Why Your Process Server May Be Letting You Down

by Nelson Tucker, M.P.S.

CEO, Process Service Network



This is not an indictment of your process server, but rather, is intended to help you help your process server do a more effective job for your firm.  Please allow me to explain.

 

Many process servers are highly trained, capable and effective – some are not!  You know if you have a good one based on their performance.  All of us who provide legal support services can always use additional training and acquiring of new resources.  Finding the additional training and on-going education can be difficult for some process servers to find.  Here are some helpful tips that you can pass along to your process server.

 

Develop creative ways to get people served – the days of simply knocking on the front door of a defendant or witness and expecting them to open the portal and accept the documents are a thing of the past.  People have become more cynical of a stranger at the door, especially at night. Some techniques utilized by many process servers include:

 

·         Wearing their ID card in a lanyard around their neck – people inside the residence may peek through a window or peephole and see what appears to be identification and will be more likely to open the door;

·         Displaying their process server badge (in states where allowed) when a person inside looks out to see who is at the door;

·         Leaving a “Notice” on the front door of the residence if persons inside do not respond after knocking.  Process Service Network developed a notice that advises the defendant that they have 24 hours to contact the process server to make arrangements for service or legal consequences may follow.  The result is an 89% call-in rate and 100% service completion.  We are pleased to share the notice with interested parties;

·         Include a special notice, with the appropriate laws of the state where service is being made, on top of the service documents.  This one-page notice describes the optional methods of service (substituted service, posting, service by publication, etc.) and educates the person being served that personal service may not be the exclusive method of service.  This is especially effective when performing a substituted service;

·         If serving a defendant at work, call them while outside in the parking lot and advise that you are a process server, that you have legal documents for them, and you do not wish to cause them embarrassment by serving them at work.  One hundred percent of the defendants will either come outside to accept or direct you to the reception area where they will meet to accept the documents.

 

Serve people the way you would expect to be served – the movies and TV have always portrayed process servers as villains who slap a subpoena on the chest of a witness and proclaim, “You’ve been served!”  Bad idea.  It has been said that you can catch more flies with honey than with vinegar.  True. You can serve more people with kindness than with rudeness.  The question a process server should ask themselves is “How would I like to be served if someone were serving me?”  The answer is with dignity and professionalism.

 

No doubt, your process server is proficient in modern techniques and current laws.  These suggestions can only make him or her more efficient.

 

If we can assist with hard-to-serve cases domestically or international services anywhere in the world, please contact us at nelson@processnet1.com .

 

Nelson Tucker is CEO of Process Service 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 nelson@processnet.com  or by visiting his website at www.processnet1.com .  He is active with the American Bar Association, Los Angeles County Bar Association, Ventura County Bar Association, and the Los Angeles World Affairs Council.

Why International Process Service Is So Expensive

People ask me all of the time, “Why is international service of process so expensive?”  My answer is simple although it does not resonate well with some attorneys and paralegals. 

Process serving is more expensive in most countries than locally because of 1) security issues, 2) cost of living in the foreign nation, 3)  scarcity of qualified process servers in some areas, 4) currency exchange, 5) fuel costs, 6) travel time, 7) number of attempts required to complete service, 8) expertise of the U.S. firm which is handling the service, 9) belief by foreign process servers that U.S. attorneys can afford to pay more, 10) bank transfer costs to pay foreign process servers, and 11) bribes that are often required in order to obtain permission to perform the service.  Please allow me to explain each reason:

1.       Although the bribery issue may be the most shocking, the primary cause of high costs is security issues associated with serving legal documents in many nations.  For example, it is customary for a process server in other countries to have 2-4 bodyguards with him while making the service. That extra security is not related to actually serving the documents, but rather, to issues such as kidnapping, mugging, and attack by street people.  If you calculate the costs of two to four additional people involved in the service, you quickly see that the costs can be staggering.  Process servers are subjected to threats that are unheard of in most areas of North America and they must take additional precautions to insure their safety.

