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Law School Applications on the Upswing

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The Washington Post attributes this past year’s uptick in law school applications to a “Trump bump” that has renewed recent college graduates’ interest in becoming lawyers:

In December, the [Law School Admission Council] reported that the number of applicants was up 12 percent and applications were up 15 percent over the same time last year. Those numbers held steady as of mid-January, according to more recent data.

In another indicator of the upward trend, nearly 28 percent more LSAT tests were administered in December 2017 than December 2016, as U.S. News and World Report noted last month.

. . .

“[President] Trump has had a galvanizing effect on may prospective students, both Democrat and Republican,” Dave Killoran, chief executive of the admissions consulting firm PowerScore, told U.S. News and World Report. “We see our students discussing specific policies far more frequently than in the past, and the depth of feeling they are expressing is greater than ever before.”

No matter where you lie on the political spectrum, this is good news for NITA.

Service of Process Outside the United States Updated: Water Splash and its Progeny

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written by NITA guest blogger Tereza Horáková

On May 22, 2017, one year after publication of our blog post[1] on how to serve process outside the United States, the United States Supreme Court resolved a conflict among the lower courts concerning an important practical service question: Does the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter the Hague Convention) prohibit service by mail under Article 10(a)? In Water Splash, Inc. v. Menon, the Supreme Court held that the Hague Convention indeed does not prohibit service by postal channels[2]. This note provides a brief analysis of the Supreme Court decision and an overview of the case law that followed.

Water Splash, Inc. sued its former employee, Tara Menon, in a state court in Texas, alleging that Ms. Menon had begun working for a competitor while still employed with Water Splash, Inc. Ms. Menon resided in Canada at the time, and Water Splash, Inc. effectuated service by mail after obtaining permission to do so from the trial court. Eventually, the trial court entered a default judgment for Water Splash, Inc. due to Ms. Menon’s refusal to answer or otherwise enter an appearance. Ms. Menon moved to set aside the default judgment, arguing that she had not been properly served. The trial court denied Ms. Menon’s motion, only to be overturned on appeal. After the Texas Supreme Court denied discretionary review, the United States Supreme Court granted certiorari to resolve a broader conflict among lower courts turning on the interpretation of the Hague Convention.

The Supreme Court first analyzed the key language of Article 10(a) of the Hague Convention, which states that “[p]rovided the State of destination does not object, the present Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad.” Ms. Menon argued that because subsection (a) uses the word “send” as opposed to expressly referring to service as in subsections (b) and (c) of Article 10, this textual difference implies that sending documents through postal channels does not equal service. The Supreme Court rejected this argument as having no foundation in the text of the treaty or anywhere else.

First, the Supreme Court noted that the scope of the Hague Convention is limited to service of documents and Ms. Menon’s interpretation would render Article 10(a) meaningless, which goes against fundamental principles of contract interpretation. Second, treaty interpretation must consider the context in which a particular treaty provision is used. The structural placement of Article 10(a) strongly suggests that it pertains to service of process, considering that the immediately following subsections (b) and (c) expressly refer to “service of judicial documents.” Last, the Supreme Court considered extratextual sources shedding light on the meaning of Article 10(a). The Hague Convention’s drafting history, the views of the Executive, and the views of many other signatory countries such as Canada, Italy, and United Kingdom all concluded that the Hague Convention allows service via postal channels.

However, the Supreme Court’s unanimous decision authored by Justice Alito also cautioned that neither does the Hague Convention affirmatively authorize it[3]. In fact, the Hague Convention permits service by mail only if two conditions are met: 1) the receiving state has not objected to service by mail, and 2) service by mail is authorized under otherwise-applicable law[4]. For affirmative authorization of service by mail and any requirements as to how that service is to be accomplished, one must look to the law of the forum in which the suit is filed[5].

