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Taos County, New Mexico. Sheriff Montoya discusses business with a process server, 1941. NARA photo.

The vast majority of cases I work on are a lot like the material we read in law school.  My Torts professor told us on more than one occasion that “there are real people behind every one of these cases.”  My cases are no different.

She also told us that they were in these casebooks because some lawyer goofed.”  Or words to that effect, anyway.  I took both thoughts to heart, and they have guided my immersion in the profession ever since.* 

Last year, when I posted “Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts,“ I had those real people– and preventing lawyerly goof-ups– in mind.  But lately, I’ve realized that some elaboration is necessary.  Why those five things matter ought to be apparent.  But some nuance is necessary, so I offer a five-part series that elaborates on each point, more for than benefit of lawyers than for the business owners who want to venture abroad.  

Those five things, in turn…

  1. Designate an agent for service in the United States.
  2. Include a choice of venue.
  3. Choose a governing law.
  4. Determine the operative language.
  5. Secure a guarantee of judgment debt.

If you choose not to decide, you still have made a choice.

— Neal Peart, 1979

To elaborate on Point One…

Designate an agent for service in the United States.

All U.S. entities must designate an agent for service when they incorporate, organize, or register with their respective Secretary of State.  Foreign (that is, non-U.S.) entities usually bear no such responsibility.  If a lawsuit against one of those entities becomes necessary, you probably won’t be able to just hire a process server in the foreign country. You will need someone like me to handle it for you or, worse, you’ll spend hours just researching how it’s done (and then bill nobody for that time).  With a U.S. agent, regular U.S. practice is perfectly fine.  (And to go one better, have the contract stipulate that the agent can be served by email!)

When you hire me, I’m going to charge you at least a few hundred bucks per defendant.  And although your client is going to save money if you hire me instead of doing it yourself (I elaborate here), I’m not cheap, and neither are my competitors if you’re doing it right.

Now, who should that agent for service be?  Well, that’s a tough one, especially if the foreign party isn’t registered with a particular Secretary of State (very few are– and don’t just assume you can serve a Secretary of State by default, because the Secretary is usually just a link in a chain of service, and Hague restrictions still must be observed).  The foreign party may have U.S. counsel, they may have a U.S. subsidiary, or they may have some other U.S. presence that can be specifically designated and authorized to accept service on their behalf.  Just be careful about who is selected.  Some pitfalls:

  • Designated U.S. counsel:  imagine that in the contract, the foreign party has designated its Boston attorneys– Crane, Poole, and Schmidt— to accept service on its behalf.  A year into the contract, the foreign party fires the firm because the principal partner has mad cow disease.  Then what?  
  • Designated U.S. subsidiary:  imagine a similar scenario, but instead of firing its lawyers, the foreign party dissolves its subsidiary or moves it offshore.  Then what?
  • Designated U.S. presence:  perhaps the foreign party has a storefront location in Peoria, or a satellite office in Kansas City, and they designate that U.S. presence as their agent for service.  Maybe the storefront is destroyed by fire, or maybe the KC office can’t hold onto its staff because the labor market is so vibrant.  Then what?

Your best course of action might be an established agency in the capital of the state that you expect to be the locus of performance.  A simple Google search pulls up dozens of agents who can be hired for fifty bucks a year.  Prepay the agent for the life of the contract, et voilà.  When a dispute arises, you don’t have to pay me a thousand dollars (and pay a translator six thousand dollars!) just to get the defendant into court.

It’ll cost you $37.00 in courier fees to overnight the summons & complaint to an agency in Dover.

* I learned Torts from Nancy Levit.  It was my best grade that very first semester, which isn’t saying much, but I definitely learned a bunch from her.  The learning continued after I graduated, with two books she co-wrote with Doug Linder (my ConLaw professor, two semesters worth).  I highly recommend The Happy Lawyer and The Good Lawyer.  

REUTERS/Yuya Shino

Another tech titan is getting into linguistics services.  The same guys who’re jumping into the grocery biz to dethrone Walmart are launching a new foray into the machine translation (MT) game to dethrone Google Translate.  You guessed it: Amazon, according to a CNBC report earlier this summer, hopes to  take on the fellows in Mountain View with a tricked out version of the Safaba platform, which it acquired two years ago.

