Look outside your silo

Look outside your silo

I spent the better part of last week railing against (and about) doctors. This is not a rant against the medical profession, although it may seem so. Rather, it is a comparative view of our two little guild monopolies and their mirror-image foibles.

My mother was hospitalized recently, and I very quickly concluded that specialists don’t look outside their own particular silo of practice to see how various problems interact. The endocrinologist doesn’t pay much attention to pulmonology, the pulmonologist has nothing to do with anything not pertaining directly to breathing, and the GP just shrugs and points to the specialists, as if to say “I dunno“. It seems that only extraordinary physicians of whatever type actually talk to the patient.

Perhaps it’s because they fear ATLA members coming after them in the night with torches and pitchforks, but their lack of a broader view diminishes treatment value. If nobody is coordinating the specialists, there is no continuity, and the patient takes longer to heal. (Not to mention, her lawyer son tries like mad to come up with a cause of action.)

It’s excruciatingly simple, folks. The lungs, the heart, the glands, the feet… all those systems are interconnected. One body, one person, one whole. So how about treating the patient rather than the symptom? There is certainly merit in a doctor deferring to experts outside his specialty—nobody wants a radiologist to wield a scalpel—but there is far too little holistic treatment going on in our hospitals. (Exception: Osteopaths. An entire degree classification dedicated to holistic treatment.)

Lawyers seem to have the opposite problem. We have far too much holistic representation going on. Lots of general practice attorneys—and even many specialists ¹— are too hesitant to admit that a client’s needs go beyond their expertise and they have to call in outside help. Very often we want too much to be all things to all people.

But the best lawyers recognize that all the research they have available to them doesn’t make up for a solid consultation with a Sherpa.²

A close friend called me a while back to ask if I would represent her husband in a med-mal case. Hell no, I told her. Sure, I know in general how to do it, but you need a whole lot more expertise than I can offer.

I referred it to a Sherpa, with a promise to second chair if it came to trial. Sure, I could have studied up, researched into the wee hours of every night for the next month, and probably gotten a paltry settlement. The wiser course of action was to look to my colleagues for help.

The first rule in the book—literally, the first—demands legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Going it alone isn’t going to reach that level. (I’m thrilled every day when I see so many colleagues on the Missouri Solo & Small Firm Listserv asking seemingly inane questions. They are only inane to someone who works in a particular arena regularly. To the rest of us, the questions are completely valid.)

The takeway: don’t be afraid to reach out for help. Refer it to a colleague. Ask for guidance from others. Call a Sherpa.

I don’t look much like anybody from Nepal (except perhaps this very good-looking yak)…

… but a client told me a while back that he “sure (was) glad to have a Sherpa along with us on this thing.” Before you tackle that issue in China or Germany or Mexico yourself, pick up the phone. Yes, I’m going to charge you, just as you’re going to charge your client. But your client will pay a whole lot less—and with significantly less risk.

¹Of course, ethical rules prohibit statements such as “I specialize in traffic tickets” or “I’m a probate specialist” because they might lead the public to believe we have more expertise than we really do. But let’s be real. When we refer a client, we ask each other, “who do we know who specializes in XYZ?” It makes far more sense for us to describe our specialty than to post some inane statement like “practice limited to tax matters”. It’s just plain silly, but we have to accept the limitation in light of disciplinary actions where somebody claimed expertise they didn’t actually have. I’ve taken to generalities like “I handle cross-border issues in litigation.” That indicates to people that I specialize in the stuff. I just can’t say I specialize in the stuff. The mind reels.

²Sherpa: a mountain guide in the Himalayas, relied upon by even the most experienced climbers for their skill, knowledge, and ability to function at high altitudes. Without a Sherpa named Tenzig Norgay (read: badass), Sir Edmund Hilary would have simply been simply Ed from Auckland, a frozen fellow halfway up the side of Mount Everest.

Photo credits: both public domain images via Wikimedia Commons, https://commons.wikimedia.org/wiki/File:Slos_on_a_farm.jpg and https://commons.wikimedia.org/wiki/File:Bos_grunniens_at_Letdar_on_Annapurna_Circuit.jpg respectively.

