Hague Convention

Part I: Going to Trial? Tips for Young Lawyers

If you are a young lawyer preparing for trial, or a more experienced lawyer who does not try cases often, there are some reading materials you should pick up. Specifically, Fundamentals of Trial Techniques by Thomas A. Mauet and Winning at Trial by D. Shane Read. Reading these two books should be part of your plan prior to going to trial. This is because both books provide critical information on basic trial techniques. In an effort to go beyond these books, however, the American Bar Association (“ABA”) has an opinion piece on trial tips for lawyers. Below are 10 tips to help you prepare and succeed:

● Make a “To Do” List. You should put together a list of tasks that must be done prior to trial. These should include deadlines, witness outlines, and motions to be filed. Do not forget practical items such as lunch arrangements and supplies needed. Be sure to assign a team member for each task. Likewise, review your list regularly to ensure you are not forgetting anything.
● Check Out the Courtroom. A visit to the courtroom where the trial will take place is important for several reasons. You can identify any practical issues with the space. Likewise, you can identify any technical issues ahead of time. While some courtrooms are equipped with the latest technology, others do not have any in place. Be sure to know how to use the technology available in the courtroom and address any other issues that may be present.
● Read and Reread Everything. Be sure to re-read all pleadings, exhibits, depositions, key cases, and important court rulings. Understand that the complaint and answer establish the burden of proof at a trial. Be sure to have a deep understanding of the allegations, evidence, and applicable law.
● Have a Theme. Remember, you are telling a story at trial. Think about the strengths and weaknesses of your side of the case as well as your opponent’s. Every part of the trial should tell your client’s story: the opening statement, witness examinations, visual aids, and closing argument.
● Prepare Jury Instructions Early. It takes more time than you realize to prepare jury instructions. This also takes legal strategy. Master the applicable law and ensure that your jury instructions are prepared well in advance of trial. Use your jury instructions as a guide for what needs to be proven at trial.
For more trial tips, go to the ABA’s website.

Ancillary Legal is an experienced part of the process, if you need help with your case’s service of process contact us today.

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Lawyer Suspended for Coaching Client During Virtual Trial Through Chat Function

An Arizona lawyer agreed to a two-month long suspension of his license after he was accused of coaching his client during a virtual trial by using the chat function on GoToMeeting, according to an article published by the American Bar Association (“ABA”) Journal.

 

The Situation

 

According to Law.com, the attorney was accused of messaging a client in a divorce proceeding during cross-examination by her estranged husband. The trial occurred in superior court Maricopa County, Arizona in September of 2020. The trial was conducted in a hybrid situation, where the judge was physically present in the courtroom and the other parties participated through GoToMeeting. The judge did not realize that the attorney was coaching his client until she had the opportunity to review the chat during cross-examination. According to the agreement for discipline by consent, the attorney was instructing the client to provide specific and substantive answers to questions being asked.

 

The judge instructed the attorney to stop, who agreed, but also claimed that the messages were the equivalent of him nodding or shaking his head in the courtroom while his client was being cross-examined in person.

 

Ethics Violations

 

The attorney conditionally admitted to violating several ethics rules including:

 

  • Fairness to opposing party;
  • Conduct prejudicial to the administration of justice; and
  • Conduct involving fraud, deceit, or misrepresentation.

 

All attorneys are subject to a “code of ethics,” no matter the jurisdiction under which their legal practice falls. Professional ethics is a code that governs the conduct of attorneys engaged in the practice of law and those who are not but are licensed. In fact, all professionals (attorneys or not) who work in the legal field are held to a certain level of professional ethics and duty toward the client, opposing party, court, and others. The code of professional conduct trumps all other duties, particularly when there is an ethical conflict of interests.

 

Every state has the responsibility of setting their own ethics rules that govern attorney behavior, which lay out guidelines for its state bar associations and attorneys seeking clarification on ethical choices they are confronting.

 

The judge ordered the attorney to complete the license suspension, which begins March 1st, plus a two-year probationary period, according to the final judgment. The attorney’s ethics lawyer indicated to Law.com that although his client has admitted inappropriate conduct and taken responsibility, he is also a young lawyer and the incident happened at the beginning of the pandemic when everyone was trying to figure out protocols with video proceedings.