To which I offer a very loud and emphatic… big deal.  It still doesn’t mean MT is a good idea in legal pleadings.

[Fellow lawyers, bear with me.  We’ll get to you soon, I promise.]

I’m sure the Bezosians are totally stoked about their soon-to-be launched product offering.  If it’s like most of the other Amazon stuff I subscribe to (Prime, anyone?), it will be awfully handy.*  If Amazon’s translator works as well as everybody expects from a Jeff “Midas” Bezos creation, I’ll probably use it just as much as I use Google Translate– which is to say, quite a bit.  My usage, though, will be for finding specific words, a thesaurus of sorts, and French accent marks that I can’t remember how to “hot key”.  Often, I’ll use it to get the gist of something in a language I don’t speak, but never to gain a complete translation.

The language services industry is justifiably scared– I found out about the CNBC story because a friend of mine in the business posted a Slator follow-up article about it on LinkedIn (Slator is an online trade mag for linguists).   Translation providers ought to be frightened of MT for the same reason horse breeders feared Henry Ford’s assembly lines a century ago.  Ford (and other carmakers, of course) reduced the equine industry to a shell of its former self, and MT threatens the same in translation.

But remember what Ford said about the response if he asked his customers what they wanted:  a faster horse.  [Okay, maybe he never said that.  But the underlying idea is absolutely true.]  Ask language service customers what they want right now, and they’ll say “cheaper translation”.  But that’s where the analogy breaks down.  A Model T would still get you from point A to point B– just like your horse could– but without the feed and caring necessary to keep a horse alive even when you weren’t riding it.

Translation is a whole different kettle of fish, especially for attorneys, especially when they have to serve process in a different country.  Here’s why a cheaper translation is not like a faster horse– whether or not you need a stable and so many bushels of oats:

  1. As with any professional service offering, you get what you pay for in a “cheap translation.”  Recall that old litigator’s saw, “cheap, fast, and accurate… pick two” whenever a client demanded more for less.  That happens in translation, too, whether a human is involved or not.  That cheap horse might be really fast for about half a mile, at which point it keels over dead.
  2. Unquestionably, MT is a faster horse than human translation.  Exponentially faster.  And that necessarily makes it cheaper (no care & feeding).  But it doesn’t get you from A to B.  Remember your high school computer teacher’s acronym, “GIGO”?  Garbage in, garbage out.  If your machine doesn’t start with a comprehensive and very accurate vocabulary in both languages, you will get a garbage translation.  Good luck enforcing your U.S. judgment when a Japanese judge (who spent a year at Stanford in 1991-92) sees that you translated “meeting of the minds” incorrectly.  The machine doesn’t have the sense to stop and look something up (or to pick up the phone and call you to explain an arcane term of art).  It just runs home to Mama and uses the closest thing it can find– like the Japanese word for headbutting.
  3. While you could be confident that a conversation on horseback would be kept between men of an honorable character, a Model T allowed occupants to speak freely and candidly, because nobody could hear them over the engine as they whizzed by going 40.  You can likewise expect a translation provider of honorable character to keep tight-lipped about the pleadings you hand them (they’ll sign a NDA if you ask… and if they won’t, go elsewhere).  But if you use Google Translate or Amazon/Safaba or any number of other MT systems on the web, you may as well just post your pleadings on the firm’s website, because they just became part of the Borg Collective.

Now, to be sure, I won’t be able to say all of this in a few years.  AI (artificial intelligence) is growing by leaps and bounds– and I, for one, will heartily welcome our new robot overlords.  The day will come in the not-too-distant future when MT will come complete with editing and formatting and all of the time-intensive production that is now performed by human translators.

But you as a litigator must still make sure you aren’t just cheaping out.  That Japanese judge is a funny guy, but he’ll kick your enforcement action out of court faster than you can say Akebono.

* The shameless plug portion of our show… I’m a big fan of both Amazon and Google.  Really.  Alexa keeps me entertained with her patient-but-funny answers to my stupid questions, and Google is my cell phone provider (seriously, click here to sign up for Project Fi, and we’ll both score an Andrew Jackson for our trouble).  Amazon and Google get a big chunk of my business & household budgets every month.  Now if I can just convince one of them to build their second headquarters here in Kansas City.

Albert Jankowski, via Wikimedia Commons.

