How Appealing links to this Seventh Circuit decision, which includes very interesting opinions by Judges Easterbrook, Posner, and Wood (all among the most respected federal appellate judges in the nation, and all former University of Chicago law professors).
Here’s the issue: American courts sometimes have to decide questions of foreign law. In the overwhelming majority of such cases, this has nothing to do with the controversial use of foreign constitutional law as persuasive authority in making American constitutional law decisions. Instead, it involves courts interpreting contracts that provide that they are to be entered into under foreign law, interpreting contracts entered into in foreign countries, making decisions about torts committed in foreign countries, deciding whether parties married in a foreign country (often long before they came into the U.S.) complied with the marriage law of that country, deciding whether a foreign money judgment that is being enforced in the U.S. complies with the law of the foreign country, and so on. (This is an oversimplification; not all such cases always require the application of foreign law, but many do.)
This is quite common, and sure to get more so as the world gets still more commercially interconnected. And it’s practically inevitable, at least unless we choose to dramatically handicap our own citizens in transnational business transactions. (We could, for instance, have a rule that says that any lawsuits based on contracts that call for the application of foreign law must be filed in foreign countries, but that would often me extra time and expense for American litigants, and a gain of a home-field advantage for their litigation adversaries.)
The question is: How are courts to determine what foreign law is, especially when it’s in a foreign language? The Federal Rules of Civil Procedure allow courts to rely on statements by experts in foreign law. But Judges Easterbrook and Posner argue that, for the law of many prominent countries (such as the French law involved in this dispute), reliance on experts is bad practice — it’s better for judges to consult English-language translations and treatises, which will be largely relatively objective, rather than the statements of experts hired by each party:
Trying to establish foreign law through experts’ declarations not only is expensive (experts must be located and paid) but also adds an adversary’s spin, which the court then must discount. Published sources such as treatises do not have the slant that characterizes the warring declarations presented in this case. Because objective, English-language descriptions of French law are readily available, we prefer them to the parties’ declarations.
Judge Wood disagrees, arguing that judges are too likely err in interpreting foreign law, again especially when it is in a foreign language:
Exercises in comparative law are notoriously difficult, because the U.S. reader is likely to miss nuances in the foreign law, to fail to appreciate the way in which one branch of the other country’s law interacts with another, or to assume erroneously that the foreign law mirrors U.S. law when it does not.
This strikes me as a very interesting and important debate, though one on which I have no informed opinion (except to say that, unsurprisingly, both sides make very good points). Note that the debate generally focuses on the laws of major non-Anglosphere countries that have a roughly civil law (i.e., European continental law) legal background — France, Germany, Argentina, and the like. When the country is England, Canada, Australia, or New Zealand, I expect that most judges would tend to do their own research, both because there is no language barrier and because the legal systems of the countries are in many ways quite similar. When the country is, say, Congo or even Thailand, there is probably little English-language commentary on the country’s law, and reliance on experts would not be that controversial. I expect this would also be so as to, say, Saudi law; Saudi Arabia is economically quite significant, but its legal system is so different from ours in many ways that I suspect most judges would want to hear from experts (even party-supplied experts) on the subject. I don’t know what Easterbrook and Posner would say about Chinese law, which is also radically different from ours but is the subject of a good deal of written English-language commentary.
I also didn’t see anything in the opinion about the possibility of ostensibly neutral court-appointed experts; I know there’s a general debate on the utility of such experts, but I’d love to hear what others who are more acquainted with the issue — especially in the context of foreign law — can say about it.
Ben P says:
This would have been useful about 6 months ago.
I’ve been involved in a large MDL where several of the component cases involved the possible application of English, German and or Belgian law. Initially the parties argued by citing dueling provisions in various treatises, which might have been amusing if it wasn’t so frustrating.
Eventually the parties did retain some experts in the various foreign law areas.
