Process Serving is a Verb

What I am about to say is something you already knew, but it is presented in a different way for your consideration.

“Process serving” is the procedure employed to give legal notice to a party (such as a defendant) of a court or administrative body's exercise of its jurisdiction over that party so as to enable that party to respond to the proceeding before the court.  “Verb” is derived from the Latin verbum meaning word that  conveys an action (bring, read, walk, run, learn, serve).  Most people understand both. So, why even raise the point that process serving is a verb?

A verb is usually something you DO – not something you think about or intend to do.  Process serving is an act that results in the legal documents actually being delivered to the appropriate party.  That requires action on the part of the process server.

Some process servers procrastinate about the task of completing a service of process.  That results in slow service and can jeopardize a case if deadlines are not met. The process server may cause liability to themselves and their client by delaying the attempts at service.

Here are 3 reasons process servers fail to meet the expectations of their clients:

1.       They do not have a strategy to get their assignments completed.  Too many people in business (and yes, process serving is a business) confuse operations with strategy.  Operational excellence is focused on doing the same things your competitors are doing – only better.  Strategy, on the other hand, is focused on being different than competitors. Process servers who understand the difference and take the steps to ensure that their strategies and operations are in alignment become the leaders in their profession.

2.       They are unwilling to say “no”. Since most process servers have not figured out what makes their business different from the others, they do not know when to say “no” and what to say “no” to. They seek to take in every possible assignment without regard to whether they can complete it correctly, timely, and profitably.  In other words, the money outweighs the ability to get the job done in certain cases.  If they do not have the resources to complete the assignment properly, they will likely have a disgruntled client in the end.

3.       Failure to align daily activities with strategy.   A clear and different strategy means performing different activities. For  example, if you normally spend 3 hours per day reading email, answering personal Facebook notes, and reading the sports page, you may be locked into a pattern that will soon leave you behind your competitors. If, on the other hand, you have a clear strategy of what you wish to accomplish and achieve, you will be forced to alter your activities to be in harmony with your strategy.

Process serving is a vital function of the legal system.  Those who excel are those with a strategy and purpose that is in alignment with the activities that they perform on a daily basis. Process serving is a verb because it requires action combined with a strategic intent.

Nelson Tucker is CEO of ProcessService Network, LLC in the Los Angeles area where his firm has provided legal support services since 1978.  He has authored 3 books on service of process and has personally trained over 1700 process servers and investigators nationwide.  Nelson may be reached by email at processnet@sbcglobal.net or by visiting his website at www.processnet1.com.  He is active with the American Bar Association, Los Angeles County Bar Association, Beverly Hills Bar Association, and the San Fernando Valley Bar Association.

How U.S. Military Presence in the Middle East Affects Civil Process Service

Yes, that is quite an unusual topic and it has some interesting connections. Please allow me to explain.

I had the pleasure to discuss Middle East issues in a candid meeting with General James Mattis, Commander of the U.S. Central Command. Gen. Mattis took responsibility for this crucial assignment from General David Petraeus in August 2010.

After hearing from the General, I applied some of his messaging to current situations in nations where service of process is challenging, at times, and extremely difficult on a regular basis. It should be pointed out that his focus was on military, political and economic topics and not on civil litigation issues.

Here is his summary of the current situation in specific countries along with my appraisal of the result upon cross-border civil litigation:

• Egypt: “The government is in disarray and could go either way.” If Sharia law is imposed, the legal system could be dramatically altered and cooperation between Egyptian courts and other signatories to the Hague Service Convention could be jeopardized.
  
• Syria: “If Assad goes, it will be the biggest hit to Iran.” With looming sanctions against Syria pending by Europe and the U.S., judicial cooperation in civil matters may be stalled.
  
• Iran: “Iran's fingerprints are everywhere. They now financially support states who they view as enemies against the West.” Service of process, in Iran, is not an authorized function by the government since they view foreign litigation as an infringement upon their sovereignty.
  
• Lebanon: “There are close ties to Iran.” Lebanon currently cooperates in civil legal matters from outside the country. However, that could change if Lebanon adopts a total conversion to Sharia law.
  
