Keeping Translation Costs Down

Keeping Translation Costs Down

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).

The Secret (Sauce) to Hague Service

The Secret (Sauce) to Hague Service

This is the Secret Sauce recipe for the vaunted Big Mac.  Really, the formula is not so secret, but replicating the sauce is not for the faint of heart.  And as much as Mom tried to copy it at home to save a few cents, it just couldn’t compare to the Golden Arches.

Yes, counsel, you really can handle service of process abroad by yourself.  All it takes is a few hours of research to pinpoint the applicable rules for serving wherever your defendant is located.  You can replicate it, but call us instead, because it will save you quite a bit of headache, it will save your client quite a bit of money, and it could just save your case from dismissal due to preventable error.

The recipe for Hague Secret Sauce:

  • Step One:  Determine whether the foreign country is a member of the Hague Service Convention; you can find that out here.  If it is a Hague country, you have no choice but to adhere to the treaty’s strictures.
  • Step Two:  Read the Hague Service Convention itself.  Go on.
  • Step Three:  Look at the foreign country’s declarations regarding Article 10.  If they object, you have no choice but to avail yourself of Article 5, which is available everywhere, except in Russia.
  • Step Four:  If they don’t object, then you have to determine what constitutes a competent person under the foreign country’s law.  Its declarations will point you in the right direction—contact that competent person to arrange for service.
  • Step Five:  If you select mail service under Article 10(a), be sure that Hague mail service is acceptable in your jurisdiction.  [Be wary of FRCP 4(f)(2)(C)(ii), too.]
  • Step Six:  If you determine that Article 10 channels are unavailable, then determine the appropriate Central Authority to receive your request under Article 5.  (Germany and Switzerland are fun to discern.)
  • Step Seven:  Determine whether translation of the documents is necessary by consulting the foreign country’s declarations.  If it is not a former British colony, you will most likely have to translate.  And don’t forget the defendant’s right to due process—if they don’t speak English, you’ll have to translate anyway, even if they’re in Toronto or London.
  • Step Eight:  Have the documents translated by a trustworthy service.  [For the love of Adlai Stevenson, don’t use Google Translate, and don’t have your paralegal do it just because she spent a summer in Paris in college.  She is probably not qualified, and even if she is, her time is better spent on paralegal work anyway.]
  • Step Nine:  Fill out Form USM-94, compile the documents to be served (with their translations, as applicable), and send the request to the appropriate Central Authority.
  • Step Ten:  Wait.  In some cases, wait several months—or even a year—for a response from the foreign authority.  FRCP 4(m) gives you safe harbor from dismissal for time, as long as you aren’t dilatory.

To be sure, this series of steps assumes a perfect world, and it does not account for the particularities of each foreign jurisdiction contacted.  That’s where we come in.

  • Hong Kong?  Part of China.  But it still functions under the old British system.  Then again, don’t put Hong Kong on an equal linguistic footing with the PRC.  Bad things happen if you name the jurisdiction carelessly.
  • Israel?  Allows you to hire an agent to serve, but only if that agent is specially appointed by the Jerusalem Directorate of Courts.
  • Canada?  Sure, you can find a process server in the Yellow Pages (the what?).  Except in Quebec, which is not a common law jurisdiction.
  • India?  Over 1.25 billion people.  And only one of them works in the Hague Central Authority.  Good luck.
  • Austria?  Not a Hague member.  And they’re sticklers for doing it their way.  (Seriously… don’t even think about tackling this one yourself.)
  • Taiwan?  Not a Hague member either.  Not technically a state, in the eyes of the world.
  • Mexico?  Just… wow, the headaches that lie ahead.

That’s just to name a few.  In short, call us.  This can be a labyrinth.

[Photo:  that is a Big Mac, the most glorious fast food item in history.  We, as a firm, are huge fans of the Big Mac, and encourage its purchase.  We hope that our endorsement will prevent a C&D letter from McDonald’s Corp. demanding that we take down the photo.  Although we would comply,  two all-beef patties, special sauce, lettuce, cheese…]

Serving U.S. Servicemembers Abroad, Seconda Parte (Part Two)— real world.

Serving U.S. Servicemembers Abroad, Seconda Parte (Part Two)— real world.