September 3, 2010, 10:06 amSF Alpha Geek says:
It seems to me that a lot of the situations you mention (eg, settling a contract dispute under the laws of Saudi Arabia) would be better served by appointing a special master with expertise in the applicable legal system to hear the case than by either of the alternatives the judges considered.
September 3, 2010, 10:14 amI don’t know if that’s possible under current US law, but with increasing globalization of business arrangements, it might be something for Congress to consider.
alkali says:
Hmm. By way of example, the leading treatise on class actions in American law, Newberg on Class Actions, generally favors use of the (plaintiff-friendly) class action mechanism. There’s nothing wrong with a treatise having a point of view, but at the same time people should not assume otherwise.
September 3, 2010, 10:20 amGLAdetariba says:
In a case involving Venezuelan law, the expert a former venezuelan Supreme Court Justice misinformed the Ohio´s court about Venezuelan administrative law.If the judge had consulted venezuelan works , he would have encountered the same misperception because recent law works are politically biased and the best venezuelan jurist live out of the country for political reasons. Still the judge tossed away the suit, it was based in fraudulent titles
“Rather than the statements of experts hired by each party:” why is this bad about foreign law and not in every case involving experts?
September 3, 2010, 10:26 amThe treaties on the subject say that experts are the solution but in civil law countries , you use three expert. Each party offers a list . The other party chose among them . And both agree on the third . if not the judge pick the third. Of course predictably , each expert side with the part that proposed him
Since treaties are the law of the land you must expect judges to follow the treaty but like in the USA , judges dont know as judges that Hamburg is in Germany
Just Dropping By says:
I’ve had three cases in my career that directly involved foreign law (Mexico, France, and Russia). In each case the parties designated experts on foreign law and I thought both sides’ experts in all three cases did good work and were helpful to the judges. (Of course, I might be biased because I won all three cases, but I really do think all the experts were working in good faith to get the most accurate construction of foreign law to the judge.)
September 3, 2010, 10:32 amwm13 says:
I agree with alkali above, and would extend it: Most U.S. legal treatises are written by authors who very definitely have a point of view. However, the authors are normally honest and thorough in their work. Therefore, I would rely on treatises primarily as compendia of issues and cases on each issue, not necessarily as objective statements of the law.
I don’t know how to apply this analysis to foreign jurisdictions, where I understand case law to be less important.
September 3, 2010, 11:08 amdavidbernstein says:
The key is that the court should look not for “neutral” experts, i.e., experts without an opinion, which is rather difficult to find and not necessarily desireable, but “nonpartisan” experts, experts who are not selected because they favor either party, and whose views are not affected by the desire to curry favor with either party.
September 3, 2010, 11:11 amChris Travers says:
I am wondering if this is an either-or proposition, and whether it wouldn’t be better for judges, and the lawyers, to submit a set of treatises and a set of experts. Is there anything wrong with such an approach?
September 3, 2010, 11:14 amMartinned says:
Seconded. Ius cognoscit curia, and if the court does not know the law, it should be in charge of educating itself.
As for the issue itself, being somewhat of an amateur comparative law guy, I’d agree with Judge Wood. Almost every week I run into something at VC that I never realised could be different than it is in my home jurisdiction. (And I actually spent a year studying law in Ireland.) From non-recourse mortgages to specific performance to the categories of damages that may or may not be compensated. (For example Dutch law is highly suspicious about non-financial damage, which can only be compensated in rare circumstances, but it has no problem with pure economic loss. In England, it’s the other way around.)
September 3, 2010, 11:14 amJBurns says:
Fortunately, I’ve had little need to really deal with the issue, but it would seem that ICC and other international arbitrations must deal with this far more often than the US courts. For those in the know, how do they handle it?
It seems strange to me to call as a witness an “expert” on the foreign law. Brief the issue using a lawyer from the relevant jurisdiction just like we brief issues of U.S. law. A judge shouldn’t give more weight to a brief regarding U.S. law just because the lawyer who wrote it is prominent, so why do so for an argument relating to foreign law.