• Iraq: “If the military becomes Iranian-backed after our departure, that will create the most dangerous force.” Currently, service of process is handled by civilians without government participation. If the government falters after Allied troops leave, so will the ability to serve legal process

General Mattis made a formal presentation to the Los Angeles World Affairs Council in which he stated four major objectives in U.S. military policy in the region:

1. Support each country’s reform efforts and allow them to move at their own pace;
2. Support economic reform;
3. Support renewed political peace;
4. Support regulated security in combatting terrorism.
   

I was extremely impressed with General Mattis’ candor and his insight into the military, political and economic situations in each country in the Middle East. His expertise and insight have greatly benefited in the fight against terrorism.

Nelson Tucker is CEO of Process Service Network, LLC that specializes in international service of process. He can be contacted at processnet@sbcglobal.net or through the firm’s website at www.processnet1.com

The Ultimate Dilemma: Obtaining Jurisdiction Over a Foreign Defendant

Making the right decision about how to obtain jurisdiction over a foreign defendant can be a daunting challenge. There are so many issues to be confronted including available service of process methods, laws of the foreign country where the defendant resides, satisfying local court requirements, and post-judgment collection. Even though the challenge may seem overwhelming, the process can be simplified by hiring a competent international service of process professional.

Step one is to determine the final end result of the case, i.e. do you intend to attach assets of the defendant in the foreign nation? The answer to that question will determine the method used to obtain jurisdiction. For example, if the defendant is the only known party in the case, it will be necessary to utilize service of process methods which will result in an enforceable judgment. On the other hand, if the defendant is merely being served in order to satisfy court rules that all defendants must be served - and it is not anticipated that this defendant has attachable assets – more options are available in order to obtain jurisdiction.

Most law schools offer very limited, if any, instruction in international service of process. After all, such services were a rarity until recently. And, most attorneys have not had experience in dealing with foreign defendants, thus, may see the process as overwhelming. In contrast, once an attorney has gone through the experience of serving a defendant in a cross-border dispute, the task seems surprisingly simple.

Methods of Service Abroad
There are two basic methods available for service of process upon foreign defendants: 1) formal, and 2) informal. The formal method involves a treaty or use of Letters Rogatory (a request from the local court for judicial assistance by the foreign court) while the informal method utilizes the services of a private process server. There are advantages and disadvantages of both methods, including cost, time frames for completion, and eventual enforceability of the judgment.

Formal Methods of Service
Formal service is accomplished pursuant to the terms of a specific treaty, such as The Hague Service Convention or the Inter-American Convention on Letters Rogatory. The Hague Service Convention (“Hague”) currently has 62 signatory nations while the Inter-American Convention has 19 member nations. The United States is a signatory to both Conventions. The procedures for each treaty are vastly different and seemingly difficult. In reality, both are quite easy to maneuver through once the process is fully understood.

The Hague Service Convention allows for service of process in cross-border disputes, including personal injury, trademark and patent infringement, products liability, family law, collections, and real estate matters. The procedures are specified in the treaty but the practical application of the terms requires advanced knowledge about specific prerequisites of the country where the service will take place, including reservations at the time of the signing of the treaty, laws of the foreign nation, and fluctuating changes in policies of the destination country.

“Hague” service is made by submitting the service documents, along with the proper official request and copies in English as well as copies properly translated into the official language of the country where the documents are to be served. Typically, there are no governmental fees associated with such service; however, a few nations require payment of a “bailiff’s fee (1).

[“It’s amazing how each country has such a vast difference of laws that must be
followed. U.S. attorneys are often frustrated by the myriad of requirements that
some countries impose….“]

According to Scott Spooner, International Specialist with Process Service Network in the Los Angeles area, “It’s amazing how each country has such a vast difference of laws that must be followed. U.S. attorneys are often frustrated by the myriad of requirements that some countries impose on services coming from outside their jurisdiction.”

Spooner pointed out Mexico as a prime example of a nation whose legal system has gone beyond reason and common sense in imposing unnecessary requirements for service (2). “Mexico attempts to protect its corporations and citizens from legal matters that may eventually result in attachment of assets. They do everything possible to delay service of process in hopes that the case will just go away.”

However, Mexico is a signatory to the Hague Service Convention and in doing so agreed to follow the terms of the treaty. They are also a signer of the Inter-American Convention on Letters Rogatory which is a separate treaty. They cleverly combined the requirements of both treaties, thus making service there more difficult for foreign attorneys.