2.       The cost of living and prevailing rates charged by process servers in many areas of the world explain high costs.  Hong Kong, Singapore and Paris are good examples of cities having an extreme cost of living and process service fees are proportionally higher than in such places as Dublin, Vancouver or Cancun.

3.       Because process serving is not a common task in many countries due to their legal system, there are often no qualified process servers to perform the assignment.  When Process Service Network began serving in foreign countries, we developed a team of private process servers, private investigators, and off-duty law enforcement officers to handle the tasks.  Often, we had to train the person in order to have a qualified agent to handle services. Now, we offer the #1 training program in the world through our own Process Service University. Costs are affected by currency exchange rates in such areas as Europe, especially the UK where the Sterling Pound is strong against the Dollar.  A service that would normally cost $100 in the U.S. would be $200 in the UK, assuming all other factors were equal.

4.       Fuel costs are seriously higher in almost every area of the world compared to the states. In most of Europe gas is over $6.00 per gallon while in Taiwan is often reaches $8.00 per gallon.

5.       Travel time is a major factor in international service of process as it is common for drive time to be several hours to get from one side of a major city to the other.  If you have ever visited Manila, Mexico City, Tokyo, Taipei, Beijing, Paris or Rome you understand.  Service in outlying areas where there are no process servers often require overnight stays and multiple attempts, thus increasing the cost.

6.       Process servers are contracted for completing a service rather than simply making attempts.  Therefore, they set their fees to accommodate having to make numerous attempts at service.  For example, it is common for 10 or more attempts at service be made prior to completing the service.  Since the foreign process server must pay his/her own expenses, their quoted rates are high due to anticipated trips.

7.       Just as an attorney is entitled to significant hourly rates based on their expertise, companies which specialize in international service of process have specific expertise that command a fair market rate.  Fortunately, process service firms charge a flat rate for the case, not by the hour.

8.       There is a perception among foreign process servers that all U.S. attorneys are rich….too much television.  That opinion leads them to believe that they can gouge American law firms.  In reality, U.S. attorneys face the same fiscal constraints as those in any other country.  Educating the overseas process server is the job of a reputable company that facilitates international service of process on behalf of their clients.

9.       Bank wire fees, and sometimes, Western Union fees lead to increased costs.  Since many foreign process servers require payment, in advance, it is usually necessary to make payment by bank transfer or other methods prior to making the assignment.

10.   The final cost that creates higher rates is the money that must be paid for bribes to get permission from local officials to serve legal documents.  Bribes are a reality and are quite common in most regions of the world – it’s the way things get done.  Process servers are forced to pay “fees” to government officials in order to get law enforcement cooperation and even, in some cases, to avoid prosecution for not paying the bribe.

In summary, things work differently in most parts of the world than in North America.  You may not fully understand that until you visit certain regions and experience the hidden costs that are often associated with conducting business.

The solution to avoiding unknown hidden costs is to employ the services of a reputable process service firm that specializes in international service.  They understand the ins-and-outs of the business and know how to circumvent many of the concealed costs.

For answers to questions you may have about this article, please contact Nelson Tucker, CEO of Process Service Network, LLC, by email at processnet@sbcglobal.net, phone at 1-800-417-7623, or visit the website at www.processnet1.com.

Dangers of International Service of Process

Serving a defendant in a foreign nation can seem daunting and overwhelming to an attorney who has never had the experience.  It seems cumbersome (and, it is) but many lawyers do not realize the “dangers” they face personally by tackling the task without proper knowledge.

When we speak of the dangers involved in serving a legal document overseas, we could be talking about danger to the process server.  However, the attorney’s greater concern should be about the hazard and peril that will affect him or her if the assignment is not properly carried out.  Even worse, the attorney could cause great jeopardy to their case by attempting to do the service using shortcuts, such as illegal service by mail.