 

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Breach of Jurisdiction Agreements: Damages Under German Law

This scenario likely comes before litigators and arbitration lawyers who work in the space of international law. An American client believes it may have a seven figure claim against a foreign contractual partner. That foreign contractual partner refuses to pay the claim. Not surprisingly, the U.S. company wants to enforce this claim, preferably through its “home court” in the American judicial system. The American company has more confidence in U.S. courts and the effort and cost is low, making an action before the foreign court of the foreign contracting party something to avoid at all costs.

 

This all seems practical and feasible until the lawyer looks at the contractual agreement between the parties to see if there is a provision regarding jurisdiction. What if the parties agreed that the place of jurisdiction is outside of the United States? Indeed, such clauses are quite common in international contracts. In practice, however, jurisdiction agreements do not necessarily prevent parties from bringing a lawsuit before a court other than the agreed upon tribunal. This is because a hoped-for advantage before a party’s homecourt outweighs the risk of a dismissal due to lack of jurisdiction, at least under U.S. procedural rules. This is because under the “American rule,” each party bears its own legal costs. But this is not the case under German law.

 

German Law and Jurisdiction

 

In Germany, the rule is “loser pays” under Sections 91 et. seq. of the German Code of Civil Procedure (ZPO). A recent decision by Germany’s Federal Court of Justice (BGH) in October 2019 ruled on the substantive legal consequences of jurisdiction agreements. Specifically, the BGH held that a lawsuit brought in violation of a jurisdiction agreement could justify a claim for damages. Not only does the BGH ruling apply to contracts between private parties, but it likely also applies to jurisdictional clauses contained in arbitration agreements.

 

The underlying case involved an American telecommunications company that sued a German telecommunications company, alleging breach of contract. The lawsuit was filed in the U.S. District Court in Washington, DC. The German company challenged the lawsuit based, in part, on the parties’ agreement to exclusive jurisdiction by German courts in Bonn, Germany. The U.S. District Court agreed with the German company, and dismissed the action due to lack of jurisdiction. By that time, however, fighting the lawsuit cost the German company $200,000.00. The American telecommunications company then filed suit in Bonn, Germany, and the German telecommunications company filed a counterclaim suing for attorneys fees and costs as damages due to the Washington, DC lawsuit.

For more information on serving in Germany, visit our site. 

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Part II: Japanese Government Objects to Service by Mail Under the Hague Convention

In our last post, we explained that the Convention on the Service Abroad of Judicial & Extrajudicial Documents in Civil or Commercial Matters (“Hague Service Convention”) is a multilateral treaty adopted on November 15, 1965 by member nations of the Hague Convention on Private International Law (the “Convention”). This Hague Service Convention created unified rules on several issues, including international service of process and has been ratified by 74 countries.

 

The Convention provides a streamlined way to effectuate international service of process through  each signatory nation’s Central Authority of each signatory nation. Until recently, it has been unclear as to whether service by mail is allowed and many plaintiff’s choose this method because it is faster than the methods provided under the Hague and other methods for non-signatory nations.

Unclear Position From Japan

 

The Japanese government did not object to service of process by mail at any point since signing the Hague Convention in 1970 until 2018. That being said, litigation with Japanese defendants did not clarify the issue until the United States Supreme Court (SCOTUS) issued a decision in Water Splash. In that case, a U.S. company sued a former employee in Texas state court. At the time of the lawsuit, the defendant was residing in Canada and was served by public mail, private mail, and email. The Texas state court entered a default judgment against the defendant for failure to respond. The former employee filed suit arguing lack of proper service and the parties argued whether the Hague Service convention allowed service of process by mail. The SCOTUS used the second interpretation of Article 10(a) and allowed service by mail.

 

Because the position of the Japanese government was not clear and courts could interpret that under the Hague service of process by mail is prohibited irrespective of whether a signatory objected to this method, using service by mail for Japanese defendants was a risk. Accordingly, many careful plaintiffs used service through the Japanese Central Authority (JCA) under the Hague Service Convention. Until the SCOTUS decision in Water Splash, the Japanese government had halted direct service of process by mail.

