The Legal Advocate

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Monthly Archives: March 2016

United States v. Clark

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In NITA’s case file, United States v. Clark, Andre Clark has been charged with bank robbery after the Main Street Bank was robbed by three unknown individuals. An anonymous caller reported to 911 that he/she saw three individuals run from the bank and followed them. He/she reported the individuals then switched cars and stopped at a house. Based on this call, agents went to the reported house and searched it, finding a handgun, $12,000 dollars, and a mask. The three men at the residence, including Andre Clark were arrested.

The case file includes three witnesses for the State and two for the defendant. A DNA expert may be called by either party as well. The CD included contains exhibits in the file, bank surveillance photos, and aerial photos of the robbery location.

Retail Price: $38

Order now in Print 

Asked and Answered: Verónica González Rodríguez

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Last year, the International Society of Barristers (ISOB) provided NITA with a grant that, in part, “seeded” a program devoted to lawyers working in the public sector. Held in November 2015, the inaugural Excellence in Advocacy public service program afforded twenty public service lawyers the opportunity to attend a NITA Trial Skills program at nearly no cost to the lawyers’ agencies. Many of the Excellence program attendees had applied for a NITA scholarship in the past, but were declined for the simple reason that we didn’t have enough funds to meet the demand. So, we were delighted when our friends at the ISOB facilitated us in offering this special program, where we met Verónica González Rodríguez. She traveled to our headquarters in Boulder to attend the program last fall and recently spoke with us about how it enhanced her work at Servicios Legales de Puerto Rico in San Juan.

What’s a typical day in your office like?
It involves coffee. Lots of coffee. I spend most of my day researching. Besides litigation, we do quite a bit of community legal education. I get to develop and deliver workshops and clear language material to assist low-income people in understanding the law. Because my office handles a wide variety of legal issues—environmental, property, housing, economic development—there is no such thing as routine case.

What legal problems do you help your clients resolve?
I work at a specialized unit that exclusively handles group cases, such as those regarding poor communities or a number of individuals confronting the same legal issue. This generally means environmental justice cases or community displacement. For example, we are currently representing people who oppose the construction of a waste-to-energy facility in their already polluted neighborhood, as well as several communities fighting an attempt to expropriate their homes to build high-end residential/tourism developments.

How often are you in court?
Hardly ever, but it is increasing. Most of my caseload deals with administrative and appeal work. The Puerto Rico Appeals Court rarely has argumentative hearings, so I do most of my arguing in writing.

What is the most challenging party of working with the population you serve?
Sometimes, we don’t seem to speak the same language! I strongly believe in community lawyering and letting clients be main advocates for their cause. That often requires translating from legalese to everyday Spanish. We like to say putting the law in “rice and beans.” Often, I struggle doing just that. And my clients are to kind to say they don’t understand me.

What do you enjoy the most about your work?
Without a doubt, the best part of my job are my clients. They welcome me into their homes and trust me with some of the most important things in their lives. Every day I marvel at their ability to stay strong and even joyful while in front of the most difficult situations.

Is there a particular trial skill you thought you were good at but realized at the NITA program needed further development?
I had no confidence in my trial skills. At the time of the training, it had been six months since I had been in front of a judge! So, all my skills needed further development. If I have to pick one, I will say that I was more confident in my direct examination skills. Yes, I was one of those attorneys who thought that cross-examination was harder because I could always prepare a list of questions for my witness. I was wrong.

How do you think the Trial Skills program has an impact on your clients?
It has made me a more confident advocate—or at least look like a more confident advocate. I have a nervous personality, and feedback from the instructors has helped me channel that energy into what I am actually trying to do. I still have a long way to go, but they gave new tools to get me there. I even got a new, slightly weird trick to stop moving around! [Note: Veronica shared her trick with us, but we’re keeping it on the QT. It’s one of many secrets attendees learn at NITA programs that sharpen their skills in the courtroom.]

