in the foreign court.

Give me a shout if any of this doesn’t make sense.  Enough said.

 

 

Further to my November 29 post regarding President Obama’s ratification of the Convention of 05 July 2006 on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary (the Hague Securities Convention)…

The Hague Conference’s Permanent Bureau announced yesterday that the United States has deposited the official ratification instrument for the treaty with the Dutch Foreign Ministry.  The Bureau’s release can be found here.

Our ratification triggers the treaty’s entry into force on April 1, 2017.  Sure, the only other two countries to sign on thus far are Switzerland and Mauritius, but with the U.S. coming on board, the Hague Conference expects many more in rapid succession.

More will follow on the treaty’s implications and implementation as details are released by the State Department.

 

A seemingly nondescript office block next door to the International Criminal Tribunal for Yugoslavia... Churchillplein 6 is home to the Permanent Bureau of the Hague Conference.
Churchillplein 6, home to the Permanent Bureau of the Hague Conference.

I first learned of the treaty’s imminent ratification during my visit to the Permanent Bureau last month.  

Our group (lawyers from Missouri and Kansas) was very warmly welcomed by the Secretary General, Dr. Christophe Bernasconi, and his two legal officers, Mayela Celis and Brody Warren.  Incredibly gracious people, who know the Hague Conventions better than anyone.  Of course, it’s their job, but they do it spectacularly well.

Carrots
Image by "Kander" via Wikimedia Commons.

Here is yet another post in our “How to Avoid Having to Hire Us” series.  Depending on your perspective, though, it could be viewed as “How to Recover the Fees You Pay Us” instead.

Frankly, I prefer the latter.  In this installment, we explore how to get the defendant to waive service or, looking at it from another angle, why a foreign defendant ought to waive.  [This pertains to federal suits, where service of process is governed by FRCP 4, found in its entirety here.]

The best way to avoid procedural headaches and the significant cost of serving abroad?  Ask the defendant to waive service.  Don’t get them to accept service—get them to waive.  Take a carrot & stick approach if need be, because with a waiver, everybody wins—the plaintiff avoids a hassle, the judge has one less issue to deal with on her docket, and the defendant can count on some much-needed grace from the judge later on.

The Carrot, 4(d)(3)

The upside to a waiver: extra time.  An ordinary civil summons requires a defendant in Paris to answer a complaint within 21 days of service, whether it’s the Paris in Texas or the one in France.  But if the U.S. defendant waives service, he gets sixty days, while the foreign defendant gets a full ninety days to answer.  Three months instead of three weeks… a handy negotiating tool when opposing counsel is on the phone telling you his client won’t authorize him to play ball.

The Stick, 4(d)(2)

Two downsides to a refusal: (1) a perturbed/annoyed/frustrated judge, and (2) fee-shifting, resulting in no small part from the judge’s perturbation.  The court has to assess fees to U.S. defendants who refuse a waiver—not only the fees to effect service, but also the cost for counsel to write and submit a motion to collect those fees.*

Important to note: the fact that a judge isn’t compelled to shift fees to foreign defendants doesn’t mean she can’t shift fees to foreign defendants.  The tool is available to plaintiffs, but it is very rarely used (I welcome readers’ thoughts as to why that is).  A bit of analysis is in order to support my contention that it can (and should) be done…

Rule 4(d)

Rule 4(d)(1) compels defendants to prevent the unnecessary expenses of serving process.  That means all defendants, without qualification.  And unless they can demonstrate a darned good basis for refusal, they have to reimburse the cost to serve them.

This fee-shifting is mandatory for U.S. defendants, as is clear from the plain language of 4(d)(2).   Less clear is how fee-shifting applies to foreign defendants.  For reasons not entirely fleshed out in the Advisory Committee Notes, 4(d)(2) doesn’t address the issue as to foreigners.  Arguably, it might seem to proscribe such fee-shifting by omission, and one statement in the 1993 Notes indicates that foreigners need not show good cause.  This argument is undermined by two ideas:  (1) the extra month offered to foreigners who waive, and (2) the extra time allowed for reply to a waiver request, as set forth in 4(d)(1)(F).  Moreover, the ’93 Notes go into significant detail as to why a foreign defendant is just as obliged as a U.S. defendant to avoid forcing a plaintiff to spend unnecessarily.  They even suggest that foreigners are even more obliged to waive in light of the significantly higher costs of serving them.