The Importance of Cultural Competence in Global Commerce

The Importance of Cultural Competence in Global Commerce

Sometimes as a blog comes together, memories sneak from the back of the mind to the front, and they prompt a quick Google search. Sometimes that search brings bad news. Nobody likes to see an obituary at the top of the results.

When I was twenty-two years old, fresh out of college, I snagged a job as a U.S. Senate staffer working in a remote field office in Iowa. Soon after I came on board, the organization’s Latino outreach coordinator took me to lunch. Rick had been quite active in local politics, and although the rest of the staff didn’t regard him as very productive (all of the in-state people handled constituent advocacy issues, and his case load was a short stack), he made some good connections with the growing Mexican community in Des Moines. I liked him immediately.

He wasn’t around for long after I came on board, so I had little chance to get to know him, but our lunch conversation that day had a profound impact on me. Although I had studied international affairs and fancied myself an astute observer of all things foreign, I had not connected the dots of cultural competence. I knew what it meant to be bilingual (I was fairly bilingual myself), but I had never heard the term bicultural.

Even in the midwest, at a time when a white/Anglo-Saxon/protestant ethos was still dominant, the minority population was growing rapidly. And I didn’t see it coming until that afternoon. Rick had grown up in two worlds: the WASP environment of central Iowa, and the Mexican immigrant community that clung tightly to its old traditions. He was bilingual and bicultural, comfortable navigating in both worlds, and in tune to how things worked in both.

Rick told me a story—whether true or not is immaterial—about a fellow who traveled to Mexico in the hope of landing a contract with a big company. He was invited to the home of the company president, who offered him a drink and a comfortable chair on the veranda. The president inquired about the American’s life story and family back home, but the Yankee was more focused on the art of the deal than on what he viewed as trivial small talk. Missing the cue, he tossed out a terse response about his parents, and immediately launched into his pitch. You should select my company as your U.S. partner, he told the president. I have several reasons why…

They hadn’t even sat down to dinner yet.

Of course, he didn’t get the contract. Even by American standards, his approach was too ham-fisted, too abrupt, too inappropriate. But even if he had been more gentle, the purpose of the dinner was not business—it was the establishment of a trusting relationship.

The first mistake in all of this was on the U.S. company’s part. They sent someone with literally no understanding of simple conversation, much less the folkways & traditions of Mexican business. The second mistake was the guy’s unwillingness to be anything but a highly-focused businessman.

In American business, it is often frowned upon to discuss family or personal history. Such conversation has no place in commerce, so the thinking goes. Prospective business partners really don’t care about your kid’s little league batting average and they don’t care about your mom’s flower garden (this, I think, is much to our detriment).

For Mexicans, however, family is at the center of everything.

Rick told me that, in the Mexican culture, business deals are concluded only after the parties get to know one another. Once they know about each other’s motivations, once they make an effort to understand where their counterparts came from. They aim first for trust.

And had the U.S. company sent a bicultural representative, or at least a culturally competent one, they might well have landed a multi-million dollar deal.

The takeaway is very simple. Last spring, I posted a list of Five Essential Things All Business Owners (and Their Lawyers!) Should Know Before Signing Global Contracts (five more things are coming, so stay tuned!). Missing from that list, and more important than any of those elements of skilled contract drafting, is a simple connection with the human beings on the other side of the deal. Cultural competence is critical in an expanding global economy.

“There are many things that companies that come from the same or similar cultures take for granted in a negotiation that simply cannot be assumed when negotiating across cultures. Between 60 percent and 80 percent of crossborder deals fail to meet financial expectations. The main culprit: cultural disconnects.” — Doris Nagel, June 10, 2016 (Global Trade Magazine)

It is critical to seek understanding of the culture in the society you seek to do business with (not just of the country, but the society). Skilled contract drafting is only part of the puzzle. That and solid cultural understanding can work together to prevent failed relationships altogether.