What’s the perfect day of activities for you in San Juan? What do you do, where do you eat, what do you see?
There are so many options on this tiny island—from lying on white-sand beaches to hiking through tropical forests. Me? You are most likely to find me in the city, probably walking on the cobbled streets of Old San Juan, in the company of good friends, eating something starchy and deep fried.

NITA would like to recognize the International Society of Barristers for the generous donation that made our Excellence in Advocacy public service program possible.

Enjoy this interview? Find more of our “Asked and Answered” interview posts with NITA personalities here on The Legal Advocate.

NITA Faculty Brian Johnson, Marsha Hunter Release New Book Edition

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theArticulateAdvocateIn the fully updated second edition of their groundbreaking book The Articulate Advocate: Persuasive Skills for Lawyers in Trials, Appeals, Arbitrations, and Motions, NITA faculty members Brian Johnson and Marsha Hunter teach attorneys how to develop a distinctly individual style adaptable to any advocacy challenge. While the first edition focused on trial lawyers, this new, second edition is expanded to be inclusive of jury trials, bench trials, mock trials, motions practice, appeals, and arbitrations.

The Articulate Advocate provides immediately useful techniques for advocates to:

• Channel that initial adrenaline buzz.
• Grab and hold the fact finder’s attention.
• Gesture while speaking, showing while telling.
• Speak in phrases and control your pace.
• Plan to forget, then recover with confidence.
• Practice productively to be primed to perform.

The new edition includes a new chapter on applying skills to the specific stages of trial, a section on working with electronic evidence, all new illustrations, and added appendices on delivery skills for arbitrations, motions, and appeals.

Hunter comments, “Trial skills are specific and teachable, and every great trial lawyer has to learn them. Brian Johnson and I observe lawyers in action, and then coach them one-on-one. We teach the stylistic, persuasive technique of speaking well while thinking as a trial lawyer in action: addressing fact finders, coping with objections, remembering the best arguments, and thinking on your feet. This new edition of The Articulate Advocate contains our best ideas, distilled after working with tens of thousands of lawyers over the years.”

Johnson and Hunter also collaborated on The Articulate Attorney: Public Speaking Skills for Lawyers and The Articulate Witness: An Illustrated Guide to Testifying Confidently Under Oath.

“This book is an essential part of the tool kit for anyone who really wants to be a skilled advocate. It is an investment in you, your career, and your clients.”
─Jami Wintz McKeon, Chair, Morgan Lewis and Bockius LLP

AUTHORS Brian K. Johnson and Marsha Hunter are communication consultants who train attorneys to speak confidently and persuasively in all settings. They are principals in Johnson & Hunter, Inc. (johnson-hunter.com), with legal clients in the United States, Canada, Australia, and Europe. For decades, they have been communication specialists for the National Institute for Trial Advocacy and they train all new Assistant United States Attorneys at the Department of Justice National Advocacy Center. Their in-house clients include firms that occupy the top 50 in annual lists as well as half of the Wall Street Journal’s “fearsome foursome” of litigation.

eBooks are available for purchase for your Kindle or iOs (Apple) eReader.

Service of Process Outside the United States: A Basic Overview

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written by NITA guest bloggers Tereza Horáková and Michael J. Dale

Over the last couple of decades, international commerce has experienced a dramatic boom. Such an environment quite naturally provides fertile ground for transnational litigation. For example, suppose that an American owner of a chain of sports bars visits the hidden gem of Central Europe, the Czech Republic. Stunned by the delicious taste of the local “liquid gold,” she enters into a long-term contract for shipments of Czech beer, with the intent to sell the beer in her sports bars. Regretfully, the Czech contractor, albeit experienced in the beer export trade, turns out to be an unreliable partner more interested in tasting his product than conducting business. After the American owner wires the agreed payment, the shipment of beer never arrives. The American sports bars owner decides to initiate litigation in the U.S. court against the contractor, who resides in the Czech Republic.