Serving process domestically isn’t that costly—a hundred bucks to a process server or local sheriff will usually do the trick.  But the bill for service abroad can reach the five-figure range, especially where pleadings are quite lengthy (e.g.: patent litigation) and must be translated.

If Apple, Inc. is accused of patent infringement, service is pretty simple and pretty cheap.   But if Samsung or LG are accused of the same infringement, the cost to serve them in Korea is astronomical.  Translation of a patent in the consumer electronics world can run into tens of thousands of dollars.  Likewise, serving GM or Ford in a product defect action is inexpensive and fairly straightforward.  But such an action against Volkswagen or BMW in Germany, Toyota or Honda in Japan, Hyundai or Kia in Korea… again, thousands of dollars.

All of these defendants profit significantly from the U.S. market, yet are the foreigners immune from the obligations placed on U.S. companies?  Highly doubtful that a judge would see it that way.

That 4(d)(2) identifies only U.S. defendants results from very confused diplomatic pressure by the United Kingdom, as detailed in Brockmeyer v. May, 383 F. 3d 798 (9th Cir., 2004) (begin at 807 for a bit of a lark).**  A conclusion that fees simply cannot be assessed to defendants who refuse to waive is flat wrong, and the ’93 Notes bear this out by describing specific conditions under which they should be excused.  Brockmeyer seems to say—in dicta, admittedly—that foreign defendants bear the same duty, and are therefore subject to the same penalty for refusal, as domestic defendants.

Policy

The reason underpinning the fee-shifting rule is simple: even contentious litigation must proceed under a certain code of conduct, lest the docket be unnecessarily clogged and the cost of litigation exceed already stratospheric levels.  As part of that code of conduct, parties are expected to concede certain inevitabilities; among them is the certainty that they will be served eventually, so making the plaintiff jump through flaming hoops is, at best, churlish.

My wife, Peggy, articulates this idea much more succinctly: Don’t Be a Jerk.  (And when I’m a jerk, this happens.)

Now, Peggy is a world-class expert in dispute resolution (seriously—she aced a master’s program in the field at a Jesuit school, and those Jesuit guys are hardcore).  She will argue until she’s blue in the face that a suitable resolution is far more likely if grown-ups act like grown-ups.  If a defendant is recalcitrant and refuses to waive service merely because they can refuse, it’s going to be a long, cold, lonely winter.  I’ll leave civility arguments to more learned colleagues, but it seems awfully clear that if a defendant is unwilling to waive service, they will probably be just as unwilling to fight under Queensberry rules after the opening bell.  Nobody on either side should expect the grace of an extra few days on a pleading deadline.

But it does not have to be that way.  If you’re defense counsel, I urge you to simply waive if the plaintiff asks nicely.  (On the other hand, if they proceed straight to service, let me take a look at it to ensure that it’s solid!)

Push the Issue, But Only If You Can Enforce a Judgment Here

The bottom line if you’re plaintiff’s counsel: ask for a waiver, following the steps outlined in 4(d)(1).  If they ignore or refuse your request, hire somebody to have service effected (or if you must, handle it yourself, but still outsource the translation), and then move for fee-shifting!  There is no reason that your client should bear the cost of serving a defendant who is obliged to avoid that cost in the first place.

Of course, tread lightly.  In light of the confused British objection, which I imagine would be joined by any number of other countries, plaintiffs may be wise to assert their right to fee-shifting only if the defendant has assets here in the United States.  If you have to go abroad to collect, you are better off eating the cost to serve, and collecting only on the judgment itself.

 

* Oddly enough, I’ve never had anybody take me up on my suggestion that they recoup my fees from a defendant who refused to waive.  Heck, I’ll even write the motion.