There is no question that process serving in some countries can be dangerous.  Occasionally, death or injury results when a process server serves a party who does not wish to be served.  Such was the case in 2003 when a process server was killed in Saudi Arabia after serving a defendant just across the border in Oman.  However, just as is the case in the U.S., process servers who are properly trained and use good judgment rarely encounter dangerous situations.

It is not uncommon for a process server in certain regions to be accompanied by 2-4 bodyguards when service legal documents.  That is a choice they make based upon their belief that the task may be unsafe or based upon the neighborhood where they are serving.

I have personally served legal documents in 31 countries and have never experienced any dangerous  challenges, except in my own town over 30 years ago.

“…. penalties include both civil and criminal punishments against the attorney, law

firm, plaintiff, and any employee or agent who was involved in the illegal service!”

Now, let us address the issue of attorneys creating a “dangerous” situation for themselves and their client.  The most common mistake that attorneys make when faced with having to serve a defendant in a foreign nation is using shortcuts which are illegal in that country.

Service by mail of documents originating in a foreign jurisdiction is prohibited in most nations – that is their right, just as the U.S. and its states have the right to pass laws related to service of process.  For example, Germany, Japan, Switzerland, Argentina, Czech Republic, South Korea, Norway, China, Turkey …and on and on …prohibit service by mail.  All are signatories to the Hague Service Convention and have filed specific reservations related to such service.  In addition, many nations which are not “Hague” signatories have federal laws which prohibit service by mail or private party.

Here is where the going gets tough for unknowing attorneys who violate the laws of other countries as they relate to service of process.  Nations such as Germany, Japan, China, South Korea and numerous others impose strict sanctions on law firms who violate their laws.  Such penalties include both civil and criminal punishments against the attorney, law firm, plaintiff, and any employee or agent who was involved in the illegal service!

I have had numerous attorneys argue that the laws of the United States and the local court prevail over the requirements in foreign countries.  WRONG!!!  Let me explain in simple terms:  Imagine that a case was filed against your client in a foreign country, let’s say North Korea, and there it is legal for a person to be beaten merely because they are accused of a civil tort.  In this example, there is no doubt that if the law in North Korea permits such action since it is legal there.  Let us fast-forward and the summons from a North Korean court is being served upon a person residing in the U.S.  Is it permissible for the process server to physically beat the defendant on their front porch simply because they are being served with legal documents?  Of course, you know the answer. 

The laws of the jurisdiction where the case originates and the laws of the state of destination must be followed.

So, what strategies can be employed to ensure that an attorney does not go astray from the legal requirements of another country?  Perhaps the strongest recommendation I can offer is to enlist the services of an experienced international service of process specialist, such as those at our firm.  Information and guidance is free and charges are incurred only when a service assignment is made.

It will save hours of research and result in the peace of mind that goes with knowing that you are in good hands. After all, we’ve been doing it for 33 years so we must be doing something right!

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

4 Steps to Successful Service Abroad

They forgot to teach potential lawyers in law school all of the details about service of process in foreign nations. Correction: They forgot to teach anything about foreign service in almost all law schools in the U.S. The result is not knowing where to turn when an attorney has a case involving a defendant in another country.

Here’s how to analyze the situation when filtering through the maze of service of process outside the country:

Step 1: Do your research …. Google, Yahoo, etc. when searching for information on service in a specific nation. Hint: Be specific in your search, i.e. if service is needed in Egypt, search by “service of process Egypt” rather than “international process server.” Top ranking is important but watch for companies that do not specialize in international service of process. Look for process service firms that have a record of longevity and a strong reference list. Avoid companies that have international process service as a secondary function. Example, translation companies that also offer process service as a sideline; they typically ‘farm out” the service assignments and do not have full knowledge or control over the service.