Leaving aside the questions of subject matter jurisdiction and personal jurisdiction, one of the first crucial issues she must resolve is the question of how to serve process on the foreign defendant outside the United States. The term service of process, of course, refers to the requirement to duly notify the defendant of the initiated litigation with a copy of the complaint (or its equivalent) filed by the plaintiff and a summons issued by the court clerk commanding the defendant’s appearance[1]. In fact, proper service of process in compliance with constitutional and statutory requirements is a necessary prerequisite to establish jurisdiction[2]. Only with proper service may the court be sure that the defendant has been made aware of the claims against it, and of the need to answer those charges in order to avoid entry of a default judgment. Accordingly, all plaintiffs must at one point or another deal with the issue of service of process.

A key question that this blog post discusses is, how do you do that? This post provides a basic overview of the most utilized methods of service of process on defendants outside the U.S. In turn, it analyzes the main issues related to each of the described methods in federal and state proceedings.

Federal Proceedings
The rules governing service of process in federal proceedings are found in Rule 4(f) of the Federal Rules of Civil Procedure. By a cross-reference, the framework set out in Rule 4(f) applies to both natural persons and legal entities[3].

The primary method of service is by any internationally agreed means of service reasonably calculated to give notice, such as that authorized by the Hague Convention on the Service of Judicial and Extrajudicial Documents[4]. In case there is no internationally agreed means, the process is to be served by a method that is reasonably calculated to give notice, such as in a manner prescribed by the law of the foreign country where the service is to be executed, or as directed by the respective foreign authority in response to a letter rogatory, or by personal delivery or by mail requiring a signed receipt, provided that such ways are not prohibited by the foreign country’s law. Lastly, Rule 4(f) allows any other means ordered by the U.S. courts which are not prohibited by international agreements.

Internationally Agreed Upon Means of Service
The internationally agreed means include two important multilateral treaties, the Hague Convention and the Inter-American Convention. As ratified international treaties, the Supremacy Clause grants them the status of the supreme law of the land[5]. Whether the respective international treaty automatically preempts all other methods of service must be determined on a case-by-case basis based on the language of the treaty[6].

The Hague Convention
Possibly the most important platform for service abroad is the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter Hague Convention)[7]. Its popularity may be attributed to its efficiency, with 66 percent of the requests being executed within two months (hereinafter Outline)[8]. As of December 2015, there were sixty-nine signatories including the U.S. and the Czech Republic[9].

For the Hague Convention to be applicable, the document to be transmitted from one signatory state to another must relate to a civil or commercial matter and the address for the recipient of the service must be known[10]. U.S. courts have interpreted the language in the Hague Convention as exclusive[11]. Therefore, if all of the requirements are met the convention must be applied and preempts the use of all other methods of service[12].

The Hague Convention provides one main and several alternative channels of transmission of the documents to be served. The main channel is from the judicial officers of the requesting country (referred to as “state”) to the so-called Central Authority of the receiving country. All signatory countries must denominate a Central Authority that both receives and executes requests for service of process[13]. To make a request, one must file the Hague Convention Form USM-94 available in any U.S. Marshals Service office together with two copies of the documents to be served (hereinafter Practice Note)[14]. The request can only be forwarded to the Central Authority (in the U.S., it is the Department of Justice) from what is described in the convention as a “competent authority.”[15] In the U.S., the competent authority includes any court official or attorney[16]. The service rendered by the Central Authority is generally free of charge, but some jurisdictions require a translation of the documents to be served[17].

The Hague Convention further furnishes several alternative channels of transmission, most importantly the international postal channels and direct service through an agent of the receiving state[18]. There is a split in the U.S. courts as to whether the postal channels relate only to judicial documents such as motions or to service of process as well. Ultimately, one must be cautious to check the position of the circuit where the action is filed[19]. Service through an agent means service through the judicial officers, officials, or other “competent persons” of the state of destination[20]. The latter phrase has been construed as anyone who would be competent to serve process within the destination state under that state’s law[21].