To finish the story… I hadn’t thought about Rick in ages. But when I started gathering my thoughts for this blog, our conversation kept popping up in my head. Google told me this morning that he’d passed away nearly two years ago. I wish I could thank him for that early lesson.

Photo: President Obama and Mexican President (then President-Elect) Peña Nieto. Official White House photo. And you’d better believe they talked about their kids.

That Hague Service Request isn’t as solid as you think.

That Hague Service Request isn’t as solid as you think.

That’s Kevlar® on that kid’s head. Technically, it’s called “a kevlar” (like your grandpa’s WW2 helmet was called “a steel”), but it’s made of Kevlar® (capital “K”) a little miracle fiber dreamed up by the gang at DuPont Chemical. It has saved thousands of lives in its five decades on the planet. Kevlar® is the stuff that makes helmets and bulletproof vests, well, bulletproof. But any hard-charging operator will tell you that if you don’t wear it correctly, it’s not as bulletproof as you need it to be.

I wrote a few months ago that defense counsel should always question the validity of Hague service that has (ostensibly) been effected on their foreign client. A request submitted to a foreign authority pursuant to Article 5 must be valid in the first place. And many times, they’re not valid—even if the Central Authority receiving them doesn’t know it or doesn’t care (most of them never inquire).

Usually, a Hague Certificate is the functional equivalent of Kevlar®. But if you don’t wear it correctly, it’s not as bulletproof as you need it to be. A Hague Certificate predicated on an invalid Hague Request is itself tainted. (Something about a “poisonous tree” tickles my memory from law school. Yes, I know—that was the exclusionary rule. This is different. But it’s the same relative idea.)

How do I know this? Well, a couple of years ago, I got a letter from the Ministry of Justice in Budapest, asking why I thought I was qualified to sign one of these things. Those pesky Hungarians, what with their bowls of paprika-laden goodness and their stunning trios of starlets, demanded to know the source of my authority.

Why, the United States’ declarations to Article 3 of the Hague Service Convention, I responded by email:

The persons and entities within the United States competent to forward service requests pursuant to Article 3 include any court official, any attorney, or any other person or entity authorized by the rules of the court.

(Emphasis mine.) Within 24 hours of my answer, I received a very collegial email from a fellow in the Ministry’s Department of Private International Law … Thank you, kind sir. We will proceed with your request forthwith.

But their query got me thinking… do they actually get invalid requests, signed by people who aren’t authorized?

As it turns out, yes. They do. Regularly.

Not long after my exchange with the Hungarians, a lawyer in Chicago emailed me to ask if the service that he’d had effected on a foreign defendant was valid. I scratched my head, wondering why he was unsure, but when he sent me the paperwork, it dawned on me. He had hired a process server who filled out a standard USM-94 and signed the request, citing FRCP 4(c)(2) as the basis for his authority. Horns and alarm bells started going off in my head.

You see, 4(c)(2) has nothing to do with Hague Requests whatsoever. It merely says that any adult non-party can serve process in a federal case. But the act of signing a Hague Request and the act of serving process are not the same thing. A foreign official actually serves process in response to a Hague Service Convention Request. The Federal Rules of Civil Procedure don’t govern who actually serves process in foreign lands (nor do state rules, for that matter)—they require deference to the laws of those foreign lands.

I’m adamant that lawyers should outsource the procedures that reduce the efficiency of their practice, and serving abroad is just such a procedure. But the outsourcing must be done advisedly, and that means ensuring that the Hague Request is signed by a licensed attorney or someone appointed by the court for just such a purpose.

Most professional process servers will refer out this kind of work. But if your process server assures you that it’s not a problem for a non-lawyer to sign a USM-94, you’ll want to call your malpractice carrier before you engage the process server. It’s a good idea to let them know in advance that you’re taking legal advice from a non-lawyer.

Photo credit: United States Marine Corps, photo ID 120601-M-BM244-004, via Wikimedia Commons. I’m pretty sure this kid is safer than any other human being on the planet… the Marines have his back.

This one is from DuPont’s own website, showing Kevlar® in its stock form. Neat stuff…