 

Bottom Line

 

After the SCOTUS decision in Walter Splash, it was more likely that service of process made directly to defendants located in Japan by mail would be permitted. Japan’s declaration, however, has annulled this alternative method of service. As a result, in contemplating future lawsuits against Japanese defendants, the parties to a deal may enter into negotiations where service under the Hague Service Convention is avoided by a potential plaintiff and in exchange the Japanese-stationed party can get favorable concessions in exchange for voluntarily accepting service of process. Indeed, an American party may request a Japanese counterpart to designate a United States agent for service of process in the event of a lawsuit in contract negotiations. Of course, the Japanese party should analyze the implications of agreeing to this.

 

More on this topic can be found here.

For info on service in Japan please go here. 

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Is Argentina a member of the Hague Convention?

Attorneys and paralegals frequently ask “Is Argentina a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, Argentina is a member.

This means that process service in Argentina must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, Argentina has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, Argentina’s central authority is the only recognized agency for service. Even further, Argentina has special requirements for their pleadings and transmittal of the service documents. Failure to comply with Argentina’s requirements means you will lose time and money.

When you have a service request for Argentina, make sure to hire someone that knows Argentina’s rules but also guarantees their translations. Argentina routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in Argentina . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to Argentina for accuracy to Argentina’s specific requirements. We are happy to help you serve documents in Argentina, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

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Is Vietnam a member of the Hague Convention?

Attorneys and paralegals frequently ask “Is Vietnam a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, Vietnam is a member.

This means that process service in Vietnam must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, Vietnam has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, Vietnam’s central authority is the only recognized agency for service. Even further, Vietnam has special requirements for their pleadings and transmittal of the service documents. Failure to comply with Vietnam’s requirements means you will lose time and money.

When you have a service request for Vietnam, make sure to hire someone that knows Vietnam’s rules but also guarantees their translations. Vietnam routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in Vietnam . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to Vietnam for accuracy to Vietnam’s specific requirements. We are happy to help you serve documents in Vietnam, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

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Is Sweden a member of the Hague Convention?

Attorneys and paralegals frequently ask “Is Sweden a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, Sweden is a member.

This means that process service in Sweden must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, Sweden has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, Sweden’s central authority is the only recognized agency for service. Even further, Sweden has special requirements for their pleadings and transmittal of the service documents. Failure to comply with Sweden’s requirements means you will lose time and money.

When you have a service request for Sweden, make sure to hire someone that knows Sweden’s rules but also guarantees their translations. Sweden routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in Sweden . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to Sweden for accuracy to Sweden’s specific requirements. We are happy to help you serve documents in Sweden, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

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Is Switzerland a member of the Hague Convention?

Attorneys and paralegals frequently ask “Is Switzerland a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, Switzerland is a member.

This means that process service in Switzerland must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, Switzerland has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, Switzerland’s central authority is the only recognized agency for service. Even further, Switzerland has special requirements for their pleadings and transmittal of the service documents. Failure to comply with Switzerland’s requirements means you will lose time and money.

When you have a service request for Switzerland, make sure to hire someone that knows Switzerland’s rules but also guarantees their translations. Switzerland routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in Switzerland . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to Switzerland for accuracy to Switzerland’s specific requirements. We are happy to help you serve documents in Switzerland, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

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Is Turkey a member of the Hague Convention?

Attorneys and paralegals frequently ask “Is Turkey a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, Turkey is a member.

This means that process service in Turkey must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, Turkey has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, Turkey’s central authority is the only recognized agency for service. Even further, Turkey has special requirements for their pleadings and transmittal of the service documents. Failure to comply with Turkey’s requirements means you will lose time and money.

When you have a service request for Turkey, make sure to hire someone that knows Turkey’s rules but also guarantees their translations. Turkey routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in Turkey . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to Turkey for accuracy to Turkey’s specific requirements. We are happy to help you serve documents in Turkey, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

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North Carolina Court Slams Attorneys’ Failure to Meet Discovery Deadlines

A North Carolina court recently granted in part and denied in part a defendant’s motion for sanctions against the plaintiff for missing deadlines to respond to discovery requests. Subsequent to the filing of the motion for sanctions, the plaintiff produced documents that were illegible and failed to comply with ESI protocol. Plaintiff also failed to conduct a search of email accounts and a mobile phone, both of which clearly had data that was responsive to the discovery requests.