Once the service is executed, the chosen agent is required to provide the party requesting the service with evidence of the service[22]. The party must file the evidence with the court where the litigation is pending as a proof of extraterritorial service[23]. The procedure for filing the proof is dependent on local rules of procedure and varies from state to state[24].

Inter-American Convention
The other pivotal international treaty is the Inter-American Convention on Letters Rogatory and its Additional Protocol, adopted in 1975 in Panama (hereinafter Inter-American Convention)[25]. The Inter-American Convention constitutes an important supplemental means of service in countries of the Central and South Americas, which are mostly not a party to the Hague Convention. The Inter-American Convention constitutes a non-exclusive method of effecting service between its signatories[26].

Like the Hague Convention, the Inter-American Convention applies in proceedings in civil and commercial matters[27]. However, the Inter-American Convention allows the signatories to extend its applicability to other areas as well[28]. So far, only Chile has made use of this opportunity and broadened the scope to cover criminal and administrative cases[29].

With respect to channels of transmission, the Inter-American Convention is limited to letters rogatory—in other words, official requests from one state to another to assist with the administration of justice[30]. All signatories must establish a Central Authority for receiving requests and executing the service[31]. A party wishing to make a request for service must file Form USM-272 and 272A and the documents to be served, all in three copies. The party must obtain the seal and signature of the court clerk that issues the process, as well as the signature and stamp of the Central Authority of the country in which the court sits, which poses an extra financial burden. Furthermore, all documents to be served must be translated into the language of the destination country[32].

The Inter-American Convention has been subject to criticism. Some states have failed to designate Central Authorities at all, while others claim not to receive requests transmitted by the U.S. Central Authority[33]. Moreover, the process is said to take up from six months up to a year—that is, when it actually works.

Other Means
When there is no applicable international treaty or when the treaty is non-exclusive (such as the Inter-American Convention), service may be executed by any of the procedures under federal Rule 4(f)(2) and Rule 4(f)(3), provided they are reasonably calculated to give notice of the service.

  • Law of the foreign country – Rule 4(f)(2)(A). Generally, a plaintiff cannot choose a method of service in a foreign country that violates the law of that country[34]. It is advisable to choose a method that conforms to the local practice.
  • Letter rogatory or letter of request – Rule 4(f)(2)(B). Letters rogatory are the oldest bilateral procedure for obtaining information in a foreign jurisdiction[35]. Also known as letters of request, they are formal requests from a court in which an action is pending to a court in a foreign country seeking international judicial assistance[36]. In some countries, service by letters rogatory is the only recognized method of service. Unlike the above mentioned international conventions, letters rogatory may accommodate service in criminal proceedings as well. However, letters rogatory are a time-consuming, cumbersome process and need not be utilized unless there are no other options available, given the routine time delays of up to a year or more.
  • Personal service by agent – Rule 4(f)(2)(C)(i). Provided that the foreign country’s law permits such a method, personal service by a local agent may prove to be the most expeditious way of service. Lists of persons available for service abroad are accessible at the U.S. embassies and consulates. Due to the intricacies of various foreign legal systems, it is advisable to consult with a local attorney.
  • Service by mail – Rule 4(f)(2)(C)(ii). Provided that the foreign country’s law permits such a method, service by mail with a signed receipt is a viable option in many countries in the world.
  • Court-ordered means – Rule 4(f)(3). The courts may order such methods of service that are not prohibited by international agreements even if not explicitly recognized by them.

Service in State Court Proceedings
In case the American owner of the sports bars decides to commence the action in a state court, the analysis is somewhat similar. The preemptive powers of international treaties apply to proceedings in the federal courts as well as state courts[37]. If there is no applicable treaty, the respective state law where the action is filed governs[38]. Naturally, the procedural rules regarding extraterritorial service widely vary from state to state.