My practice area is a very tight niche, and explaining it to colleagues sometimes means getting into very tall weeds.  Odd conversations tend to follow my CLE lectures.  Or bar association happy hours.  Or tours of farwaway legislative chambers.

I’ll describe what I do, and the colleague I just met will express appreciation for what I illustrated, tell me it’s a really neat niche, and then try to convince herself (or himself) that our practice areas don’t overlap.

Oh, but they do, I promise you.  The banter usually goes something like this:

Sorry, Aaron.  I handle employment law, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  

Well, I appreciate that.  I’m glad you enjoyed it.  (Inside my head:  Funny how?  I’m a clown?  I amuse you?)

No, I mean I really like how you got that picture of Ned Stark into your slide deck!

Hang on a second…  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.  (She’s not kidding, sadly.*)

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

More importantly, though, what I do has direct bearing on your employment practice.  A huge impact, especially in a global economy where operations are directed from far-flung headquarters around the world.  Allow me to illustrate…

Let’s say your client, a gay Latino with a disability, works for a large retail chain that specializes in low-cost furniture and home products.**  Let’s also say that the employer provides a unique shopping experience and wonderfully tasty meatballs that are available to take home from a freezer located right next to a pallet of picture frames and window blinds.  Your client has been harassed for one reason or another, but his pleas to local supervisors and the company’s management team all the way up to the mothership have gone unanswered.  The abuse continues, and in the hope of vindicating the poor fellow’s rights, you take his case.

But who do you sue?  Well, the U.S. subsidiary that runs the store, of course.  The harassers & managers individually.  They’re pretty easy to identify as culprits.  Ah, but what of the off-shore mothership?  The one in Scandinavia, where the meatball was perfected?

Yes, you name the parent company as a defendant, too.  Just because they aren’t here doesn’t mean they aren’t part of the problem.  But now things get interesting, because you have to properly serve the parent company where it resides.  In this hypothetical, let’s “say” it’s headquartered in Sweden (wink wink, nudge nudge).

You’ll have to translate the service documents into Swedish (setting aside the fact that Swedes speak better English that I do).  You’ll have to fill out your USM-94 correctly (that’s a big one– very important, the USM-94).  And you’ll have to wait the three or four months it usually takes to get a proof of service back from Stockholm.  Odds are, you’ll get a call from opposing counsel to discuss settlement before you even receive the proof, but if you don’t even try to properly serve the mothership…

This is Ned Stark.

* 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.

** Disclaimer:  I love Ikea— especially those Swedish meatballs that are finally available in Kansas City.  I know of no situation in which a disabled gay Latino employee has been harassed at an Ikea store, and I imagine that a company born in Sweden would take a very dim view of such treatment of its employees.  Its inclusion here is for illustrative purposes only.

(Start running your geek flags up the pole, folks.)

Transnational Lawyer’s Log, Stardate 23866.2:

An interesting quandary was posed to me recently in an email.

“Aaron, my client was sued in a Klingon court, but was served without a translation into English.  The plaintiff sent the summons by interplanetary mail– and it was only sent in the Klingon language, lacking even a summary of the case in English.  My client is just a yeoman on the USS Intrepid– one of the guys in red shirts who have the sky-high casualty rate– and was involved in a rescue of the inhabitants of the Khitomer outpost attacked by the Romulans.  He doesn’t speak a word of Klingon (the poor kid doesn’t even like Gagh*).  Apparently, a couple of the rescued inhabitants were injured in the operation, so they sued him.  The Klingon court issued a default judgment, and the plaintiffs now seek to enforce the judgment in his home state of Michigan.  Opposing counsel says they didn’t need a translation to make it valid service unless they go through the Central Authority.  Help?”

Well, let’s first establish that Klingon signed onto the Hague Service Convention in the year 2322, twenty-five years before the Khitomer massacre.  They objected to Article 10, and stated a requirement that all Article 5 requests be transmitted along with a full translation into Klingon.**  Michigan has been part of the Convention– via the United States’ ratification– since 1969, well before stardates or the United Federation of Planets were a thing.