Several courts have already cited Water Splash and utilized its holding. For example, the technical differentiation between permission and affirmative authorization under the Hague Convention proved fatal to the plaintiff in Fed. Ins. Co. v. Cessna Aircraft Co[6]. In that case, the plaintiff argued that it properly served the defendant by international mail pursuant to Fed.R.Civ.P. 4(f)(1) and (2). Rule 4(f)(1) provides for service by an internationally agreed means of service, “such as those authorized by the Hague Convention” (emphasis added). However, Water Splash held that the Hague Convention does not affirmatively authorize service by postal channels, but merely permits it only if the otherwise-applicable law authorizes it. Accordingly, the district court held that plaintiff had not effectuated service under Rule 4(f)(1), because the plaintiff served the defendant by means not authorized by the Hague Convention, but merely permitted by it[7]. The district court then analyzed whether the plaintiff served the defendant under Rule 4(f)(2), which applies there is no internationally agreed means, or an international agreement allows but does not specify other means (as here under the Hague Convention); however, the plaintiff failed to comply with the requirements of Rule 4(f)(2) as well.

In Moore v. Toyota Motor Corp[8]., the defendant was not properly served because the plaintiff did not comply with the second prong of the test for service by mail under the Hague Convention—i.e., that service by mail is authorized by otherwise-applicable law. Specifically, the plaintiff attempted to serve the defendant in Japan by regular international mail via United States Postal Service without a proof of delivery on the recipient. However, no provision of the Federal Rules of Civil Procedure affirmatively authorizes service in a foreign country by regular mail without a proof of delivery. Therefore, the district court found that the plaintiff failed to properly serve the defendant.

In a similar case, In Re LLS Am., LLC[9], the plaintiff served the defendant via the clerk of court, who certified “that a copy of the Summons and Complaint was mailed by international registered mail with Returned Receipt for International Mail” to both defendants. This method of service is affirmatively authorized under Fed.R.Civ.P. 4(f)(2)(C)(ii) and, therefore, the district court found that the plaintiff properly served the defendant via postal channels under the Hague Convention.

In conclusion, the Supreme Court has made clear that the Hague Convention does not prohibit service of process by mail. However, as the progeny of Water Splash has shown, one must be cautious to comply with the two-prong test for service of process under the Hague Convention as set out in Water Splash.

Tereza Horáková is an attorney in Miami, where she practices commercial litigation, probate administration and litigation, and estate planning. Ms. Horáková graduated from Nova Southeastern University, College of Law, and Charles University Faculty of Law in Prague, Czech Republic. While at Nova, Ms. Horáková was a research assistant to Professor Michael J. Dale, whom she thanks for his review of this article. She can be reached at tereza@hotmail.cz.


[1] “Service of Process Outside the United States: A Basic Overview,” by Tereza Horáková and Michael J. Dale, posted on March 23, 2016. Available at http://blog.nita.org/2016/03/service-process-outside-united-states-basic-overview/.
[2] While the Hague Convention does not define the term postal channels, the case law generally construes the term to mean postal mail, such as the United States Postal Service. However, the Hague Convention does not define what type of mail qualifies as use of postal channels. A Special Commission of the Convention stated in 2003 that service through private courier is the equivalent of service through postal channels (see Conclusions and Recommendations Adopted by the Special Commission on the Practical Operation of the Hague Apostille, Evidence and Service Conventions, at ¶ 56 (Oct. 28–Nov. 4, 2003)).
[3] Justice Gorsuch took no part in the consideration or decision of the case.
[4] The countries that have objected to the service of process via postal channels include, among others, the Czech Republic, Germany, and Argentina.
[5] Brockmeyer v. May, 383 F.3d 798, 803–04 (9th Cir. 2004) (“Article 10(a) does not itself affirmatively authorize international mail service. It merely provides that the Hague Convention “shall not interfere with” the “freedom” to use postal channels if the “State of destination” does not object to their use. As the Rapporteur for the Convention wrote in explaining Article 10(a), “It should be stressed that in permitting the utilization of postal channels, . . . the draft convention did not intend to pass on the validity of this mode of transmission under the law of the forum state: in order for the postal channel to be utilized, it is necessary that it be authorized by the law of the forum state.”)). The Supreme Court cited Brockmeyer in Water Splash, 137 S. Ct. at 1513 (2017).
[6] Fed. Ins. Co. v. Cessna Aircraft Co., 2017 WL 2905576 (D. Kan. July 7, 2017).
[7] The United States District Court for the District of New Jersey has reached the same conclusion in an unpublished opinion in Trzaska v. L’Oreal USA, Inc., 2017 WL 6337185 (D.N.J. Dec. 12, 2017), where the plaintiff unsuccessfully attempted to effectuate service under Rule 4(f)(1) by mailing a copy of the summons and complaint by way of the United States Postal Service’s “Priority Mail Express International.”
[8] Moore v. Toyota Motor Corp., 2017 WL 5257050 (E.D. La. Nov. 13, 2017).
[9] In Re LLS Am., LLC, 2017 WL 3013260 (E.D. Wash. July 14, 2017).