For example, New York, California, and Florida laws allow process to be served outside of the state in the same manner as service is made within the state[39]. In addition, New York law allows process to be served outside the state by either a New York resident who is authorized to serve process within New York or anyone authorized to serve process under the laws of the foreign country[40]. California supplements the regular methods by service by first-class mail, postage prepaid, requiring a return receipt together with a presumption of delivery on the tenth day after such mailing[41].

Conclusion
For more detailed discussion of the methods of service of process outside the United States, further information may be found at the websites of the Department of State, Hague Convention, or the Practical Law Company Practice Note.

————————————————————————————————————————-

Tereza Horáková is a graduate of Charles University, Prague, Czech Republic, and a dual degree student at Nova Southeastern University College of Law where she is a research assistant to Professor Michael J. Dale. She can be reached at tereza@hotmail.cz.

Michael J. Dale has been a member of the faculty at Nova Southeastern University Shepard Broad College of Law since 1985, teaching courses in family and juvenile law, and in the family and juvenile clinic. Professor Dale teaches at NITA programs in both public and in-house settings. In 2009, he received the Robert Oliphant Award from NITA for his service to the organization. An active litigator, he has been a consultant to federal and state agencies on civil rights issues and to law firms on litigation matters. He can be reached at dalem@nova.edu.

 

[1] Legal Information Institute, Service of Process, https://www.law.cornell.edu/wex/service_of_process (last visited Feb. 12, 2016).

[2] Mississippi Pub. Corp. v. Murphree, 326 U.S. 438, 444-45 (1946).

[3] Fed.R.Civ.Pro. 4(h)(2).

[4] Fed.R.Civ.P. 4(f).

[5] U.S. Const. art. VI, cl. 2; Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699 (1988).

[6] Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 640-42, (5th Cir. 1994).

[7] Hague Service Convention, Nov. 15, 1965, 20 U.S.T. 361.

[8] Outline: Hague Service Convention, https://assets.hcch.net/docs/f4ccc07b-55ed-4ea7-8fb9-8a2b28549e1d.pdf (last visited Feb. 12, 2016).

[9] Status Table of the Contracting Parties, https://www.hcch.net/en/instruments/conventions/status-table/?cid=17 (last visited Feb. 12, 2016).

[10] Outline, supra, n. 8, at 1.

[11] Shenouda v. Mehanna, 203 F.R.D. 166, 170 (D.N.J. 2001).

[12] Eli Lilly & Co. v. Roussel Corp., 23 F. Supp. 2d 460, 470 (D.N.J. 1998).

[13] Hague Convention, supra, n. 7, at art. 2.

[14] Practical Law Company, International Litigation: Serving Process outside the US, Practice Note, http://www.proskauer.com/files/News/5b04a3dd-34ab-40f4-a64f-3bc52468277a/Presentation/NewsAttachment/db2a546c-d01c-4ce3-815a-43df368f05c8/Proskauer_122011_Practical%20Law%20Company_Scullion_Berkowitz_McNew_International%20Litigation_Serving.pdf(last visited Feb. 12, 2016), at 8.

[15] Hague Convention, supra, n. 7, at art. 3.

[16] USA Central Authority and Practical Information, https://www.hcch.net/en/states/authorities/details3/?aid=279 (last visited Feb. 12, 2016).

[17] Outline, supra, n. 8, at 2; Hague Convention, supra, n. 7, at art. 12.

[18] Hague Convention, supra, n. 7, at art. 10.

[19] Compare Brockmeyer v. May, 383 F.3d 798, 803 (9th Cir. 2004), with Bankston v. Toyota Motor Co., 889 F.2d, 172, 173-74 (8th Cir. 1989).

[20] Hague Convention, supra, n. 7, at art. 10(c).

[21] Koehler v. Dodwell, 152 F.3d 304, 307-08 (4th Cir. 1998).

[22] Hague Convention, supra, n. 7, at art. 6.

[23] Fed.R.Civ.P. 4(l)(2).

[24] Practice Note, supra, n. 14, at 4.

[25] Inter-American Convention on Letters Rogatory, Jan. 30, 1975, S. Treaty Doc. No. 27 (1984), reprinted at 28 U.S.C. § 1781.