** Brockmeyer, incidentally, is part of a significant circuit split over the issue of mail service under the Hague Service Convention.  I insist that the Brockmeyer court got it wrong, rather than following Ackermann v. Levine (2d Cir., 1989).  Although Hague mail service is a bad idea, it’s legally valid, as I predict the Nine Eight Wise Souls will hold very soon.

UPDATE, May, 2017:  Brockmeyer has been overturned— unanimously– at least as far as its prohibition on Hague mail service is concerned.  That holding is no longer good law, but the dicta are still informative.

 

 

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 handle car accidents, not immigration.  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 Boromir into your slide deck!

Seriously.
This is Boromir.  It is not Ned Stark.

Wait a sec, there, pal.  First of all… immigration?  You’re kidding, right?  You did just sit through my lecture on international law, right?  Those are not the same concepts.  (He’s not kidding, sadly.*)

Second of all (setting my incredulity aside), let’s say you do handle car accidents exclusively, no visa applications ever.  What if some random Swede rents a car from the Avis desk at the airport, and an hour later, he sideswipes your client?  Yeah, you’re going to sue Avis.  Yeah, you’re going to sue their insurance company.

But don’t you think you might have to serve old Bjorn?  (Yes.) And just how are you going to go about doing that?  (Hmmmm.  I never thought about that.)

Borg 1980
A random Swede.  A random Swede with five consecutive Wimbledon titles.

Well, if you’re going to serve him in Sweden, start off by looking up the Hague Service Convention.  It’s mandatory doctrine if you need to serve Bjorn in his homeland.  Oh, wait… he lives in Monaco, you say?  Well, that muddies the waters just a bit (though not much). Hague restrictions apply there, too, so you have to decide where you think you have the best shot at serving him.  [Hey, John McEnroe almost pulled it off.]

Next, you’ll have to set up a translation of the documents, even though I have yet to meet a Swede who doesn’t speak English as well as I do.  Sweden requires it (kinda).  Monaco doesn’t require it (kinda), but good luck getting a huissier de justice to approach the net without one.

Then ask the Central Authority, either in Stockholm or Monte Carlo, for help (even though the Swedes don’t technically object to Article 10 methods).

Last, pray that you’ve filled out your USM-94 correctly.  That’s a big one.  Very important, the USM-94.

If you don’t get him served…

THIS is Ned Stark.
This is Ned Stark.

You’ll have a tough time getting the judge to proceed without that indispensable defendant.

* A huge segment of the practicing bar thinks that international law is immigration law, and immigration law is international law.  My local bar association even conflates the two ideas in its committee structure.  This is so baffling that both the international lawyers and the immigration lawyers in town have given up trying to convince everybody else.

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 probate 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 Boromir into your slide deck!

Seriously.
This is Boromir.  It is not Ned Stark.

Wait a sec, there, pal.  It’s likely that you will have to serve abroad someday.  Ever have an intestate decedent?  (Yes.)  Ever need to serve his heirs?  (Yes.)  Think he might have a cousin or two in the old country?  (Hmmmm.)  Bear with me here…

It doesn’t matter what court is handling the probate, and it doesn’t matter if the judge is certifiably nuts and is sick of all your service of process jibber jabber.

Quick war story here:  probate lawyer calls me a couple of years ago and says, “I’ve got a guy with a million dollars in land and a collection of antique tractors, but no kids, no wife, no siblings… and no will.”

Wow, I thought.  Somebody’s about to get a happy gram about Cousin Stan.

Turns out that Stan was short for Stanislaw.  Stan was a Polish immigrant who came to America after the war and made a pretty good go of it.  But he never got married, and had precisely zero family in America.  The internet is a wonderful thing, however, so the estate’s court-appointed lawyer found out pretty easily that Stan had elderly three sisters in Poland.  Not one of them spoke English, so they didn’t respond to the lawyer’s letters.

“How do I serve them?” he asks.

Pretty straightforward, I replied.  We send a request to the Justice Ministry in Warsaw (Poland’s Hague Central Authority), and they take it from there.  It was all wrapped up in about three months; the judge was happy, the elderly sisters had a nest egg, and Stanislaw was a local hero in his old village.