September 3, 2010, 11:14 amMartinned says:
I assure you, legal treatises everywhere are full of discussions of cases. I am not aware of any accusations of bias towards prominent legal treatises, but that could just be my fault. For Dutch private law, any jurist with three minutes of legal training will grab the appropriate volume of Asser-Hartkamp (I think it has more than 20 volumes, altogether). It is written by a group of authors, who update every succesive edition, and I’ve never heard anyone complain that it is biased.
The same goes for my EU law bible, Kapteyn & VerLoren van Themaat, which is up to its fourth revised edition in English, and its 7th or 8th in Dutch. VerLoren van Themaat already died a few years ago, so the current edition is edited by Kapteyn, together with a whole list of other prominent professors, one of whom is also a judge in Luxembourg. The only reason why you’d consult another treatise as well is because you’re not satisfied with the way a given topic is discussed. That can always happen.
September 3, 2010, 11:23 amyankee says:
FRAUD!
September 3, 2010, 12:20 pmSmooth, like a Rhapsody says:
When thinking up the title to the OP was there ANY consideration giving to the feelings of the other 7th Circuit judges who now feel like “non-influential” scrubs?
September 3, 2010, 12:48 pmChris Travers says:
USURPER!
September 3, 2010, 1:04 pmkrs says:
I had the same thought about court-appointed experts–I also wonder why they weren’t mentioned. Maybe it’s an unnecessary expense for the court, but I often hear complaints about hired-gun-type experts and wonder why court-appointed experts aren’t used more often.
I was also disappointed to see that Mick’s commenting style didn’t make it into Judge Wood’s concurring opinion. As neither Judge Posner nor Easterbrook proved her wrong, and as she cited some authority for her points, I think she was plainly within her right to call her colleagues out as FRAUDS!
September 3, 2010, 1:12 pmWilliam Van Alstyne says:
Judge Wood’s point is a good one, but may need some degree of flexibility. By way of example,David Currie (Univ. of Chicago Law School) was not merely a prolific (and terrific) scholar of the U.S. Constitution, but also of that of Germany as well (David was a frequent visitor). Indeed, my then-Duke colleague, Herbert Bernstein, who was formerly of the faculty of the Max Planck Institute, frequently borrowed my copy of David Currie’s “treatise” on the German Constitution…which he declared was the “single best” treatise by far, in English or, indeed, in German. (Sometimes even as I think some readers will agree was the case of Alexis de Toqueville and his famous two-volume work on “Democracy in America,” it is the clearer-eyed “outsider” who offers the better description than those “inside” the society or system itself.)
September 3, 2010, 1:17 pmWilliam Van Alstyne
Brett Turner says:
Handling a very modest volume of international law issues for a large research firm, my experience for 20+ years is that English-language treatises on foreign-language law aren’t very good. They are often oversimplified, sometimes wrong, and almost always very general. Many are aimed at business persons, not at attorneys and judges. Experts who can speak the language and read the primary source material are a much more reliable source of information.
If the experts appear biased, or if their opinions are wildly disparate, the remedy is for the court to appoint a neutral expert. That is not an uncommon practice when valuing marital property in divorce cases, when the court is not satisfied with the valuation experts produced by the parties. In fact, some states (e.g., New York) have a preference for court-appointed experts. The foreign law problem seems similar.
September 3, 2010, 1:37 pmLitigator London says:
Having read the decision, I agree with what Professor Bernstein says. I prefer the views of Judge Wood.
England is very much a forum of choice. In a very high proportion of cases going through our specialist courts, such as the Commercial Court and the Admiralty Court of the Queens Bench Division, the Patents Court and the Chancery Division, the parties have no connection with England other than by a choice of jurisdiction or law clause. That is good for English law firms and the English bar.