New York Considers Overhaul to State Criminal Code

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During his State of the State address last month, New York Governor Andrew M. Cuomo put forward a five-prong measure that would reform the state’s criminal justice system.

With the goals of “removing critical barriers, reaffirming our beliefs in fairness, opportunity, and dignity, and continue our historic progress toward a more equal society for all,” Governor Cuomo proposed legislation that would:

  • “Eliminate monetary bail for people facing misdemeanor and non-violent felony charges;
  • “Expand the discovery process to include disclosure of information in a timely manner including evidence and information favorable to the defense; intended exhibits; expert opinion evidence; witnesses’ criminal history information; and search warrant information;
  • “Reduce unnecessary delays and adjournments in court proceedings, requiring that people held in custody—not just their attorneys—consent to a speedy trial waiver that must be approved by a judge and ensure that defendants are not being held unnecessarily when the prosecution fails to meet deadlines;
  • “Ban all asset seizures, unless an arrest is made and enhance reporting requirements for local law enforcement and District Attorneys; and
  • “Improve the re-entry process for individuals transitioning from incarceration to their communities.”

If passed, the measures would be a significant update to the New York State criminal code. The laws of discovery have remained largely unchanged since 1979.

Photo by Metropolitan Transportation Authority / Patrick Cash (via Wikimedia Commons).

Asked and Answered—Tessa L. Dysart

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One could say “be careful what you wish for” has meaning for author Tessa L. Dysart. Three years ago, she emailed our Publications Department to ask whether a third edition of Winning on Appeal, one of her favorite texts for teaching, was in the works at NITA—and before she knew it, the old manuscript was on her desk ready for her to do it herself. The original author, the eminent Judge Ruggero Aldisert of the Third Circuit, had passed away just a few months before Tessa’s inquiry, and the question of who would carry on his legacy through this book was yet unsettled. But with her background in legal writing, intimate familiarity with the federal courts, and robust work ethic, Tessa was a dream come true for NITA and a joy to work with on the update. The third edition of Winning on Appeal: Better Briefs and Oral Argument, co-authored with Judge Leslie Southwick of the Fifth Circuit, came out in time for the start of the 2017 school year. Then, just when Tessa thought she was done writing for us for a while, along came “Asked and Answered” to ask for just a little more. As always, we’re so grateful she obliged.

How did you first meet “Auntie NITA”?
Through teaching. Before I became a full-time professor, I taught Appellate Advocacy as an adjunct. The school used the second edition of Winning on Appeal as the textbook. Right after I agreed to teach the course, I sat down over a week or so and read the book, which I thought was great. It wasn’t until later in my teaching career that I fully understood the unique role that NITA plays in educating attorneys and publishing practitioner guides, as opposed to just traditional textbooks.

Winning on Appeal was originally written by the legendary Judge Aldisert of the Third Circuit and is as near a legacy book as any that NITA publishes. What was it like for you to undertake the update of this book?
Daunting, to put it mildly. The book is a classic. We wanted to be sure that the update honored Judge Aldisert’s legacy while still providing the update the book needed.

How did you make the acquaintance of your co-author, Judge Southwick?
I met Judge Southwick during his Fifth Circuit confirmation process while I was working at the Department of Justice in the Office of Legal Policy on judicial nominations. I was struck by his demeanor, character, and perseverance through that difficult process. When it came time to find a judge to help with the book update, I knew that he would be an excellent choice. Not only is he already a published author, he has served as both a state and federal appellate judge.