A war story, of sorts—told with the permission of my client, a highly regarded personal injury lawyer.  He is one of those guys all the newbie lawyers regard with awe (as do I) because he’s got mad skills in a courtroom.  He found himself in a bit of a quandary last year, and sought help from someone who knows.

He has a medical malpractice suit currently pending, in which a hospital and several doctors are named as defendants.  In the intervening time since the incidents giving rise to the suit, one of the physician defendants joined the United States Navy, and was stationed at Naval Air Station Sigonella in Sicily.

 Sicily coast [Not a rough assignment.  Anyplace called the “Jewel of the Med” is a pretty good billet. —> ]

The client called me last summer to inquire about serving the Navy doctor.   An awfully tough goal, I told him, explaining the gist of my recent post “Serving U.S. servicemembers abroad”.

In a nutshell, if the G.I. lives on a military installation, you’re probably going to have to wait until they return stateside.  A number of rules collide to create a real Catch-22 in serving process… our military authorities either can’t or won’t serve process, and the servicemember’s quarters are off-limits to local authorities.  [Hat tip to Yossarian.]

As luck would have it, though, my client had what he thought was a regular address in Catania, the city between the naval base and beautiful, volcanic Mount Etna.  We hired an Italian investigator who was able to confirm that the address was indeed that of the defendant.  The Navy doc had done what I would do in such a situation… she rented an apartment “on the economy”, as the grown-ups used to refer to off-base housing when I was a brat overseas.

Living in civilian housing put her squarely under the jurisdiction of the local prosecutor, who had the responsibility of serving process pursuant to our request under the Hague Service Convention.  Within a few weeks, the Italians sent word that the defendant had been served because the prosecutor had mailed the documents to her apartment.  They returned proof of service for submission to the venue court, going so far as to cite the various sections of the Italian Civil Code that made it effective.  Defense counsel argued that the doctor had never actually received the summons, so the case against her ought to be dismissed for want of proper service.  Counsel asserted that the Hague Service Convention requires actual delivery to the defendant (it doesn’t), that Italian law requires actual delivery to the defendant (it doesn’t), and that the appropriate authority for the venue court to look to was the European Judicial Network (um… I had to look that one up).

The Convention requires no such thing.  It requires only that the Central Authority of the destination state attest to the effectiveness of service according to its own laws, if indeed that service can be completed.  U.S. caselaw, moreover, cautions courts against analyzing matters of a foreign country’s law when the Central Authority certifies that a method of service is valid.  In short, leave interpretation of foreign countries’ laws to the foreign countries themselves.  [Imagine the howls of protest if an Italian court were to overturn the U.S. Central Authority’s certification of compliance with American law!]

Not only does Italian law require no such thing, but according to the documentation provided by Italian authorities, service by mail is specifically authorized.  Indeed, many civil law countries actually prefer service by mail or mere deposit in a defendant’s mailbox.  Things truly operate differently abroad.  The point is, Italy doesn’t require that the summons reach the defendant’s hands, as counsel argued to the court.

Most puzzling, though, was the contention that the European Judicial Network was a valid interpreter of Italian law, superior even to an Italian court.  The closest U.S. analog would be the Judicial Conference of the United States—but even that analogy falls short because the JCUS has actual statutory authority to set certain policy for the federal judiciary.  The EJN, conversely, is a flexible, informal, unofficial group of “contact points” established to facilitate judicial cooperation among members of the European Union.  Hardly an authoritative body.  [The real analogy here would arise if the JCUS were cited as an authority on Florida law, or New York law, or Colorado law.  Simply put, it lacks such power.  And so does the EJN as to Italian law.]

Cutting to the chase, the venue court agreed with us and denied the motion to dismiss.  Very tersely.

The takeaway: my client did it right.  He’s a master in front of a jury, and he’s been highly successful at vindicating the rights of tort victims.  The guy knows what he’s doing.  But he still called in some help when he saw the challenge in front of him.  Rather than spending the time and resources to serve an overseas defendant himself (and thereby save a few bucks on paper), he sought outside help—more cost-effective, accurate, expeditious help from someone who knows the intricacies of service abroad.