Anyway, the young yeoman has some plausible arguments…

  • Number one, I would attack the omission of a translation on a straight-up due process basis.  Technically, opposing counsel is correct in that a translation isn’t required by the U.S. declarations to the Convention– but those declarations also make clear that our courts may choose not to enforce judgments that arise from mailed service that isn’t accompanied by an English translation.
  • Number two, the Klingons don’t allow mail service on their own citizens– they object to Article 10 of the Hague Service Convention in its entirety– so service by mail isn’t valid in either direction.  The poor kid from Michigan can’t serve the Worf family by mail, so nobody from Klingon can do it the other way.
  • Number three (and this is the big one), remember the constitutional standard…   “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. ” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950).  Just because a decision is four hundred years old doesn’t mean we forget about it.  This thing still holds water, even in the 24th century.  And if a defendant doesn’t speak Klingon, the calculation isn’t even remotely reasonable.  It’s laughable.
 Now, I don’t want to go off on a rant here.  I tend to be a bit more Vulcan than my gruff exterior might indicate.  But this is just sloppy lawyering from the Klingon side.  Those guys ought to know better.

 

* Gagh really is more satisfying when eaten live.  It’s a bit disconcerting the first time, but still.  Tasty stuff.

** If you’ve never heard Shakespeare or Dickens in the original Klingon, you’re really missing out.

Image by “Hibino”, via Wikimedia Commons.*

An interesting opinion was handed down this morning in the Middle District of New York—not very earth-shattering, to be sure, but a solid illustration of where lawyers think they know what they’re doing, but really don’t.

A brief rundown of the facts:  the plaintiff is a high school student, Peter B. Parker, who alleged that during a class field trip to The Banner Collection, a prominent midtown museum, he was stung by a rare and poisonous insect in the museum’s animal research facility.  Named as defendants are the Collection’s owner (Crown), and its former Director of Operations, Dr. Diana T. Prince.

On the surface, a fairly straightforward personal injury claim.  Things got more complicated in light of Prince’s departure from New York shortly before the suit was filed, to accept a position as Curator of Antiquities at the new Wayne-Kent Institute in her native Athens.  Crown waived service (as it must under FRCP 4(d)), but Parker’s attorney served Prince at the museum in Greece via FedEx.

When Prince failed to appear, the court granted Parker’s motion for default judgment, and proceeded to trial against the museum.  A jury found that the museum was negligent in allowing a class of high schoolers into a research laboratory, but found that the plaintiff’s own negligence far outweighed that of the museum.

After the verdict, Prince read about the case in a trade magazine circulated to museum curators around the world, and hired counsel in New York to revisit the claim against her.  In their motion to set aside the default, Prince’s lawyers made several arguments, all of which I see as pretty solid.

  • First, Parker presented no proof of actual delivery to Prince herself—only a printout from FedEx indicating that the parcel sent by counsel was left in the Wayne-Kent Institute’s mail room.  Lacking any demonstration that she had received the notice, her attorneys argued, the service attempt should be quashed and the default judgment thrown out.
  • Second, Prince’s lawyers pointed to the FedEx dispatch itself as deficient.  FRCP 4(f)(2)(C)(ii) requires that, where a treaty allows but doesn’t specify a means of notice, service by mail is valid if the Clerk of Court addresses & sends the documents, with a signed delivery receipt required.  Parker’s counsel sent it directly from their office and provided no signature whatsoever.
  • Third, even if Parker had properly observed 4(f)(2)(C)(ii), Greece objects to service by mail under the Hague Service Convention, so the method has no legal effect in the first place.
  • Fourth—and this is the one that really gets me, because it’s just sloppy, lazy lawyering at work—although Prince was the Curator of an Athens-based museum, her office and domicile were in Israel, and no attempt was made to locate and serve her there.  At all.  (In an ironic twist for Parker, Israel doesn’t object to mail service under the Convention!)
Dr. Prince at a press conference in Tel Aviv, announcing her appointment as Wayne-Kent’s Curator of Antiquities.

In the end, the judge set aside the default based solely on Dr. Prince’s first argument, but admonished plaintiff’s counsel in light of the legal deficiencies laid out in the other three… and assessed Prince’s costs to them.  Of course, they could take another bite at the apple, but Prince would still have a couple of fancy Latin terms at her disposal: res judicata, respondeat superior…

Again, this all comes down to very sloppy lawyering by plaintiff’s counsel.  Truly, a simple Google search would have told them that, while the defendant was born in Greece, she is an Israeli citizen– she even served two years in the IDF.  Had they exercised even a modicum of diligence, they could have served her properly.