You studied in Moscow on a Fulbright. What was that experience like?
Amazing! One of the purposes of the Fulbright program is cross-cultural awareness. I immersed myself in Russian culture. Despite the stereotypes, the Russian people are really quite warm, and they are thrilled when we take an interest in their language and culture. I made it a point to visit museums, experience the theater and ballet (I lost count of how many versions of The Nutcracker I saw while I was there), and eat all the food (well, almost all of the food).

On a more serious note, I was in Russia over 9/11. The outpouring of sympathy and support from the Russian people to Americans in the city was really touching.

How did you become interested in the law, and later teaching?
As a middle child, I always had a strong sense of “justice,” which I usually defined as being able to stay up later than my younger sister and sit in the front seat when my older brother wasn’t in the car. As I grew up, I became better aware of true injustice in our society. It was that desire to fight for what was right that led me to law school. As far as teaching, I sort of fell into that career when my husband, a veteran of the Marine Corps, decided to go to law school and we left the D.C. area. Once I started teaching I realized that it was my calling.

What is your favorite thing about your career?
Definitely the students. I love investing in their lives, seeing them learn, and hearing about all of the amazing things that they do in their careers. I was so fortunate to have amazing professors and mentors in law school and early in my career. It is an honor to fill that role in the lives of my students.

What is something you like to do the old-fashioned way?
Travel. I love a good road trip!

What’s the best vacation you’ve ever taken?
After my Fulbright, I traveled around Europe for a few weeks. I visited about eight countries in three weeks. It was a whirlwind of an adventure, but I got to see most of the big sights.

What movie can you watch over and over without ever getting tired of?
Elf, much to my husband’s chagrin. It came out my 1L Christmas. My sister and I saw it in the theater. She had seen all of the previews, while I, of course, had been living in a 1L bubble. It was so funny to see her quote all of the funny preview lines. Since then it has been an annual favorite for me.

What’s your favorite breakfast?
Gluten-free pancakes that don’t taste gluten-free.

During what moments in life do you feel most at ease and in your element?
When I am with family, especially visiting my family in Oregon. I can put away the business attire and pull out the jeans and flannel.

What’s your secret talent?
Home repair. Our first house was a real fixer-upper and we were newlyweds without a lot of money. I learned that I am really good at painting trim and cutting in the walls and ceiling.

Coffee or tea?
Coffee in the morning, and tea in the afternoon (preferably rooibos).

iPhone or Android?
Definitely Android—the only “i” products in our house are a few ancient iPods. But, I also love my Microsoft Surface. It is great for travel and grading papers.

Early bird or night owl?
Most of my life I have been a night owl. But, in Arizona we don’t observe Daylight Savings Time, so I think that I need to transition to being an early bird. It gets dark so early here.

Call or text?
Email. I never caught on to the texting phase.

Rain or shine?
It doesn’t rain in Arizona (although it does monsoon the month of July, leaving the desert really quite beautiful).

And finally, what is your motto?
I have adopted the motto of my undergraduate institution, Willamette University: “Not unto ourselves alone are we born.”

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

J.C. Lore in Nigeria—In His Own Words

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Last month, NITA sent seven faculty members to Nigeria in support of an advocacy training program organized by the Office of the Public Defender of Lagos State in the Ministry of Justice. J.C. Lore joined NITA colleagues Judge Ann Claire Williams, Judge Michael Washington, Judge Debra Seaton (Chinaka), Judge Ruth Rocker McMillan, Judge Margo Brodie, and practitioner Tom Innes in Lagos State from November 6–10 to teach public defenders the art and science of effective trial advocacy. J.C. also introduced us to his Rutgers colleague Kimberlee Moran, the Director of Forensic Science at Rutgers-Camden, whose lectures on evidence dazzled program participants and faculty alike.

Though this program was not J.C.’s first visit to the Africa (read his report on Kenya from 2016), it was his first time in Nigeria. Once he returned home to Singapore, where he and his young family are midway through their year of adventure living in Asia, he shared with us his reflections on the inspirational experience of teaching fellow trial lawyers in Lagos State.