 

Photo credits: **** Main title, from the U.S. Navy at http://www.med.navy.mil/sites/sigonella/clinics/sig/Documents/Hospital%20-2013.jpg  **** Shoreline from the Department of Defense’s Sigonella page at http://www.militaryinstallations.dod.mil/dav/lsn/LSN/IMAGE/IMAGE_CONTENT/2390531.jpg

 

 

Washington Supreme Court corrects massive error

Washington Supreme Court corrects massive error

A little over a year ago, Ted Folkman posted in his fantastic column, Letters Blogatory, about a mistaken ruling in Kim v. Lakeside Adult Family Home (Wash. App. 2015).  When I read the opinion, I concluded that Ted’s description of a “mistake” was far too diplomatic.  The court’s opinion was so wildly wrong that it conflicted violently with the Hague Service Convention.  A bit hyperbolic perhaps, but I really did want to pull my hair out.

Last spring, I took it upon myself to submit an Amicus Brief (in Washington, an Amicus Memorandum) to the state Supreme Court, arguing that the opinion below allowed Washington litigants to contravene the letter, spirit, and underlying purpose of the Convention.   The Appeals Court had read into the Convention an idea that simply wasn’t there—namely, that under Article 19, a U.S. plaintiff could avail himself of a method of service in a foreign country despite that country’s objections to Article 10’s alternative methods, so long as the method was available to litigants in that country’s courts.

In Kim, the plaintiffs hired a private agent to personally serve a Norwegian defendant at her home.  Norway objects to Article 10, but the plaintiffs argued (without substantive citation to authority, as far as I can tell) that Norwegian law permits personal service by private agent.  This runs contrary to the usual practice in civil law jurisdictions, where service of process is a sovereign function carried out almost exclusively by judicial officers.  Setting that issue aside, however, even if private service is available in Norwegian cases, the plaintiff failed to show how such a method should apply to process sent from outside Norway.  Therein lay my objection to the Washington App. Ct. ruling—it was distressingly bad law because it set aside Norway’s Article 10 objections altogether and created a wholly inappropriate doctrine.

If the Supreme Court failed to correct the disastrous holding that the Appeals Court had issued, the only recourse would be to the U.S. Supreme—and the odds of getting there are always slim (and the Norwegian defendant was a nurse… not sufficiently wealthy to carry the issue all the way to the Nine Eight Wise Souls in D.C.).  I also feared that Wash. might decline to hear the matter because the plaintiffs cured their defect by serving the nurse properly via Norway’s Central Authority, rendering the Hague question moot.

Last week, reason prevailed (the opinion is linked from Ted’s follow-up column here).  The Washington Supreme overturned the lower ruling, holding that “ensuring proper service” is an “issue of continuing and substantial public interest,” so mootness wasn’t a problem.  Absent such a holding, the bad law would have remained.  More importantly, the Court also held that “the Hague Convention does not convert a country’s domestic laws on service of process into laws governing service of process of documents coming from abroad.”

Now, I wish they’d stop calling it simply “the Hague Convention”, and I’ve railed about that issue (see here and here).  Regardless, the Court wisely rejected the plaintiffs’ Article 19 argument and fixed a terrible horrible no good very bad mistake.

 

[Disclaimer:  I’m a plaintiffs’ guy at heart.  But my motivation on this one is to make sure that bad law gets torn down, and this one was really bad.  If you’re going to do it, do it right…]

Photo by Harvey Barrison:  The Temple of Justice, home to Washington’s State Supreme Court, via Wikimedia Commons.

Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts

Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts

(… or, if you will, “How to not have to hire Viking Advocates when the contract sours.”)

Let’s get the disclaimers out of the way.  One, this advice is legal in nature, but it is not offered to a specific person.  It is general information meant to provide perspective, to highlight the vulnerabilities in a contract.

Two, it is not an exhaustive list, so if this is all you contemplate in a contract, you are headed for disaster.

Three, if you are a business owner who seeks to enter into a contract with a foreign party, you must (and I cannot stress this enough) HIRE A LAWYER.  This is not just a plea to protect my guild monopoly.  Yes, you’re as smart as any of us.  Yes, you have a wonderful product/service/company/etc. and you do wonderful things.  But you cannot foresee what your lawyer can.  Global commerce is no place for the faint of heart, and it is no place for self-representation.