Moreover, this case illustrates the importance of client-vetting.  These attorneys should have known that their plaintiff, although an orphan, was little more than a whiny kid who didn’t just mitigate his damages– he made a fortune off of them.  Media appearances alone have made him millions in the few years since the injury; perhaps Crown has a cause of action against him for unjust enrichment?

* The image above is actually the Museum of Modern Art in New York, which Crown’s owner purchased in 1998 and renamed for an old friend, Dr. Bruce Banner.  The facility expanded beyond art and into natural history research shortly thereafter.

 

Perhaps it looks a bit too much like The Eye of Sauron to take seriously?  I took this during the total eclipse.  With my phone, if you can believe it.

Like many of our fellow humans, my wife and I took a few hours away from our respective offices yesterday to watch something that hasn’t happened in Kansas City since before the first intrepid Frenchmen paddled up the Mighty Mo seeking beaver pelts.  Just after noon CDT, we donned some funny cardboard glasses and watched a total solar eclipse for about 45 seconds.  This sort of event has been monumental in history, cajoling warring factions to the peace table, and offering a backdrop for great literature.  And we had an absolute ball.  I really didn’t think it would have an emotional impact on me, but it did.  As the sky darkened, the temperature tanked, crickets began chirping as if it were dusk, and the streetlights came on.*

Our soundtrack was a whole lot of fun, too…

Now enter The Honorable Steven D. Merryday of the Middle District of Florida, who took my Carly Simon reference to completely new heights with a tongue-in-cheek order regarding a government motion for continuance.  The AUSA’s offered grounds?  The key FBI agent had already bought plane tickets to Charleston (or Nashville or Kansas City or Portland) to see the eclipse in its full glory.

Now, as I started to read the thing, I thought to myself “outstanding– a judge who recognizes the monumental events here.”  But a few para’s into it, I caught on to his logic.  By the end, it was pretty apparent that somebody in the Justice Department played fast & loose with the facts.  Motion denied.

I have to think that if they hadn’t just pulled assertions out of a hat, His Honor might have granted the motion.  Who knows?  (Read the order on Scribd here.)

So what does this have to do with Hague service?  Not a thing.  Unless you recognize that pulling assertions out of a hat is dangerous in the law.  Sooner or later the judge is going to get wise to your antics and smack you.

Examples of such antics:

Far better to do it right the first time and not become the subject of listserv discussions** across a wide swath of the country.

* Thanks to my good friend and law school classmate Carl Scarborough (and his wife, Doreen) for letting us camp out in the zone of totality.

** And a hat tip to my colleague David Ransin for bringing the M.D. Fla. order to my attention on the Solo & Small Firm Listserv of the Missouri Bar.

Federal Reserve image.

My practice area is a pretty goofy little niche, and explaining it to colleagues gets me into the occasional comedy of errors.  Really, odd conversations tend to follow my CLE lectures.

Or bar association happy hours.

Or tours of farwaway legislative chambers.

It happens all the time.  I’ll mention what I do, and the colleague I just met will express appreciation for what I described, tell me it’s a really neat niche, and then try to convince himself (or herself) that our practice areas don’t overlap.

I’m here to tell you that, yes, they do.  The banter usually goes something like this:

Sorry, Aaron.  I handle creditors’ rights, not immigration.  But thanks for doing that CLE.  You’re a funny guy.  

Well, I appreciate that, Stewie.  I’m glad you enjoyed it.  (But inside:  Funny how?  I’m a clown?  I amuse you?)

No, I mean I really like how you got that picture of Ned Stark into your slide deck!

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.*)

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

More importantly, though, what I do has direct bearing on your debt collection practice.  A huge impact, especially in places where lots of foreign citizens borrow from local and national lenders.  Allow me to illustrate…

Let’s say your client is a bank or a mortgage outfit.  Let’s also say they’re in Branson, Missouri (or pick just about any in-demand resort area, whether in the Ozarks or out on the coast).  They specialize in lending to folks who want a vacation property on a picturesque waterfront.  The bank loans a huge chunk of money to a Ukrainian fellow who just can’t get enough of the Baldknobbers (it’s a thing in southwest Missouri… just trust me) and the comedic stylings of Yakov Smirnoff.  It seems this guy’s wife fell in love with a beautiful six bedroom cabin on Table Rock Lake, so they cashed in a few savings bonds and bought the place.