[26] Hein v. Cuprum, S.A. de C.V., 136 F. Supp. 2d 63, 70 (N.D.N.Y. 2001).

[27] Inter-American Convention, supra, n. 25, art. 2.

[28] Id. at art. 16.

[29] Inter-American Convention on Letters Rogatory, General Information on the Treaty, http://www.oas.org/juridico/english/sigs/B-36.html (last visited Feb. 12, 2016).

[30] Ralph Folsom, Principles of International Litigation and Arbitration (Concise Hornbook Series), 323 (1st ed. 2015).

[31] Practice Note, supra, n. 14, at 8.

[32] Inter-American Convention, supra, n. 25, art. 5.

[33] Practice Note, supra, n. 14, at 8.

[34] David J. Levy, International Litigation: Defending and Suing Foreign Parties in U.S. Federal Courts, 6 (2004).

[35] Compulsion Over Comity: The United States’ Assault on Foreign Bank Secrecy, 12 NW. J. INT’L L. & BUS. 454, 471.

[36] Service of process, https://travel.state.gov/content/travel/en/legal-considerations/judicial/service-of-process.html (last visited Feb. 12, 2016).

[37] U.S. Const. Art. VI, cl. 2.

[38] Practice Note, supra, n. 14, at 10.

[39] N.Y. C.P.L.R. 313; West’s F.S.A. § 48.194; West’s Ann. Cal. C.C.P. § 415.40.

[40] N.Y. C.P.L.R. 313.

[41] West’s Ann. Cal. C.C.P. § 415.40.

March 2016 Executive Director’s Letter: Advice and Democracy

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Lockwood_KarenAs ED, I am dedicated, as is NITA, to non-partisan activity and viewpoints. This letter is apolitical. It supports our stable, three-branch form of government.

I imagine that you, as am I, are meditating almost involuntarily on the following question:

“How did we get here?”

. . . to the Senate’s possible no-action in its constitutional role to “advise and consent” after a president nominates a new Supreme Court justice.

. . . to a presidential election cycle where the sparring seems abstract and “values” oriented, with not much of a nod at good governance or even the principles of a balanced, three-branch, democratic government.

. . . to the U.S. courts facing assumptions from the citizenry that judges vote their politics, whereas in truth judges and Justices apply the rule of law and guard the fact finding with rules of due process?

As I listen to the news, I reflexively return to two words. Education and Internet.

Education is good. We need more of it on the subject of how our democracy works. How else can citizens equip themselves to resist explosive campaigning about vague values du jour and exaggerated promises of surprising actions? A decade ago, Justices Breyer, Souter, and O’Connor mutually raised the alarm on the need for citizen education. They fanned out to urge lawyers to be ambassadors for the U.S. Constitution. The ABA joined them, too, with its citizen education initiatives in public schools. Lawyer groups did as well. But that education requires sustained energy, evaluation, and focus. Our national focus diverted to the recession, budgets tightened, and we swung our energy in different directions.

The Internet is a tool. But it tempts us to shop for opinions of others in places where the readers are already in agreement without a contrary voice. It teaches young learners to seek information in sound bites and summaries that do not require deep thinking. It creates seeming consensus without personal interaction by those who think they agree, and worse yet, without consideration of those who might disagree. So we create a national habit of yelling at those who do not consent to agree with our unexamined “values.” We argue to win, not to learn or to listen or to move forward.

My letter today is a call to the legal community to reach out and teach our communities about our democracy. To show that its three branches are given allocated responsibilities, each having checks and balances on the other two. If we allow each branch to work rather than halting its process, accusing it of imagined wrongs, or resorting to angry rhetoric, the government can be trusted to govern effectively.

How did we get here? I don’t really care.

How do we draw back from it? The lawyers across the state bars can make a difference. We have a few months left. Let’s do it.

Karen_ShortSig

 

 

Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy

NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system. NITA's Goals are to:
  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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