Step 2: Ask questions …. Send an email requesting confirmation of web-based fee quotes. After you receive a reply, place a call to the responder to insure that a live body is on the other end. It is amazing how many top Google-ranked process servers are actually based outside the U.S. That should be a concern since there is no accountability if they fail to perform the promised service. Ask for referrals!

Step 3: Understand the promise …. Don’t take for granted how the service will be completed. Ask for specifics as to how the process works, time frame, possible obstacles. Determine, up front, if there are hidden costs and who is responsible for errors made in the process. Get everything in writing (email).

Step 4: Relax …. If you assign the service to a reliable process service firm you should expect that they will handle your assignment correctly and timely.

Keep in mind that service of process in another country will not be as efficient or as speedy as it is here in the U.S. due to customs, conflicting laws, and local restrictions on process servers. Your process service firm should be sensitive to court deadlines and provide an affidavit regarding the status of the service, at no charge, upon your request.

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 http://www.processnet1.com/

How Facebook and Social Media Are Affecting Service of Process

Facebook, Twitter, LinkedIn, Google Buzz, MySpace and blogging platforms like Blogger.com and WordPress.com have emerged on the social networking scene with rapid growth and significance. As more and more people seek to make themselves, and their personal lives, known to all who have an interest there is also the issue of lack of privacy.

This situation makes it easier for process servers and investigators to find people who they are trying to serve with legal documents. For example, I recently had accepted a service for a defendant. The client, however, did not have the defendant's address. I conducted a search for the defendant utilizing my subscription-based, people-locator service. The results of that search yielded nothing in the defendant's name. Had this situation occurred five years ago, I might have been stumped.

Today, however, we live in "social media" world; a world where, it seems, just about everybody is on-line and sharing everything from their latest trip to the coffeehouse, to what they watched on TV the night before.

I began a search for the defendant on all of the prominent social media networks and found loads of personal data on Facebook, LinkedIn and Twitter. It was fairly easy to match her name, and contact information via the social media networks.

Still, the missing bit of information was her address. So, I sent her a message using the personal interests she listed, and after several exchanges, she revealed that she was an insurance agent. I then searched the public records and found her business address. She was personally served the next morning.

This brings me back to how the rise of social media sites are affecting the service of process in the world today.

As more and more social media sites arise, and as more and more people log-in, follow, and "friend" each other on these sites, the opportunity to find people who may otherwise be “laying low” will increase. With Facebook now boasting 500 million users, and Twitter hovering around 190 million users (to cite but two social media sites), and the vast majority of the users rarely thinking about privacy issues, it does not look like the masses will curtail their appetite to make their personal likes and interests known to the world; at least not until such time as there is a reversal in the outlook towards, and interest in, social media.

All current social media growth indicators suggest that is not likely in the foreseeable future.

Process Service Network, a legal support firm in the Los Angeles, CA area, has developed a worldwide network of process servers and private investigators. They have been international service of process specialists since 1978 and have handled over 1 million cases since that time.

Process Service Network can be found at http://www.processnet1.com/ or email at processnet@sbcglobal.net

Why Process Servers Cheat

Imagine that you are named as a defendant in a lawsuit but you are never served with your copy of the Summons. When your wages are garnished or your bank account is levied, you will be forced to spend endless hours to correct the problem….all because a process server failed to serve you.

Believe it or not, it happens all the time. For example, New York City has long been known for “sewer service,” a situation in which the process server throws the documents away and files an affidavit of service claiming that you were served. Recent laws in New York have put a halt to such unlawful actions. How could they be so callous? The reasons are typically financial and laziness.

Some process servers are paid as little as $10.00 per document to be served. If they have heavy volume, they can make a very good living at that rate. However, if they have only a few papers to serve and a significant travel distance between each service, some process servers may begin to take short cuts in order to make ends meet.

Other process servers are just plain lazy when it comes to working diligently to completed their assigned services. Since most are independent contractors who arrange their own work schedule, if they do not have strong work ethics they can easily slip into non-productive work habits. That will eventually catch up with them but often the damage is already done.