Thirteen months into the mortgage, Mrs. Ukrainian Lady decides that Kiev is more to her liking than Branson, so the couple hightails it east toward their homeland.  They stop making mortgage payments, and a year later, your client wants to cut its losses.  What do you do?

Well, the first thing you have to do is get a foreclosure suit filed (this illustration really could be any kind of collection action, but if I can promote tourism in my state with some down-home flavor, all the better).  All Missouri counties now have e-filing, so that’s not a tough undertaking.

Next, you get the court to issue a summons to the borrower.  The clerk is happy to e-mail you the thing via CaseNet.

And now things get interesting.  Service of process, you say?

Sure, it’s an in rem action, but you can’t just nail the summons to the front door of the cabin and say you’ve served process.  You also can’t serve by publication until you’ve made a reasonable effort to serve personally.  Your defendant has gone back to Ukraine, and you have to at least try to serve him there, because your client didn’t think to have him designate an agent for service in the mortgage agreement.  You find out that Ukraine is party to the Hague Service Convention, which is mandatory doctrine if you’re serving a defendant in a country that’s signed onto it.  Ukraine objects to service by mail, so that option’s off the table, and your only remaining choice is a request to Ukraine’s Hague Central Authority.

Fortunately, the Ukrainians are pretty liberal about the language issue, so you may not have to shell out a thousand bucks for a translation.  And they get the job done when you ask nicely (unlike their Russian counterparts).  But you still have to fill out your USM-94 correctly.  That’s a big one.  Very important, the USM-94.

Then you sit and wait, while your client sits on a mortgage they can’t foreclose for at least six more months.  And if you don’t even try to get him served, you’ll have a tough time getting the judge to proceed without that indispensable defendant.

This is Ned Stark.

 

* 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.

Poor fellow got stabbed right when things were getting interesting. Coke Smyth, Folger Shakespeare Library Digital Image Collection.

Before he was Bilbo Baggins, Sir Ian Holm brought Polonius to life in Mel Gibson’s 1990 screen adaptation of Hamlet (long before Mel went stone cold nuts, but that’s a different story).  For the uninitiated, Polonius was a loyal advisor to the slain king, very much like a second father to Hamlet the Prince.  Who killed him.

Polonius is my favorite character in the Pantheon of Shakespeare’s personalities– if for no other reason, because of this line:

Therefore, since brevity is the soul of wit,
And tediousness the limbs and outward flourishes,
I will be brief: your noble son is mad:
Mad call I it; for, to define true madness,
What is’t but to be nothing else but mad?
But let that go.

Brevity is the soul of wit.

My wit often forgets its soul, and I become tedious, much like my other favorite Shakesman, the constable Dogberry from Much Ado About Nothing.*  I am a lawyer, and I fall victim to the Lawyer’s Curse: that we think we’re getting paid by the word.  More words, more money.  Yay, lawyers.

Except, no.  Although we’re not trying to be witty, we don’t get paid by the word.  We get paid by the hour, and even that seems somehow perverse in a profession that prides itself on the best interest of the client.  Translators, on the other hand, do get paid by the word.  So when Germany’s declarations to the Hague Service Convention mandate translation of all documents to be served, it becomes pretty important for plaintiff’s counsel to keep things short, sweet, and to the point.

This is particularly difficult in patent infringement cases, although I have a theory I’d love to see tested.**  Nevertheless, it really is critical to keep the pleadings brief, even in fact-pleading jurisdictions.  Nearly all of our major trading partners require translation of service documents into their own language (the Netherlands and Israel being notable exceptions).

This above all: to thine own client be true.  

Remember that you don’t get paid by the word, but translators do.

Draft accordingly.

*  I still can’t decide whether I enjoyed Michael Keaton‘s or Nathan Fillion‘s Dogberry more.

** Patents are a matter of public record, and they’re accessible at the PTO’s website.  So why must they be attached to a complaint as exhibits rather than incorporated by reference?  I honestly don’t know the answer to that question, and I welcome feedback in the comments below.  Notice pleading (see FRCP 8(a)(2)) requires a short and plain statement of the claim.  Four hundred pages of dense patent language tends to violate that idea.  And those four hundred pages are incredibly costly to translate into Swedish.  Consequently, I argue that they ought to be left out, in order to avoid unnecessary costs.  (I may be wrong, and don’t mind being told so.)