It bears repeating.  The Hague Service Convention controls how all this gets done wherever it applies.  It’s a treaty, to which the United States is a party, and which entered into force right about the time my mom graduated from high school.  Thanks to the Supremacy Clause, its strictures trump lesser laws.  A gentle reminder:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  (Art. VI-2)

(Emphasis mine.)

Judge_Sanders
Judge Sanders does not tolerate jibber jabber.  Or poopycock, for that matter.

In short, if the judge raises a stink that it’s taking too long, tell the judge that James Madison & Alexander Hamilton said he should give you a break.

Unless he’s a lunatic, like this guy —>

 

 

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 Boromir into your slide deck!

Seriously.
This is Boromir.  I use him all the time in CLE decks and in blogs. Why reinvent the wheel? (To be sure, this is not Ned Stark.  It just looks like Ned Stark.)

Wait a sec, there, pal.  It’s likely that you will have to serve abroad someday.  Ever run into an adversarial proceeding?  (Yes.)  Ever need to serve process on an adverse party?  (Yes.)  Think the Royal Bank of Scotland, or perhaps Credit Suisse might be your adversary?  (Hmmmm.)  Bear with me here…

The Rules of Bankruptcy Procedure govern how to manage an adversarial proceeding in Bankruptcy Court.  Perfectly logical.  And Rule 7004 governs how to serve the summons.  Again, logical.  But 7004 doesn’t get into a great deal of detail; it just incorporates the lion’s share of Rule 4 (Fed. R. Civ. P.) by reference.

The reality is that a bankruptcy action is going to be served under Rule 4 in most cases.  That’s fortunate when you have a foreign adversary because 7004 doesn’t say anything about service abroad.  Rule 4(f) specifically incorporates the Hague Service Convention, and even if it didn’t, Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988), does.  Schlunk says specifically that if the Convention applies, you have to follow it.

Bankruptcy lawyers, rejoice.  For you are under no heavier a burden than the rest of us.  Just pretend you’re trying a civil action, say, a patent infringement or what have you. No difference in how you get service effected.

There’s a problem, though:  proper Hague service takes a while.  A very long while in many instances.  And bankruptcy summonses expire thirty days from issuance.  Not a big problem here at home.

But, hang on, says the adverse party.  It is a problem here at home.  You mean to say that if the thing isn’t served for three weeks, I only have nine days to answer? 

Well, no, not exactly.  The serving party has to get the thing served, or at least, in the mail, within seven days, per 7004(e).  Assume a couple of days in the custody of the United States Postal Service, give or take, and you’re going to have roughly the same amount of time to answer a Bankruptcy summons as you would a regular Summons in a Civil Action (21 days).

But 7004(e) applies only within the United States.  The seven-day rule doesn’t apply when serving abroad.*  So how to get around the expiration?

You have to get the language modified.  Just do it.

To be fair, any adversary is going to need two or three weeks to properly answer a complaint.  This is why a civil defendant gets a standard 21 days from service (Due Process and all that stuff?).  Simply put, though, if you have to serve an adversary outside the United States, it ain’t gonna happen quickly.  Sure, we might be able to get it done in England or (Anglophone) Canada within a couple of days.

Nnnnnnneee!
Nnnnnnneee!

In France?  Non.  Germany?  Nein.  The Netherlands?  Nee. —>

In Mexico or China or India?  Not a snowball’s chance in hell.

And if the document expires by its own terms before a judicial officer even gets his hands on the thing, he won’t serve it.  So…

If the clerk uses a B2500A form, you have to get the language modified.  This:

YOU ARE SUMMONED and required to file a motion or answer to the complaint which is attached to this summons with the clerk of the bankruptcy court within 30 days after the date of issuance of this summons, except that the United States and its offices and agencies shall file a motion or answer to the complaint within 35 days.

… should become:

YOU ARE SUMMONED and required to file a motion or answer to the complaint which is attached to this summons with the clerk of the bankruptcy court within 21 days after the date of service of this summons.

The BTXN 117a (an older version of the summons) includes a safety valve:

{If this summons and complaint is served in a foreign country} Service of your answer must be made by the following date prescribed by the court ______________.

… but if the clerk gets lazy and just types “N/A” in the blank, you have to get the language modified.