The form used to transmit service of process pursuant to the Hague Service Convention is the Request for Service Abroad of Judicial and Extrajudicial Documents. While the form seems simple and easy to complete, many signatory nations have specific wording and formatting requirements which are not covered in the treaty. The result of an incorrectly filled out request is rejection of the service, by the Central Authority of the foreign nation, often several months after submission.

Service in most nations which are Hague signatories typically takes two to four months, although sometimes faster (3). Seasonal weather issues may delay the service time in certain colder regions. The major delays are caused by governmental and court bureaucracies, local customs and work habits in some areas, and transmittal of the proof of service via postal channels after service has been accomplished.

Service made pursuant to the Hague Service Convention and Letters Rogatory will result in an enforceable judgment in nations which honor post-judgment collections.

Letters Rogatory is a formal process in which the court of jurisdiction makes an official request to the court where the documents are to be served asking for judicial assistance in the service of such documents. The use of Letters Rogatory is largely confined to courts in the Americas since most countries in Asia, Europe and North America utilize the provisions of the Hague Service Convention. Letters Rogatory are also used to obtain evidence outside the nation of jurisdiction (4).

It must be pointed out that service utilizing Letters Rogatory is a cumbersome and time consuming process with delays of up to one year, and sometimes more, due to the diplomatic channels through which the service must flow.

For example, in the United States the court of jurisdiction issues the official request using a pre-designed format. It is then submitted, along with pleadings in English and the language of the destination country, to the U.S. Department of State. Such service must be accompanied by a cashier’s check of $2,275.00 which is referred to as an Embassy fee. The documents are processed at the State Department for approximately two to three months. The delay is caused by the backlog of cases which require Letters Rogatory. They are then sent through diplomatic channels to the U.S. Embassy of the foreign country and eventually delivered to the Central Authority of that nation. They, in turn, assign it to an appropriate local court that arranges for service of the documents upon the defendant. Once the documents are served, the government official who served it, typically called a bailiff, returns the proof of service to the local court and the documents go back in reverse order through the same channels. The proof of service does not, however, get returned to the requesting attorney as is the case with Hague service, but instead, is forwarded directly to the court of jurisdiction.

Unfortunately, in all formal methods of service there is no adequate manner of tracking the status of the service. That is due to the isolation of foreign courts and Central Authorities from private sector law firms. Further, the court filing procedures in many foreign nations does not allow for easy tracking since they often do not use numeric filing systems; some operate on a “first-received, first-completed” system while others file by date of receipt or by case name.

The advantage of utilizing formal methods is the ability to obtain an enforceable judgment. An unenforceable judgment against one defendant does not negate the validity of a judgment against another defendant; it is common to serve some defendants using treaty provisions and others by utilizing informal methods. The disadvantages of formal methods are time delays and costs.

Informal Methods of Service
The most common form of informal service of process is by private process server. Any person who is authorized by the laws of the nation where the documents are to be served may serve legal process, including process servers, investigators, or government officials, such as a Sheriff or Bailiff. In some countries, service by an outside private process server is allowed since many nations do not have process servers and it becomes necessary to use one from a neighboring country.

Countries such as Germany, Japan, Argentina, China, Switzerland and others prohibit service by private party. It is considered to be an infringement of their national sovereignty to use service of process methods which are not prescribed treaty or national law. Such nations as Japan and Germany actively prosecute, both criminally and civilly, such violations.

[“Service by private process servers normally results in a timelier
completion of service than using formal methods.”]

The advantage of using informal methods is the speed of the completion time, although not as fast as service typically takes within the United States. While the service itself may take only a few days or weeks to complete, the return of the proof of service often takes more than a month. A common delay is caused by the lack of notary publics in some regions who are needed to authenticate a proof of service. Relaxed work habits and cultural practices also may lead to delays in a successful completion of the assignment. Weather can also be a factor in certain regions where travel is impaired by snow, flooding or other natural disasters.

Further delays, in some regions, are caused by the necessity for the process server to obtain “permission” to serve legal documents that originate outside their country by paying “fees” to local law enforcement officials (5).

The only disadvantage to utilizing informal methods is the possibility of an unenforceable judgment and the unreliability of private process servers in certain remote areas of the world.