What many unscrupulous process servers fail to remember is they are “officers of the court” while serving legal documents. Great public trust has been placed on them and they have a duty to follow the law while doing what is right.

Now, don’t get me wrong….most process servers are honest, law abiding, and diligent. Many are former law enforcement officers who are semi-retired. The vast majority of process servers carry out their duties properly.

As I have taught process servers and investigators in my classes, “treat every defendant as you would wish to be treated if you were in their shoes.” If every process server does that, their job will be easier and due process will be served.

A properly trained process server is the key to safety of both the server and protection of the rights of the person being served. Nelson Tucker, CEO of Process Service Network in California, has trained over 1700 process servers in the past 24 years and has authored 3 books on service of process. Process Service Network can be found at http://www.processnet1.com/ or email at processnet@sbcglobal.net

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.

Is Mississippi Out of Its Mind?

(Requiring Minimum Pro Bono Work)

The Mississippi Supreme Court proposes mandatory pro bono services by attorneys practicing in the state. According to the National Law Journal, the court is considering a requirement to make lawyers perform 20 hours of pro bono services each year or face a $500.00 fee.

The American Bar Association (ABA) states that Mississippi would be the only state to require pro bono services if the proposal is adopted. There are only seven states that currently require the reporting of pro bono hours.

Most law firms provide a limited number of pro bono hours and some take it quite seriously. The number one U.S. firm, as ranked by American Lawyer magazine based on total pro bono hours in 2010, was Jenner & Block of Chicago, Los Angeles, New York, and Washington, D.C. They were named top firm for two years in a row. The average time devoted to pro bono was 169.5 hours per lawyer, the highest of any law firm. Nearly 91 percent of the firm’s lawyers contributed at least 20 hours to pro bono matters.

In Mississippi, it’s the Mississippi Volunteer Lawyers Project (MVLP) that coordinates and pro bono issues. MVLP is a nonprofit program of The Mississippi Bar Association and Mississippi Legal Services Programs. More than 1,900 Mississippi attorneys are signed up to volunteer their time and expertise to participate in the Project, and as a result, more than 8,000 low income citizens are assisted by the Project each year.

So, why the need to impose requirements for all attorneys to offer a minimum number of pro bono hours annually? Is it a money-making project for the Mississippi Bar Association or just an attempt to make all attorneys in the state give away their time to help low income citizens? Should physicians also be required to provide pro bono services to their patients? Those answers are best left to the attorneys in Mississippi who should have the same freedom as those in all of the other 49 states.

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 and have served the legal profession since 1978. Information can be found at www.processnet1.com or via processnet@sbcglobal.net.

How Process Serving and Law Firm Practices are Similar

There are striking similarities with the practice of law by an attorney and service of process by a professional process server. Let us examine what the two professions have in common.

Know the Law
Attorneys spend significant time in law school studying laws and developing conceptual knowledge and legal reasoning. They are trained to know the law, or at a minimum, know how to find applicable laws related to a pending case. That education pays off once they are practicing law and preparing cases.

While most professional process servers do not receive formal training or education, they are held to strict standards of having a full working knowledge of laws related to service of process. Those who take the initiative to learn every possible aspect of the profession, whether formally or self-taught, soon rise to the top and are the most successful in their field.

Follow the Law
Lawyers succeed by understanding the law and applying it to their case. While there are normally two competing sides to every case, there is usually case law that will support either side. That is why we have judges.

Process servers must follow the law in a different way than attorneys. The successful process server must understand the statutory law and the applicable case laws related to the type of service they are performing. There can only be one side and the process server must follow the letter of the law, both statutory and case law.