Of course, in civil cases we do not have juries, cases are tried by judges sitting alone and in matters of foreign law there is possibly a major difference with the US practice: our courts start with the presumption that all foreign law is the same as English law and require any different effect of foreign law to be proved as a matter of fact, not of law.
So, given the presumption, the burden is on the party who pleads that foreign law differs from English law to establish that fact on the balance of probabilities. Of course the issue may be agreed, but if there is a dispute we resolve it by expert testimony.
In the old days there were abuses of the nature of which the opinions in issue complain, so much so that one Commercial Court Judge, perhaps not entirely in jest defined “an Expert” in these words: ”someone who cannot make a living at his chosen profession and is forced to hire himself out as a professional perjurer”. But the Woolf Reforms brought in much greater control of expert evidence by the Court now regulated by Part 35 of the Civil Procedure Rules and the associated Practice Direction which provide, inter alia:-
(i) no expert evidence without permission
(ii) the court will always consider appointing a single joint expert
(iii) instructions to an expert are not privileged and their substance must be recited in the expert’s report to the Court;
(iv) even though paid by the parties, the expert or experts’ overriding duty is to the Court not to the party instructing him;
(v) where there are two experts the Court will direct meetings between the experts to seek to narrow the issues;
(vi) an expert may apply himself by simple letter for the Court to give him directions.
(vii) where experts do not agree they will attend for cross examination.
Finally, the Court has power to sanction a party or the expert in costs for unreasonable or improper behaviour and in a bad case of breach of duty may report the expert to his professional body.
Those provisions have gone a long way to curing the abuses of which the Circuit Court complains.
However, even with impeccable experts, there can still be surprising results. I recall a case which involved an issue of the law of Bombay (Mumbai), India. About £15 million turned on the issue. Both parties went for the best possible experts at enormous expense. Each side hired a retired Indian Appellate Judge. There were weighty reports and the experts reached contrary conclusions. There was expert evidence over 3 days.
In his Judgment, the Judge remarked that the burden of proof lay on the party who alleged that Indian law was different. He had considered the expert evidence very carefully but he felt unable to prefer one of the two distinguished jurists over the other. Therefore he held that the party alleging that Indian law was different had failed to establish that fact on the balance of probabilities and went on to decide the case on the footing that Indian law was the same as English law!
September 3, 2010, 1:40 pmlgm says:
Along with Chris Travers I wonder why the expert witness/read it yourself options are mutually exclusive. If the appellate court justices do their reading of foreign law before the trial, they can dialogue with experts on both sides to clear up whatever misconceptions they may have.
A related issue is US courts having to decide questions of religious law (not just sharia). One case involved a orthodox Jewish woman suing to force her recently divorced ex husband to honor his prenuptial contract to grant her a Jewish divorce (called a get). The contract had been drawn up in accordance with Jewish law, not civil law. Another suit accused a Miami Rabbi of fraud for certifying a restaurant as kosher, when, in the opinion of the plaintiff, it was not.
September 3, 2010, 1:40 pmSF Alpha Geek says:
How is that any different, in principle, than suing someone who held themselves out to be an expert in a secular distinction, (say, veganism) and certified that a restaurant was 100% vegan? If the plaintiff found that the beans were so good because they were cooked with bacon fat, couldn’t he bring suit under precisely the same theory?
September 3, 2010, 1:54 pmLitigator London says:
Judges have enough problems with keeping abreast of the laws applicable to their own jurisdictions thank you! Not always for the expected reason. I recall that on a Kort Geding in Aruba with a Judge from Suriname my colleague from Rotterdam seemed to be doing very well but his delicious opponent’s robe split open during her peroration to briefly reveal a bikini. Apparently she had come to the hearing directly from the poolside. From that point the preliminary injunction opponents were seeking was a foregone conclusion no matter what the books said! That plus a 3 hour wait in a terminal in Curacao (all shops and bars closed) for the onward KLM flight back to Europe put me off a little. But I did enjoy re-reading “Hornblower in the West Indies” in flight.
