Making International Litigation Work For You
Posted February 28, 2019 in Process Service
By Victor Hertz, Legal Language Services
Most US attorneys seldom engage in litigation outside the United States. When they do, serving process (let alone evidence-taking) can be extremely intimidating. This is even more true for process servers.
The good news is that both international service of process (ISOP) and international evidence-taking can be made to work, both for your attorney clients and for you as their process server. Legal Language Services (LLS) effects international service day-in and day-out, and has been doing so for more than three decades. Given our experience and expertise, LLS can make these daunting tasks relatively easy, and in the process (pun intended), help cement your relationship with your legal clientele.
To this end, a little knowledge is a useful thing, especially when it helps you reassure your clients that you can meet their most difficult needs. With that in mind, I’d like to pull back the curtain a little, to give you a glimpse of what goes into successful international litigation.
What Is International Service of Process (ISOP)?
ISOP is the formal delivery of documents (e.g., summons and complaint) to an overseas defendant. Depending on the destination country, ISOP will usually proceed by either the Hague Service Convention or Letters Rogatory. While certain Hague signatory countries allow for agent service, most international service is ultimately governed by a local court in the destination country.
That’s one of the trickiest aspects of the Hague Service Convention: the framework for service allows for quite a bit of variation from country to country, and even between different jurisdictions within the same nation. This requires not only a detailed knowledge of the international treaty law, but also of national and local laws.
As many as five different jurisdictions can be involved in effecting a successful service. For example, to effect service in Germany, from an attorney in California, one needs to conform not only with California and US law, but also treaty conventions, German law and the law of the specific German state involved. Familiarity and experience dealing with the various systems, protocols and norms (not to mention common and not-so-common mistakes) certainly doesn’t hurt, either.
Importantly, if the destination country is non-English speaking (or if the defendant does not speak English), all documents being served must be properly translated and certified. Accurate translation is critical if you are to avoid the request for service being rejected.
The Nuances of Taking Evidence Abroad
LLS can also facilitate the service of a subpoena on an overseas witness. However, unless the target of a US subpoena is a US citizen, a subpoena will have little to no effect outside the US because of a lack of jurisdiction. So, when you have a client who wants to “serve a subpoena” on an overseas witness to obtain documents or depositions, a method other than literal service of a subpoena must be used. This other method is referred to as Taking Evidence Abroad.
This may appear to be a subtle distinction, but it can be the difference between a successful serve and a quashed one. In fact, that sums up a great deal of international litigation: without someone to help navigate the minutiae of interacting with foreign jurisdictions, what you don’t know can hurt you.
LLS assists US attorneys in all aspects of preparation and transmission of requests for taking evidence, including translation: the document(s) to be submitted must be translated if the request is to a court in a non-English-speaking country.
Thanks to our expertise, LLS recently assisted California firms in their efforts to obtain evidence in litigation involving medical equipment in Germany. Complications following open-heart surgery were traced back to the heart/lung pump oxygenators used during the procedure, and LLS helped to properly prepare and serve the documentation necessary to secure the use of relevant evidence in court.
What You Need to Know
The bottom line: International litigation is complicated and fraught with difficulties, requiring knowledge and familiarity with all the finicky rules and procedures unique to each jurisdiction. But if you can help your clients through a difficult situation, your market for domestic process service will expand.