{If this summons and complaint is served in a foreign country} Service of your answer must be made by the following date prescribed by the court within 21 days of service.

It bears repeating.  The Hague Service Convention controls how all this gets done wherever it applies.  It’s a treaty, to which the United States is a party, and which entered into force right about the time my mom graduated from high school.  Thanks to the Supremacy Clause, its strictures trump lesser laws (that includes the Rules of Bankruptcy Procedure and pre-printed forms that are incorrectly filled out by court clerks).  A gentle reminder:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  (Art. VI-2)

(Emphasis mine.)

In short, if the clerk balks at revising the language, tell the clerk that James Madison & Alexander Hamilton said they have to.

* Rule 4(m) sets out a 90-day deadline for service in civil actions, but that deadline is also inapplicable to service abroad.

sleep_of_reason
The Sleep of Reason Produces Monsters, Francisco de Goya, 1798.

A couple of years ago, I ran into a law school classmate at a happy hour hosted by our local bar association.  “Hey, you handle service of process in other countries, right?”  Yeah, I answered.  Quite a bit of Hague Service Convention stuff.

“Great.  Let me ask you a question…”

He was handling a divorce case, representing the wife.  They had two kids and a mortgage, both had decent jobs, and both worked hard to make a better life.  Your typical Midwestern existence, except for one thing: the husband was Mexican, and had “overstayed his welcome,” as it were.  For whatever reason, he’d returned to Mexico, and resumed residence with his parents.  He kept in touch with his wife and kids, and sent a few pesos north now & then as he was able, all while trying to get his green card the “right way” (by “standing” in the mythical line at the Embassy).

One day, the wife decided she needed to move on with her life.  Not an unreasonable decision given the state of U.S. immigration law, though it certainly raises a question about her level of commitment in the first place.  She hired my classmate, a pretty top flight lawyer, to file the petition.

His question to me, as we sipped our Boulevard Pale Ale:  “the judge told me if I didn’t get him served within a week, he was going to dismiss the case.  When I told him it would take longer because the guy’s in Mexico, he said he didn’t care if he was on the moon, just get it done.  So I mailed everything to him.  That’s okay, right?”

Now, being Norwegian, I’ve always felt a sort of fraternal connection to Edvard Munch (I’m more a fan of his French contemporaries, but I digress).  Naturally, my reaction was this:

munch_edward_3
That bad.

No! It’s very much not okay!  If you don’t march down to the court tomorrow and file a notice that you need sufficient time to do it properly, the following will happen, in order:

  • The defendant fails to answer the petition.
  • The judge gladly hands you a default judgment, granting everything you’ve demanded in payment, just to clear his docket.
  • Woo hoo!  You have a very happy client, who now owns her house in fee simple absolute, who now has sole legal and physical custody of the kids, and who can now marry that handsome fellow she met in the frozen foods section at Piggly Wiggly.
  • She tells all of her friends at the PTA that you’re the greatest attorney in town, and they will all flock to you because their husbands are ne’er-do-wells, and they want to find a handsome fellow at Piggly Wiggly, too.

But here comes the nightmare…

  • Five years on, the Mexican (ex-)husband gets a letter from the U.S. Embassy in Mexico City.  Congratulations, sir.  Given that you are a hardworking father of two U.S. citizen children and have waited patiently these many years, you may now enter the United States and freely participate in our economy.
  • First thing he does when he gets back?  He goes home, to find that his kids address Piggly-Wiggly-Guy as “Dad”.
  • He hires the nastiest lawyer he can find to re-open the action that took away his house and his kids.
  • Naturally, because he was served in Mexico in a manner contrary to that country’s declarations to the Hague Service Convention, he is granted a new hearing.*
  • In which he prevails, forcing Mr. and Mrs. Piggly-Wiggly-Guy to cough up half the value of the house they’ve been happily living in, thinking she owns it in fee simple absolute.
  • And in which Dad is granted 50/50 custody** of the children and thus awarded child support because Mom makes a whole bunch more money than Dad does.
  • Which facts make Mr. and Mrs. Piggly-Wiggly-Guy ponder how to best end your career as a lawyer.
  • Their new lawyer calls me for an opinion letter to include in his petition for damages.  I decline, of course, but I can’t save you.
  • You call your malpractice carrier, who promises to settle the claim, and then drops you like a hot rock.
  • The PTA moms stop calling.
  • Sallie Mae does not.