September 3, 2010, 2:11 pmDilan Esper says:
I remember in Doe v. Unocal, there was an issue of what Myanmar (Burma) law provided on the issue of corporate alter egos (don’t ask).
One side’s expert produced some old common law cases from the Burmese courts in which they provided for a very narrow view of the doctrine.
The other side’s expert (ours) testified that in the current dictatorship, the “law” would be whatever the junta chooses it to be.
The judge, if I recall correctly, sided with us on the issue.
September 3, 2010, 2:25 pmlgm says:
The difference is that it is harder to decide what’s kosher than to decide what’s vegetarian. Imagine a courtroom with lawyers and expert witnesses quoting Talmud to each other.
September 3, 2010, 4:14 pmN. Friedman says:
In my experience, you can only half-educate yourself on foreign law, at least not without truly immersing yourself into that country’s legal system and becoming an expert. That is something which no judge has time to do.
In my field of expertise, I find myself often on the phone with foreign counsel. By having more or less immersed myself in such issues over the course of several decades, I tend to think I have mastered some of it. That would be dangerous, were it not a fact that I am well aware of my limitations. In fact, I very often find, after speaking with foreign counsel, that my understanding is wrong on the most elementary grounds.
Having a court appointed adviser for the Judge, with that person having expertise on foreign law, seems a good start but the parties should be able use expert opinion. After all, judges in the US disagree on US law so there is no reason to assume that any one expert is the be all and end all on understanding foreign law or, more importantly, applying it to a given case.
September 3, 2010, 4:16 pmDon Miller says:
would it be possible to change the rules in these cases that the judges hire the experts, cost to be split among the parties?
If the experts knew that their ability to testify in these cases was dependent on providing non-partisan information to the judge, I think we would be more likely to get fair information.
September 3, 2010, 4:55 pmAndy Rozell says:
I have a feeling that, especially in state courts, that would end up being an awful lot like ad litem appointments – used as a favor for the judge’s campaign supporters.
September 3, 2010, 5:21 pmSteve says:
I find neutral experts to be a dangerous concept. They may not be biased, but they can still be wrong, and judges tend to give them so much deference it’s like they’re delegating the judicial role to the expert.
September 3, 2010, 5:56 pmDavid M. Nieporent says:
Agreed. And no matter how much people denigrate the parties’ experts as “hired guns” who will say whatever the parties want (often true), parties have a right to present their own evidence — not to have the court appoint someone to decide what the evidence is.
September 3, 2010, 7:12 pmDavid M. Nieporent says:
It’s different in principle because there’s no objective, secular definition of “kosher”; the issue can’t be resolved without the court making religious rulings.
September 3, 2010, 7:13 pmBrett Turner says:
That’s a concern in the divorce cases using neutral experts to value property, and it’s a good reason why the parties should always be permitted to retain their own experts. But in the American system at least, the risk that an expert paid by one party will be biased or wrong is greater than the risk that a court-appointed expert will be biased or wrong, and experts are by far the best sources of information.
Maybe different in the British system if experts paid the parties truly feel greater loyalty to the court. I like that as a concept. Alas, the US isn’t quite there yet.
September 3, 2010, 7:20 pmLitigator London says:
That’s essentially what our system provides. The parties propose one or more experts to the Court. In some cases, the Court will say the parties should agree on a single expert, in others he will allow the parties one each. But it is not the function of an expert to be partisan.
If what David Nierpoint says is true – namely that experts are often “hired guns” who do what their appointors want them to do, then there is a problem. The basic rule of evidence is that witnesses speak to facts. Opinion evidence is permissible only when the Court needs to be informed of something which requires expert knowledge which the Court does not have. So while there is a right to present factual evidence, the admissibility of opinion evidence is a privilege – which ought to be granted only when the expert accepts that his duty is to give the court his honest professional opinion. Thus if the matter is one where there is a range of tenable opinion, the Court should be told about that and where there is more than one school of thought the Court should be told.