These are vital issues your lawyer must contemplate before you sign a contract.  If s/he hasn’t thought of them, mention them.  If they tell you these issues aren’t important, run away as fast as you can, because your lawyer is dangerously ignorant of transnational litigation procedures (to be sure, just because your lawyer hasn’t mentioned them does not mean s/he hasn’t factored them into the equation).  These are not absolutes, but are factors that should unquestionably be mentioned.

  1. Designate an agent for service in the United States. All U.S. entities must designate an agent for service when they incorporate, organize, or register with their respective Secretary of State.  Foreign (that is, non-U.S.) entities usually bear no such responsibility.  If a lawsuit becomes necessary, you probably won’t be able to just hire a process server in the foreign country. Your lawyer will need someone like me to handle it for you or, worse, will spend hours just researching how it’s done (and then bill you for that time).  With a U.S. agent, regular U.S. practice is perfectly fine.  (And to go one better, have the contract stipulate that the agent can be served by email!)
  1. Include a choice of venue. Even if that venue is overseas (and in many cases, it’s actually smarter to choose a foreign venue than a U.S. venue), agreeing on the appropriate place for a suit prevents a number of headaches—and can even prevent a dispute from arising in the first place.  Globally, this is referred to as a “choice of court clause” but has similar binding effect in most industrialized countries.
  1. Choose a governing law. Amazingly, the choice of what rules govern a dispute is left out of many contracts completely, with each party simply assuming that their own laws will apply.  That assumption is incredibly dangerous.  To be sure, the negotiated choice of law may not ultimately be the one you hope for, but as the old adage goes… forewarned is forearmed.
  1. Determine the operative language. Especially if the other party puts two versions of a proposed contract in front of you, make sure you select the operative language early on—and then revise that draft accordingly.  An entire civilization once gave over its territory because an ostensibly bilingual contract wasn’t really bilingual.
  1. Guard against having to enforce abroad by making the other party secure a guarantee of judgment debt from an American bank or other guarantor. Yes, it’s a pain in the neck.  Yes, it can drive up the cost of contracting and thus drive up the cost of the entire relationship.  But a judgment following a lawsuit is utterly worthless if it can’t be enforced.  If the foreign party’s assets are all in a country that won’t recognize and enforce a U.S. judgment, litigating the matter is a massive waste of time.
  1. Bonus Tip: add an arbitration clause. It serves the same purpose as a choice of court clause, and often designates specific rules and the governing law.  Thanks to the New York Arbitration Convention, arbitral awards are far easier to enforce abroad than litigated judgments and, despite their political unpopularity, provide significant cost savings in dispute resolution.

Again, your lawyer may have already pondered these tips, but they are still worth discussing.  Viking Advocates assists attorneys in the diligent drafting of global contracts, but the bulk of what we do results from contracts that are silent on these issues.  Hiring us now for a consultation now means not having to hire us later to help wage a long and protracted litigation war.

 

Acknowledgment:  Particular thanks to Dan Harris of Harris Moure in Seattle, who pens an outstanding blog on the legal ramifications of doing business in China.  Dan’s thoughts on litigating against Chinese opponents are extrapolated more generally here.

Service of Process in Russia… probably not going to happen.

Service of Process in Russia… probably not going to happen.

An interesting order & opinion from the Southern District of New York outlines the massive problem litigators face when suing—and serving—defendants in Russia.   See AMTO, LLC v. Bedford Asset Management, LLC, No. 7:2014cv09913 (S.D.N.Y., 2015).  In AMTO, the Bedford defendant sought to serve a third-party defendant in Russia by alternative means, specifically, via the defendant’s Gmail account, and leave was granted by the court.  Ordinarily, service by email is authorized only when other avenues have been exhausted, but in Russia, there simply aren’t any avenues to exhaust.

A bit of a quandary here.  Russia and the U.S. are parties to the Hague Service Convention (HSC).  Under U.S. law, a plaintiff must adhere to the HSC if there is “occasion to send the documents abroad for service.”  See the text of the Convention itself, as construed by Volkswagenwerk AG v. Schlunk, 486 U.S. 694 (1988).  As such, any attempt to circumvent the parameters of the treaty is ineffective for service of U.S. process.  A critical note, however, is that this requirement means different things in different countries.  The methods available depend on the defendant’s location.  In England or France, plaintiffs have several options.  In other countries, including Russia, China, and Germany, only one method of service is legally sufficient—and this creates a Catch-22 with Russia.