Look After Client's Interests
Attorneys have a duty to protect the interests of their client and to represent them in the best manner possible, ensuring that they receive all the benefits afforded to them under the law. Their duty includes making sure they communicate with their client effectively and in a timely manner. They must advise their client in a professional manner, keeping their objectivity and understanding of the law in mind at all times when counseling their client on any actions they should take. Further, attorneys have a duty to maintain privileged communications between them and their client, ensuring personal information is closely guarded.

Similarly, a professional process server has a duty to their client (the attorney) to perform the assigned services in a professional manner while following established industry standards and practices. They must also advise their client when the requested assignment violates the law or is not in the best interest of the attorney or his/her client. Example: Attorney assigns a service of process for a hearing whose deadline for service has expired. The process server has a duty to advise the attorney of the discrepancy with the attorney having the final say, provided it does not violate the law.

Win the Case
A lawyer has two primary objectives: 1) represent their client properly, and 2) win the case! That is why they are hired and what their client expects.

A process server has a similar goal: 1) represent the interests of their client, and 2) complete the assignment properly.

Build a Reputation
Successful lawyers become successful by practicing in a manner that satisfies the needs of their clients. Their clients become their best "word of mouth" ambassadors which leads to reputation building in a relatively short period of time. It is the quality of the attorney's work, win or lose, that creates a positive or negative reputation.

There are more process servers today than ever before and some are obviously better than others. The number of years of experience and the high quality of work product lead to the building of a positive reputation that makes a process server successful. Highly sought after process servers reach their level of success based on doing exceptional work that meets the needs of their clients.

While attorneys and process servers cannot be compared on a professional scale, the similarities of their responsibilities lead to the conclusion that both are vitally important to the legal process.

Nelson Tucker is CEO of Process Service Network, LLC in the Los Angeles area. He may be reached by email at processnet@sbcglobal.net or by visiting their website at www.processnet1.com. Nelson is active with the American Bar Association, Los Angeles County Bar Association, and the San Fernando Valley Bar Association.

Dealing with Difficult Nations: Legal Cases Outside the U.S.

The laws related to service of process differ in every country, just as they differ in many jurisdictions within the United States. The secret is to understand the laws and regulations in the country where the service is to be performed. That is a function of the process service firm that handles your service abroad.

Service of process in some countries is extremely difficult due to conflicts between nations, perceived unfair laws, and customs within the foreign nation.

Perhaps the most egregious nation currently is Mexico. Their government has imposed unfair requirements on cases originating in the United States being served upon Mexican entities. Such restrictions do not apply to other nations and are apparently imposed to protect their citizens and corporations while being used as a tool to gain concessions from the U.S. government.

Cuba and North Korea are other countries that do not look favorably on lawsuits originating in the U.S. to be served upon their citizens. Their governments do not have treaties with the United States and do not allow for service by their own citizens who may act as a private process server. In Cuba, it is common to arrange for a process server from Mexico to enter the country to serve legal documents that originate in the U.S. However, North Korea strictly prohibits service of U.S.-based legal actions within their territorial limits. Violators are subject to prosecution which may result in death.

Saudi Arabia and some of its neighbors have a history of being “unfriendly” to process servers within their borders. In 2003, a process server was killed while serving legal documents for Process Service Network. See page 142 of the following link: Process Server Killed In Saudi Arabia

While the profession of process serving is often dangerous, by nature, experience process servers take the necessary steps to avoid problems while serving in foreign nations. In most countries outside North America and Western Europe, a process server is typically accompanied by two, or more, body guards which leads to higher costs for service.

No matter which country a service is to be made, consult with a reputable international process server for guidance as to applicable laws in the country where service is being contemplated. They will keep the attorney, and their client, out of potential liability.

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 http://www.processnet1.com/

International Service of Process: What Every Attorney Should Know

by Nelson Tucker, CEO, Process Service Network, LLC
Associate Member of San Fernando Valley Bar Association

Not only did law school minimize the importance of the laws related to service of process, but they did not even mention “international” service. After all, such service was a rarity until recent years.