Five Things to Consider with International Service of Process:

• If you plan to enforce the judgment in the foreign country, “formal” service is recommended
• Only use an experienced and qualified process service company who understands the barriers to service and who can overcome them
• Allow sufficient time for completion of service as work habits and customs in other nations typically cause delays that we do not experience
• Price is important but the successful completion of the service in the foreign nation is the ultimate goal
• Utilize the expertise of an international service of process specialist.

Visit www.processnet1.com/internat.htm for specific country information.

*****
(1) China, Canada, Cayman Islands, and the United States are among countries that require a fee.
(2) Mexico also requires Letters Rogatory in addition to Hague forms.
(3) Service in Argentina can take up to 6 to 8 months.
(4) Convention on Taking of Evidence Abroad on Civil or Commercial Matters; Insofar as requests to United States courts are concerned, the use of Letters Rogatory for requesting the taking of evidence has been replaced, in large part, by applications under 28 U.S.C. section 1782.
(5) Mexico is notorious for bribery by government officials in order to get permission to perform such tasks as process service.

Why Attorneys Don’t Get It

(when it comes to international service of process)

I have the highest respect for attorneys, barristers and solicitors because of their expertise, dedication to their profession, and their ongoing education. However, the fact is that most attorneys do not seem to understand that cases involving out-of-country defendants require an understanding beyond the ordinary. Normal expectations of service completion within a short period of time are blown to the wind when service is to be performed outside the attorney’s own region.

Here are some issues to be considered when serving legal documents outside of the United State and Canada:

Legal system
Of course, not every country operates their legal system as we do in North America. Many do not use case law (precedent) and do not have clearly defined statutory law. Some nations have a system that is completely “foreign” to ours, such as Shari’a law in Islamic countries. Shari’a deals with many topics addressed by secular law, including crime, politics, economics, and personal matters such as sexuality, hygiene, diet, prayer, and fasting. Where it enjoys official status, Shari’a is applied by Islamic judges, not elected or appointed civil judges. Imagine trying to impose Western law on a nation where Shari’a is the official legal system.

Customs and practices
It is important to understand that corruption and bribery are a normal way of doing business within the legal systems of some countries. Among those countries and regions that stand out are Mexico, the Philippines, Eastern Europe, Russia, certain Mid-East nations and Africa. Often times a process server must obtain “permission” from local officials before serving legal documents. Such permission includes a “payoff” in exchange for the right to serve legal process.

Time Frame
Let’s face it; we are spoiled in North America with quick turnaround on service of process assignments. A local service may be completed in a day, or so, while service in another state may be just a few days. However, all of that changes with service outside the region. Factors such as slow work habits (the “Mañana” syndrome) in other nations, resentment of the “Ugly American,” or indifference lead to unforeseen and unavoidable delays in completing service assignments. While the service itself may be completed within a reasonably short time, return of the affidavit of service is often the longest delay.

Communication
In our modern world, we expect instant communication from those with whom we associate by use of email, cell phone, telephone, Facebook, etc. However, the vast majority of the world does not have access to such contemporary tools or do not readily have them at their fingertips. For example, a process server in Madagascar may only check her email once every two weeks or one in Cambodia may not be able to receive incoming phone calls. Compound that with global time changes in more sophisticated nations and it is easy to understand why fast communication is not always possible.

Treaties
The United States is a signatory to several treaties which govern service of process issues between nations. Once the documents are forwarded to the Central Authority of another country most, if not all, of the ability to obtain a status is lost. Under the Hague Service Convention, for example, the courts and/or authority in the foreign nation will not respond to requests for status unless an agent appears, in person, to request an update. That process may take days, or weeks, and still does not lead to an acceleration of the completion of the service.

None of this is intended to be an excuse for delays in service of process outside the country of jurisdiction. Rather, it is a “heads up” that each of the above-mentioned factors must be understood by attorneys prior to arranging for service of process abroad. Keeping court deadlines and statutes in mind, it is crucial to allow proper time for completion of service of process outside of the court’s jurisdiction.

Nelson Tucker is CEO of Process Service Network LLC, based in the Los Angeles area. His firm facilitates process service and legal support services in 127 nations. They have served the legal profession since 1978 and can be found at http://www.processnet1.com/ and contacted via processnet@sbcglobal.net.