DoD photo (thus, public domain). Via Wikimedia Commons.
DoD photo (thus, public domain). Via Wikimedia Commons.

Litigation is civilized combat.

That’s not my original thought, but forgive the lack of appropriate credit.  I don’t recall where I first heard it.

Sure, it’s an oft-criticized concept– thinking of litigators as warriors, hired guns, Viking marauders, etc.  But it offers perspective on how to approach a dispute once diplomacy and negotiation break down.  In this particular analogy, I offer a sport that has intrigued me for years, although I’ve never gotten into it: fencing.

Think of a lawsuit as a fencing bout.*  A thrust is an offensive move—literally trying to strike your opponent with your blade.  A parry is defensive in nature—either a block to the thrust, or a simple change in position—rendering the thrust ineffective– and when followed by a riposte, turns around on the aggressor.  In a suit, service of process is the opening thrust, and if it’s done incorrectly, it is easily parried away, and can be turned into a fatal riposte (dismissal!).

Last month, Nathan Park’s Asia in U.S. Courts blog (which I highly recommend if you’re at all interested in the Far East and its interplay with the U.S. judiciary) highlighted a parry that went wrong for the plaintiff—in a completely preventable way.  She alleged that a piece of medical equipment had injured her, and sued the manufacturer in California.  The defendant is Japanese, but has a subsidiary in Illinois.  With me so far?

Counsel served the Japanese parent by delivering the documents to the Illinois sub.

Sorry, ma’am– not valid, said the court.  The subsidiary wasn’t sufficiently shown to be an agent of the parent company.

Now, Illinois has a statute that allows precisely that sort of service, but the statute only applies to Illinois state court actions.  This statute was at the heart of Volkswagenwerk Aktiengesellschaft v. Schlunk, the seminal, end-all-be-all, Great White Whale opinion in Hague Service Convention matters,** which held that the Convention was mandatory where it applied, but because the defendant (Volkswagen) could be served in Illinois, the Convention was inapplicable.

It seems that, perhaps somebody misread Schlunk and thought “hey, let’s tag the Illinois sub based on that opinion.”  That the California court based its ruling on other grounds doesn’t validate the way the plaintiff tried to serve.

To their credit, counsel also undertook a belt-and-suspenders tactic: directly notifying the Japanese defendant by FedEx.  But they didn’t follow 4(f)(2)(C)(ii), and subsequently insisted that it wasn’t service, but merely delivery of a courtesy copy.  When the judge rejected the Illinois method, they did pursue the proper mail procedure.

But again… not so fast.  That doesn’t necessarily suffice– and it could be disastrous if the plaintiff has to enforce a judgment overseas.

For starters, serving abroad by mail presents significant factual challenges:  it’s hard to prove.  It’s also hard to demonstrate that it made it upstairs to the defendant’s actual office, even though FedEx or the Post Office might get the thing to an office building’s mailroom.  Beyond that, although the legality of the method is solid in federal court here in the U.S., it’s questionable in Japan.

Article 10(a) of the Convention offers “postal channels” as a viable option, provided the destination state does not object.  Canada, the UK, the US… we don’t object.  Germany, China, Switzerland, Mexico… they all do.

The Japanese, though, are stereotypically measured in their position.

“Japan has not declared that it objects to the sending of judicial documents, by postal channels, directly to addressees in Japan. As the representative of Japan made clear at the Special Commission of April 1989 on the practical operation of the Service and Evidence Conventions, Japan does not consider that the use of postal channels for sending judicial documents to persons in Japan constitutes an infringement of its sovereign power.”

“Nevertheless, as the representative also indicated, the absence of a formal objection does not imply that the sending of judicial documents by postal channels to addressees in Japan is always considered valid service in Japan. In fact, sending documents by such a method would not be deemed valid service in Japan in circumstances where the rights of the addressee were not respected.”

Um… huh?  They don’t object because it doesn’t infringe on their sovereignty (service of process is a sovereign function), but it might be a violation of the defendant’s rights under local law, which means the law triggers an objection?  (Which might put it in conflict with 4(f)(2)(C)!)

In other words, different from yes?