You had to piece together the fact pattern and evidence from a few different NITA case files for this program. Why did you need to do that? How did your adaptations to the case file work out?
Nigeria just opened the country’s first forensics lab. This was a somewhat unique NITA program because the offices in Nigeria wanted training in four specific expert witness areas: pathology, firearms identification, questioned documents, and fingerprinting. Unfortunately, there aren’t training materials that are ready to go that can handle that type of training. There certainly aren’t any adapted for Nigeria. Therefore, we had to create new materials. Fortunately, Joseph Taylor and A.J. Griffith-Reed have some brilliant case files that we were able to use as a base. State v. Bloodworth provided the basis for the fact pattern and the pathology expert, but we also included elements from State v. Casey and State v. Skywolf. Several experts from around the country then helped me develop materials in the other expert areas, which I then incorporated into a single, modified case file called State v. Mahlin. We created the case file in a way that was consistent with the Nigerian locale by incorporating local names, addresses, law, and terminology. It could not have been done in such a short time without our wonderful team. The Hon. Margo Brodie, Hon. Ann Claire Williams, Sam Kovach-Orr (my Rutgers research assistant), and Grayce Frink helped with the enormous task of editing this case file for use in Nigeria.

What was the greatest joy for you of being part of this program?
There were so many. Of course, at the top of the list for any NITA program is spending time with so many wonderful NITA colleagues. When you are all together in a different country, you get to spend time teaching, eating, and traveling together. Although I knew many of my colleagues well, it was such a wonderful experience to get extra time to spend with them. It is always wonderful experience to work with Judge Williams when she is the program director.

From the program perspective, the great joy came from the overwhelming and genuine appreciation from the participants for what we were trying to do there. There was no resistance to what we were teaching. There was only a desire to learn, improve, and move their justice system forward.

I think from a team perspective, we welcomed a new superstar to the NITA family. Kimberlee Moran, the Director of Forensic Science at Rutgers-Camden, joined us for the week. She is a special talent and really made this unique type of NITA the success that it was. She delivered ten lectures on the expert topics such as handwriting, ballistics, fingerprints, and pathology. Her lectures and written materials were superb! She also worked tirelessly with the lawyers in small groups to prepare the simulation problems and to more deeply understand the science. Kimberlee also played the role of an expert witness during all of the breakout sessions. I don’t think there is much doubt that, along with Judge Williams, she was the hardest-working NITA faculty member at this program. Our entire group believed we hit a home run by having her with us. At the end of the program, Kimberlee was given a standing ovation by all of the participants and dignitaries, who seemed to agree with our assessment. We were very fortunate to have her with us for the week, and we look forward to working with her to improve the delivery of legal services throughout Africa.

What was your biggest challenge?
The traffic, and there is no doubt about it. It made keeping the program running on time very challenging. The traffic in Nigeria is among the worst I have seen in the world. Sometimes it would take thirty minutes to get to and from the training site, and other times it would take more than two hours. The travel for the participants was even more challenging.

What were the attendees like?
They were warm, welcoming, and passionate. This group of lawyers is extraordinary. There are 63 lawyers supporting a population of 23 million people, and they represent the indigent in both civil and criminal matters. In contrast, Philadelphia has about 240 lawyers supporting a population of 1.5 million, with a much lower poverty rate, and only handling criminal matters.

Did you have time for extracurricular fun?
We were pretty tired at night, so we usually had dinner around the pool. For many of us, it was a great time to catch up and get to know each other even better. However, we did get out for a couple of dinners, including at a restaurant written up recently in The New York Times called Nok. We also had a wonderful faculty dinner with our local Nigerian faculty.

What makes this program important?
We aren’t just shaping the legal system in one courthouse, one county, or even one state. We are impacting the way that law is practiced throughout an entire country. When you teach in Nigeria, you get the strong sense of how important a fair and just legal system is to the stability of the country. What adds to the importance is that the people we trained all recognize the need to keep learning and improving. They work tirelessly. One of the participants who helped us throughout the week commutes four hours to work and two-and-a-half to three hours home each day. Those numbers are not typos, and they were not unique to just this one participant. How can you not feel passionate about supporting a group that fights so hard, works so hard, and does it with such limited resources? What better mission can there be for NITA or any teacher?

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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