 

The Discovery Dispute

 

The North Carolina court had issued a prior order imposing sanctions on the plaintiffs, which required payment of expenses and set a 30-day deadline to comply with the discovery. This deadline was imposed when the plaintiffs did not propose a date themselves to the court.

 

Although the plaintiffs missed the court’s deadline, the defendant agreed to a month extension. No production, however, actually occurred. Since the date of the discovery order instructing the parties to resolve the dispute, the plaintiffs had four months to produce. At that point, the plaintiffs claimed it would take even more time to review more than 160,000 pages of responsive material and remove duplicates. They also noted that the counterclaim defendants would need to review the production. When the plaintiffs requested more time, the court denied the request and instead ordered the parties to meet and propose an agreed-upon discovery schedule.

 

The plaintiffs missed the first deadline and disclosed that they could not follow the proposed schedule. They also noted they could no longer afford to hire an electronic discovery vendor due to expense and that they had to review 160,000 documents — not 160,000 pages.

 

The Court’s Decision

 

The court noted that the plaintiffs’ failure to timely produce documents on dates that they chose was unacceptable. Although the plaintiffs pleaded at court hearings that they were inexperienced in the complexities of ESI discovery and that they needed to coordinate discovery production with counsel for counterclaim defendants, the court did not find either one as a valid excuse. The court issued sanctions reasoning that the defendant suffered prejudice and to ensure respect for the judicial process.

 

According to the American Bar Association (ABA), there are several things an attorney can do to avoid mishandling discovery during litigation. These include:

 

  • Creating a realistic schedule and sticking to it;
  • Starting discovery as early as possible;
  • Dating, sourcing, and stamping each delivery of documents;
  • Preparing a privilege log; and
  • Understanding the new Federal Rules.

 

The case is State of North Carolina vs. AppyCity, LLC; Timothy S. Fields; Melissa Crete; and Daisy Mae Fowler a/k/a Daisy Mae Barber 2021 NCBC LEXIS 17 (N.C. Super. Mar. 3, 2021).

 

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Is The United Kingdom a member of the Hague Convention?

Attorneys and paralegals frequently ask “Is the United Kingdom a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, the United Kingdom is a member.

This means that process service in the United Kingdom must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, the United Kingdom has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, the United Kingdom’s central authority is the only recognized agency for service. Even further, the United Kingdom has special requirements for their pleadings and transmittal of the service documents. Failure to comply with the United Kingdom’s requirements means you will lose time and money.

Ancillary has decades of experience serving process in the United Kingdom . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its submissions to the United Kingdom for accuracy to the United Kingdom’s specific requirements. We are happy to help you serve documents in the United Kingdom, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

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Is France a member of the Hague Convention?

Attorneys and paralegals frequently ask “Is France a member of the Hague Convention?” The short answer is yes. However, the question is a bit more complicated than a simple yes.

The “Hague Convention” is a term that is used interchangeably for several different treaties that many countries are parties to. Overall, there are 42 “Hague Conventions”. The most commonly referred to treaty is the Service Treaty. The full name is The Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. So when asking about the Service Convention, yes, France is a member.

This means that process service in France must conform to the protocols and requirements of the Convention. This is mandated by international law and the Supreme Court of the United States. However, France has gone one step further and declares that the only valid service is service through Article 5 of the Convention. Thus, France’s central authority is the only recognized agency for service. Even further, France has special requirements for their pleadings and transmittal of the service documents. Failure to comply with France’s requirements means you will lose time and money.

When you have a service request for France, make sure to hire someone that knows France’s rules but also guarantees their translations. France routinely sends documents back to attorneys for improper translations. Ancillary Legal knows how to avoid this problem.

Ancillary has decades of experience serving process in France . We have relationships with their agents and know exactly what they need for service. Ancillary guarantees its translations and submissions to France for accuracy to France’s specific requirements. We are happy to help you serve documents in France, with competitive prices, attorney reviewed documents, and decades of knowledge to make sure your request is not returned for improper submission.

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