Article 3 of the Convention requires member states to designate a Central Authority to receive requests for service, which are submitted by foreign parties under Article 5.  The Authority is tasked with processing those requests and having service effected according to the destination country’s law and common practice.  This is the method made available by all member states, no member state can object to its use, and refusal to accommodate a valid request can be based only on certain criteria (e.g.: national security or infringement on state sovereignty).

Article 12, in turn, prohibits the assessment of fees by the destination state for service that the state itself performs.  The U.S. Department of Justice, our designated Central Authority for Hague requests, has outsourced its function to a private contractor.  The contractor, Process Forwarding International (PFI), charges a fee of $95 for the act of serving foreign process as the exclusive agent of DoJ, either through its network of private process servers or through the U.S. mail.

Russia, understandably, views PFI’s fee as a violation of Article 12.  The U.S. counterargument, it seems, is that requests undertaken by the contractor are processed by “competent persons” other than the government itself, so the fees are appropriate under Article 12(a).  To be sure, DoJ officials never actually handle requests, so the argument is technically accurate.  But the mere outsourcing of the DoJ responsibility is a clear abdication of a treaty obligation.  To be sure, PFI gets the job done—and it gets the job done well—but the U.S. Central Authority doesn’t foot the bill!

The net result is very straightforward:  under the belief that the U.S. is in violation of the Convention, the Russian Ministry of Justice flatly refuses to process Article 5 requests from the United States.  (Aside: China likewise views the fee as violative, but it instead charges reciprocal fees on U.S. requests.)

Given that Russia objected to the alternative methods described in Article 10– the options available in Canada, England, and France– there is quite literally no way to legally effect service on a defendant in Russia.

Yet not all is lost.  Whether the defendant is in Russia or elsewhere, it is often possible to effect service by alternate means, but a good deal of creativity is necessary to hale the defendant into court.  (Email, anyone?)

 

Image source: www.publicdomainpictures.net, Image #42958

Always Question the Validity of Hague Service Requests

Always Question the Validity of Hague Service Requests

The Hague Service Convention is mandatory doctrine in U.S. law. Wherever the treaty applies, plaintiffs must follow its dictates. Failure to strictly adhere means their attempts at service—whether successful or not—are ineffective. The safest avenue to a sound legal footing is by filing a request with a foreign country’s Hague Central Authority pursuant to Article 5 of the Convention.

A properly formatted request, which prompts the foreign Authority to serve a defendant, results in a Hague Certificate of Service, a globally standard attestation by the foreign Authority that service is complete. The court hearing the case cannot look behind the Certificate to analyze whether service was effective under the foreign country’s law.

But what if the underlying request is itself invalid? Herein lies a flaw in the practice undertaken by many plaintiffs. On a standard Hague form (commonly, the USM-94 in the United States) the requestor should indicate a basis for his or her authority to forward the request.

While the designation of method and of who can serve in the foreign country is determined by that country’s declarations to the Convention, the determination of who can forward a request (that is, sign the form) is made by the country where the case originates.

Under U.S. law, that means a court official or an attorney. A Hague request signed by a non-lawyer who is neither a court official nor specifically commissioned by the court is invalid…

(Joe Bob is not a lawyer.)
(Joe Bob is not a lawyer.)

Although a few foreign Authorities do balk at flawed statements of a requestor’s right to file, most give the matter scant thought. As such, service is carried out, but on an invalid basis.

By and large, Hague Certificates are unassailable. The forum court is not the most competent finder of foreign law (that is best left to the foreign country’s authorities!), so it has to take the Certificate at face value, but that is only part of the issue. The request itself must comply with U.S. law at its inception, regardless of the foreign country’s execution. Many don’t.

[Viking Advocates offers assistance in quashing service undertaken incorrectly, and we make sure it is effected properly at the outset.  If your foreign client has been served– ostensibly– let us take a look at the situation.  Email inquiries@vikinglaw.us any time.]