Now, with the world shrinking and the global economy expanding, litigation between parties in the United States and foreign countries is increasing at a substantial annual rate. No doubt, within a short period of time, most U.S. attorneys will be faced with having a foreign defendant served with legal documents. What happens, then? The research time to determine the laws of another country can be staggering.

To combat the challenge of handling international matters for clients, it is important to understand the basic issues related to international service of process.

Most international disputes arise from such areas as personal injury, trademark and patent infringement, products liability, family law, collections, and real estate matters.

International service of process seems to be a maze until you discover that certain treaties and local foreign laws may apply which simplify the process. The most widely used treaty is the “Hague Service Convention” which outlines the methods for process service in a specific country.

Another “formal” method of international service is by Letters Rogatory, a cumbersome, expensive and time-consuming method that should be used only as a last resort. Letters Rogatory is simply a request from the court of jurisdiction to the court where the service is to be made asking for judicial assistance. It is used when enforcement of judgment is sought in a nation where no service of process treaty exists. It is also used when serving a civil subpoena in a foreign country. Preparing it correctly to conform to the specific requirements of each country is an “art.”


["...in many instances, state law does not apply to service outside the United States…"]

Understanding the procedures for compliance with applicable treaties and local laws will avoid civil and criminal penalties against the attorney and client who violate the law, albeit unknowingly. In many instances, state law does not apply to service outside the United States, so it is essential that the process begin with a complete understanding of the laws of the country involved.

Some nations, such as Germany, Japan, Switzerland, Korea, Argentina and Italy currently outlaw service by private party or process server. Others such as Taiwan, Australia, The Philippines, and Saudi Arabia do not have treaties in force and allow service by an “informal” method, such as by private process server.

Many nations require the court documents to be translated into the official language of that country, while others accept an English version. Translation costs can often exceed the fee for service so it is vital to consult with the process service firm prior to filing the case, if possible. Once the case has been filed, all documents to be served must be translated; there are no exceptions.

The greatest challenge in international service of process is meeting court-established deadlines. An extension of time for completion of service can normally be obtained by providing the court with a proper declaration from the process server.

Although few private process servers understand the rules related to international service, a handful specialize in serving the needs of clients in foreign markets where the maze is simplified.

According to Scott Spooner, International Specialist with Process Service Network in the San Fernando Valley, “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. “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.

Eddie Varón Levy is an attorney who practices in California and Mexico. He is a former employee of the Mexican Central Authority who understands the challenges of service there. “They are very clever at putting up roadblocks to slow down the process of serving their corporations,” said Levy. “I know, firsthand, how the system works there. The only way around it is to fully understand how to by-pass their obstacles.”

Other countries are not as protective and service of process is as easy as it is in the United States. Such nations as the United Kingdom, Canada, Spain, Australia, Malaysia, and Sweden allow private process servers a free rein to complete service of process without governmental obstacles.

In summary, international service of process is something best left to professionals who understand the issues thoroughly. Process service firms that specialize in international matters can make an attorney’s job seamless and take the mystery of dealing in foreign legal systems.

Five Things to Consider with International Service of Process:

1. If you plan to enforce the judgment in the foreign country, “formal” service is recommended. This method includes service pursuant to a treaty, such as the Hague Service Convention, or by Letters Rogatory;

2. Only use an experienced and qualified process service company who understands the barriers to international service and who can overcome them;

3. Allow sufficient time for completion of service as work habits, customs, and bureaucracy in other nations typically cause delays that we do not experience here in the States;

4. Price is usually important but the successful completion of the service in the foreign nation is the ultimate goal;

5. Utilize the expertise of an international service of process specialist who is local like Process Service Network in the San Fernando Valley.

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

Nelson Tucker is CEO and founder of Process Service Network, LLC located in Winnetka, CA. He has owned the legal support business since 1978 and has written several books on service of process. Nelson is an Associate Member of the San Fernando Valley Bar Association and the American Bar Association. He is a qualified expert witness in process service issues. He can be reached at 800-417-7623 or processnet@sbcglobal.net.

