We regularly encounter lawyers who cringe at the thought that the biggest expense involved in service of process abroad is often translation.  Their misconception is either that language is no big deal, or that translators are a dime a dozen.  Neither is true, but sticker shock can still be… well, shocking.  So how do you avoid it?

Easy.  Just pick an English-speaking defendant in an English-speaking country.  Or at the very least, pick a country like Israel or the Netherlands, where most everybody speaks English anyway so they don’t specifically require translation under the Hague Service Convention.

Otherwise, yes, counsel, you do have to translate that thing.  But the mere requirement to translate does not mean you can’t keep your costs down.  Here are a few tips to reduce the price tag:

  1. Keep brevity in mind.  Yes, this is difficult for lawyers.  We’re the most verbose race of people on the planet.  But remember that federal notice pleading gives you a great cost-cutting device.  A “short and plain statement of the claim” is all you need.  In state court, the pleading form varies, but there’s not a jurisdiction anywhere that actually wants longer pleadings.  The court just wants them to be complete, so even in a fact pleading state, don’t write as if you’re being paid by the word.  Just imagine you’re a 1L again, and your legal writing professor is barking at you to keep it under 1,000.
  2. Avoid exhibits where possible.  If you can simply reference an ancillary document, then just reference the thing.  Don’t include it as an attachment or exhibit.  Exhibits sometimes comprise 90% of a translation bill—often unnecessarily.  [Consult local rules, of course.]
  3. Ask your translation provider for a volume discount if you have a huge sheaf of documents (roughly 30,000 words or more).  Much of the provider’s cost lies in the set-up of the project—the administrative burden is the same whether you’re worth six hundred dollars or six thousand—so a lower price-per-word is warranted with bigger projects.
  4. And shop around—translation is a hyper-competitive field, much like law.  But be wary.  Just as with lawyers, a low translation price tag does not usually correlate with quality, and you often get what you pay for.  Ensure that the translation provider has at least some quality assurance process.  The project should go through at least two people’s hands (the translator and an editor), preferably three (including a proofreader).

Above all, don’t cheap out—and don’t let your client cheap out either—because it will come back to haunt you.

  • Bad idea:  “Hey, Maria’s parents are Mexican—she can translate the docs into Spanish for us.”
  • Worse idea:  “Rob in accounting spent a year riding his motorcycle across China after college.  Let’s have him do it.”
  • Worst idea:  “Google Translate.”

Never mind the fact that Maria is a fully qualified attorney whose time would be wasted on a translation project.  Never mind that Rob in accounting is a math guy precisely because his verbal skills are horrible.  Neither of them is a qualified translator, so get a pro to do it.

As for Google Translate…
Can't

[A new platform called Google Advocate (“Advocate” is a verb there) should roll out any day now.  It will draft any legal document at the click of a mouse, for free.  It may inadvertently convey your house to your college roommate, but hey, it’s free.  What could possibly go wrong?]


A related caution:  your translation provider may suggest that you hire an outside agency to handle the Hague Service Request on your behalf.  While this is great advice, be wary here, too.  The translator may recommend an agency that is not qualified to undertake Hague requests.  In short, if that agency doesn’t have an attorney on staff to sign your USM-94, do not use them.  If you accept their assertion that it’s not a problem, you’re accepting a legal conclusion from a non-attorney (see here for a bit more detail).

[Originally published at vikinglaw.us]

Good old 12(b)(6).  The Rolling Stones Rule.  Failure to state a claim for which relief can be granted (I can’t get no Satisfaction).

Pop-Art_-Mick_Jagger-_Öl_+_Acryl_auf_Leinwand_von_Silvia_Klippert

It’s the defense litigator’s go-to basis for dismissal.  Graceful, poignant, utterly classic.

Sure, the plaintiff was harmed.  Sure, the defendant caused it.  But there’s no law that says he’s liable for any wrongdoing.  Kick it, your honor.

When you get a 12(b)(6) dismissal, you’re a rock star.  You’re Mick Jagger.  Your client thinks you’re a genius and sends you a fruit basket with a bottle of Johnny Walker Blue and a $10,000 bonus check.  (That might be a stretch.)

But when a defendant is in another country, 12(b)(6)’s lesser known neighbors are more helpful.  And they should give pause to plaintiffs’ lawyers who don’t know what they’re doing.

Let’s say you’re in Germany.  You’re an engineer at German-Cars-R-Us, and your company was involved in some pretty nasty stuff—lying to regulators, lying to customers, lying to shareholders.  The story goes viral, and some guy in Kansas City who bought one of your cars six months ago now wants to sue you.  Individually.  Even though you didn’t have any involvement in the fraud, they’re throwing the book at everybody whose name was on a personnel list.

FedEx drops a packet on your desk (Hier unterschreiben, kumpel… sign here, pal).  The guy in the next cubicle speaks English and, mercifully, he translates page one for you.  Holy socks… it’s a summons to appear in a federal lawsuit in the Western District of Missouri.  They filed the thing a few weeks ago, and now you have 21 days to answer!

You find a lawyer in Kansas City (danke, Das Google) who gets to work on the case right away.  Fortunately, he speaks a little German, so you’re confident.  You send him twenty grand, and he files an answer to the complaint.  He litigates it, and you win.  But you’re out twenty grand.

Had he known about the law governing service of process abroad, he would have seen the simplest way to make the claim go away, and for a whole lot less than $20,000.

What would I have done?  I would have done nothing until the 91st day after the complaint was filed.  Then, I would have moved for dismissal under Rules 12(b)(4), 12(b)(5), and 4(m).

Why 12(b)(4)?  Because you don’t speak English.  It is rather difficult to understand a summons in English if you only speak German—and the plaintiff didn’t send a translation.  Your due process rights were ignored, so the process was insufficient.

Why 12(b)(5)?  Because the plaintiff’s lawyer completely ignored the Hague Service ConventionMail service (including FedEx) is ineffective in Germany, so service was insufficient.  For that matter, it’s ineffective in any Hague country if the case is being heard in the 8th Circuit.

Why 4(m)?  Because a plaintiff has 90 days to serve, or the claim has to be dismissed.  Now, that deadline doesn’t apply to service outside the United States, but the safety valve doesn’t give a plaintiff unlimited time—a reasonable diligence standard still applies.  If the plaintiff doesn’t even attempt proper service within the first 90 days, he’s out.

Bottom line—the plaintiff’s attorney was not only dilatory,* he also did it wrong.  So wrong, in fact, that the case against you should have been dismissed sua sponte.  Both sides have a malpractice claim against their lawyers, who should have come to one of my CLEs.

They could’ve been rock stars.

 


*Dilatory: unnecessarily pokey.  (I had to look it up, too.)

Image:  Pop-Art “Mick Jagger” by Silvia Klippert, via Wikimedia Commons (free license granted by the artist).