Okay, perhaps there’s a wee bit of hyperbole there.  But the real takeaway?  I don’t care if the judge orders you to serve somebody by mail in a Hague country that objects to it… DO. NOT. DO IT.

Politely tell the judge he’s wrong, call in some help, and do it right.

 

* Why does the Hague Service Convention matter?  Because Sandra Day O’Connor said so.

** We have a new 50/50 presumption in Missouri, which was not in effect on the date of the ill-fated scream I emitted at the bar association happy hour.  [For crying out loud, yes, this is a fabricated story.  In part.  The question was for real, and the answer is substantially a reflection of my real response.  The background… all made up.]

[Author’s note:  I am a huge fan of the Harry Potter universe.  The new “prequel” really is fantastic.  Go see the movie, buy the script… immerse yourself in this new story line. Or as of summer 2022… see the latest in the magizoologist’s story.]

Newt Scamander had a problem when he showed up in New York.  The beasts squirreled away in his suitcase weren’t legal in the U.S. (under either No-Maj law or Wizarding law).  Even if he had acquired the proper permits before leaving the United Kingdom, those permits wouldn’t have been valid in the U.S. either.  Given that it was 1926, validating the permits would have been a monumental challenge.  Back then, the “legalization” process was lengthy, arduous, and a flat-out pain in the neck.

Fortunately, it’s a whole lot simpler today thanks to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, more commonly known as the Hague Apostille Convention (there will be a quiz later).

Simply put, an Apostille is a certificate that gives a public document legal effect in other countries (those that are members of the treaty, anyway).  It is attached to a document by a designated government agency, and essentially points to the signature of an official (including a notary public) and says “yep, that’s a valid signature.”  An Apostille has no bearing whatsoever to the veracity of the document’s contents; it merely authenticates the signature of the person signing the document.  Think of it like a notarization of a notarization.  The old way of doing things had a half-dozen steps or more; with the Apostille procedure, just one or two steps legalize the document.

Even private documents like contracts, wills, conveyances, etc. can carry an Apostille if they are notarized.  The “public” aspect of such an Apostillable (yes, I made up that word) document is the notary signature alone.  A private document can’t magically become public, even in the wondrous imagination of J.K. Rowling, but the validation of a Missouri notary’s signature by the Missouri Secretary of State gives it legal effect in the other countries that have joined the treaty… pretty handy stuff.

A routine example: defense counsel in Missouri needs a plaintiff’s medical records from England.  Generally speaking, a garden-variety medical records release will suffice if the plaintiff’s signature has been notarized.  Unfortunately, the Missouri notary’s signature carries no weight in England.  [Or France, for that matter.  Or Hungary.  Remember Hogwarts, Beauxbatons, Durmstrang… the Tri-Wizard League!  All are in Apostille countries.]

But Jason Kander, Missouri’s Secretary of State,* spent a semester abroad at Hogwarts when he was a kid, so he can conjure an Apostille Charm, which makes the notarization magically effective abroad.

Here in the U.S., Apostilles are most often provided by the Secretary of State in each state**, while in the United Kingdom, it’s a one-stop shop at the Foreign & Commonwealth Office.  Being a No-Maj (Muggle), I don’t have access to the proper website to determine who the magical authorities are in either country.  Attorney witches and wizards are invited to violate the Statute of Secrecy and tell us in the comment section below (I hear Azkaban is much more tolerable now that they’ve kicked out the Dementors).

*  Jason has been a hell of a Secretary, and I can’t wait to vote for him again.  Frankly, his wife, Diana, is the bigger star (and he’d agree).  Watch her Ted Talk.  Read her book.  [Update:  this was originally published before Jason’s term ended.  The new Secretary is Jay Ashcroft.]

**  U.S. issuing authorities vary depending on the nature of the document to be authenticated.