American Bar Association Annual Meeting to Benefit Attorneys

When the American Bar Association (ABA) convenes its Annual Meeting in San Francisco on August 5-7, 2010, attorneys from across America will join together to learn, exchange ideas, and enjoy the City by the Bay.

Over 220 CLE programs that will help improve professional skills and expertise. There will be abundant opportunities to network with lawyers and judges from around the world. The meeting will also feature the world’s largest legal EXPO, providing an array of goods and services pertaining to the practice of law. Process Service Network is proud to be an exhibitor during the event.

Everyone knows that San Francisco boasts a great vacation experience, including sightseeing, food, shopping, and other attractions all within walking distance. The cool summer temperatures and low humidity provide one of the nation’s best locations to spend some extra time before or after the Annual Meeting. Hotel rates are surprisingly affordable during this peak tourist season.

The Annual Meeting’s flexible format allows participants to customize their own schedule and have the full benefits of the location. It will be a great time for everything the ABA and the Bay Area have to offer.

Process Service Network can be found at http://www.processnet1.com/ or email at processnet@sbcglobal.net

When Attorneys Should Not Serve Their Own Papers

Most states allow attorneys to serve their own legal documents provided they are not a party to the case. However, some attorneys have recently found themselves in hot water by using tactics that are beyond the industry standards or are, in fact, unlawful.

Case in point is the California lawyer who lost the tip of his finger when it became lodged in the door of a witness while serving a subpoena. The attorney (process server) later filed a lawsuit against the witness claiming that he closed the door without warning; thus injuring his finger. However, upon closer examination it is evident that the attorney caused his own injuries by allowing his hand to break the threshold of the front door as it was being closed.

The attorney admits that he “enjoys” serving witnesses who appear to be difficult to locate and serve. His zealousness to complete the subpoena may have lead to his downfall (injury).

The accounts of what actually differ widely by each party. First, the witness claimed that the process server (attorney) held the documents behind his back as the door was opened and then threw them inside onto the floor. Believing that the object might be a bomb or other destructive device, he shut the door. The process server claims that he asked for the identity of the witness and attempted to hand him the subpoena when the door was suddenly shut on his finger.

Experts have provided deposition testimony that dispute the process server’s account of the incident, relying on physics and other methods to determine that the injury could not have been caused as described by the server.

While the fact that the process server was an attorney does not affect the validity of the service of process, if he had followed proper service techniques and industry standards, the incident would not have happened. Properly trained process servers are the key to safety of both the server and the person being served.

Nelson Tucker of Process Service Network in California has trained over 1700 process servers in the past 24 years and has authored 3 books on service of process. Process Service Network can be found at http://www.processnet1.com/ or email at processnet@sbcglobal.net

Process Serving International

Many attorneys contact me with questions about serving a defendant in a foreign country. The process can be quite disheartening, unless you have the expertise in every country and understand their laws.
We are entering our 31st year of providing support services to the legal profession, and in that time, we have researched the laws of 134 countries as they relate to service of process. We regularly serve legal documents in every country in the world.
The greatest challenge attorneys face is not understanding the laws and prohibitions against certain types of service. For example, you cannot use a private process server in such countries as Germany, Japan, China, and numerous others. To do so subjects the attorney, and their client, to serious civil and criminal penalties.
Process Service Network is the solution to all international, and domestic, process service assignments. We actually make the process easy!

Process Service in Japan

Process service in Japan can be complicated and will be rejected by the Ministry of Foreign affairs if not handled right. They require special wording on the official request. Japan prohibits service by mail of any legal documents and made that reservation when signing the Hague Service Convention. It is a violation of their federal law to serve by mail or private process server. There are serious penalties, both civil and criminal for violation of their laws.

For additional information, see http://www.processnet1.com/japan.htm