Several years ago, I was told by a friend who was studying Japanese that the language lacks a direct translation for “NO”.  They say “different from yes” as a means of not offending the listener.  And that’s what we have here.  Out of fear of offending a foreign partner, the Japanese statement on 10(a) creates a really murky situation.  Combine that with the fact challenges of mail service, and only one motivation can possibly justify using mail to Japan:  saving a few bucks.  It can’t be called a valid method of service with sufficient certainty.

The best course is, without question, a request to the Japanese Central Authority pursuant to Article 5.  They don’t take that long, and– if you’re judicious in your drafting (ie: brief)– they don’t cost much to undertake.

Back to the fencing match.  Service of process is the very first thrust a plaintiff brings to the arena.  Mail service is a pretty weak way to lead off the bout.  And there’s not a lot of justification for it when the primary method is so straightforward.

* A fencing match is called a bout.  I had to look that up.  Cool wiki on fencing terminology here.  Thrust is replaced by the more specific lunge.  Still, fun to learn new stuff.

** Although the rule laid down by the Supremes (unanimously) didn’t apply to that particular case, this was back when the Court had a little forethought and decided to fashion a rule in an opinion even though it might not apply to the case at bar.  If only they’d done so in Water Splash.

The Summer Palace and Kunming Lake, Beijing. Daniel Case via Wikimedia Commons.

News broke on Monday that a White House statement issued during the G-20 summit referred to Xi Jinping as President of the Republic of China.

Oops.

Mr. Xi is the leader of the People’s Republic of China (PRC), the communist mainland, as distinguished from the Republic of China (ROC) government.  That regime fled the mainland in 1949 to the island of Formosa– more commonly known as Taiwan– and remained the Chinese government recognized* by most of the world until 1971.  [To be sure, the State Department apologized for the gaffe… once the Chinese piped up and said, “um, did you guys ever take a history class?”  Perhaps this is why it’s not such a bad thing to have “professional politicians” in Washington.]

This is an elementary mistake that just shouldn’t happen at the highest levels of government.  It also shouldn’t happen in legal proceedings, but occasionally, such errors slip through, and they can be fatal to requests for service of process sent to foreign jurisdictions.  Three names to watch for– all China-centered:

  1. CHINA, PEOPLE’S REPUBLIC OF.  Again, the PRC is not to be confused with the older regime (the Kuomintang) which ruled China until Mao’s Communist Revolution.  This one is the mother ship, Big Red, the 1.3 billion people who make most of the stuff you buy at K-Mart.**  They not only have four times our population, but they also have nukes and a permanent seat (with veto) on the UN Security Council.  Safest bet– just call it China.  Full stop.
  2. CHINA, REPUBLIC OF.  This is not the mother ship.  And if you ask one of its residents, they’ll tell you that they’re still Chinese, but they haven’t been able to bring down the usurpers who’ve been running the mainland for nearly 70 years.  The ROC had the Chinese seat at the UN until 1971, when the UN accepted the reality that was the PRC.  To be safe in court documents, just call the ROC simply Taiwan and leave it at that.  Don’t elaborate and don’t get into the republican weeds in your pleadings, because it will only cause problems.
  3. HONG KONG, SPECIAL ADMINISTRATIVE REGION (SAR).  A British colony for a century, Hong Kong today maintains its common law legal system even though it became part of the PRC two decades ago.  If several sovereign states are named (China, Japan, the United States, even Missouri) or referred to in the pleadings, then Hong Kong must be modified to reflect its status.  Call it either “Hong Kong, China” or “Hong Kong, SAR” in order to differentiate it from sovereigns (which it’s not).

To Americans, this stuff doesn’t seem like a big deal.  To the Chinese– a culture that views “saving face” as an essential part of human existence– it’s downright critical.  If you’re going to play in their sandbox, you’re advised to adhere to their rules.  If you want them to serve process for you, or if you want to compel evidence, or if you hold out hope that they’ll ever enforce your judgment, you’re advised to pay close attention to nomenclature.

* Recognition is a very tenuous subject– so much so that the U.S. no longer formally recognizes any other country outright. We may send ambassadors, and the status of diplomatic relations may ebb & flow, but Rex Tillerson won’t step up to a lectern to say “the United States recognizes Country XYZ.”

** A little homage to a once-great company.  I spent two summers working there in college and enjoyed it thoroughly.