An example of what can go wrong is to be found in the UK case of Sir Roy Meadow The Times: Roy Meadow case.
September 3, 2010, 7:43 pmDilan Esper says:
Agreed. And no matter how much people denigrate the parties’ experts as “hired guns” who will say whatever the parties want (often true), parties have a right to present their own evidence — not to have the court appoint someone to decide what the evidence is.
Neutral experts work better in certain situations than others. For instance, sometimes courts will apppoint experienced accountants as referees to make recommendations in cases that require an accounting. Since the issue in such cases is usually applying generally accepted accounting principles to an undisputed set of facts, this can often work better than simply taking the testimony of two accountants who advocate maximalist positions that were often encouraged / constructed by the lawyers. It’s certainly more likely to lead to an accurate result, given that splitting the difference between two accountants’ findings is not necessarily going to reflect the correct determination.
Also, the concern about lawyers not being able to present their cases is overblown. There’s no right to present expert testimony. It’s only admissible if it is “helpful to the trier of fact”. If the judge doesn’t think it helps, it stays out. And even when there is a neutral expert, lawyers can still argue that the report and/or testimony is wrong and can often still cross-examine him or her.
That said, there are many other cases where I really would be concerned about a neutral expert. For instance, medical malpractice cases benefit from the dynamic where one side’s experts attack the work of the treating physician and the other side’s experts defend it. I don’t see how a neutral could duplicate that dynamic.
September 3, 2010, 8:46 pmCornellian says:
Any halfway competent federal judge could easily discern about 90% of what he needs to know about a foreign law issue just by reading the treatises and appellate decisions of that foreign country, provided the foreign country is England, Canada, Australia or New Zealand. I’d probably still want an expert for the other 10% though. As for civil law jurisdictions, I think you have to have experts. A judge with a common law background is going to have too many preconceived notions of how the law works that just aren’t applicable in a civil law jurisdiction.
September 3, 2010, 11:19 pmCornellian says:
Judges have enough problems with keeping abreast of the laws applicable to their own jurisdictions thank you! Not always for the expected reason. I recall that on a Kort Geding in Aruba with a Judge from Suriname my colleague from Rotterdam seemed to be doing very well but his delicious opponent’s robe split open during her peroration to briefly reveal a bikini. Apparently she had come to the hearing directly from the poolside. From that point the preliminary injunction opponents were seeking was a foregone conclusion no matter what the books said!
Doesn’t sound like your judge had any problem at all keeping abreast of the situation.
September 4, 2010, 1:38 amLitigator London says:
That’s perhaps where the English practice of not having juries in most civil cases (exceptions are defamation or claims of abuse of power by a public official) works to our advantage. I suspect that in a lot of US tort claims, the parties are looking for “showmen” who will present the parties’ position well to the jury.
In this jurisdiction, a medical negligence case, ends up before one of a panel of about 50 judges who specialise in such claims and will be familiar with the territory. There will be no jury. Perhaps the best way of showing just how different that makes the conduct of a case is to give an example of a short judgment in an obstetrics case. These are cases of high importance to claimants because if the child is born brain damaged, the damages award will probably have to make provision for lifetime care and such rehabilitation as may be possible. In this judgment which is on liability and causation and is just a few pages one sees how the experts interacted with each other and the court to resolve the issues: Smith v Sheridan [2005] EWHC 614 (QB) (14 April 2005). In particular note just how many of the issues were agreed between each group of experts before trial. One of my relatives did med.neg. for about 20 years before he was appointed to the bench. Knowing how well the expert system works in civil cases, I think he does have concerns about the quality of expert medical and scientific evidence in criminal cases, particularly where a defendant’s lawyers do not have the right expertise to instruct appropriate experts – see the Roy Meadow report relating to child abuse convictions I referred to earlier.
September 4, 2010, 4:07 amLitigator London says:
After about 15 years of dealing with cross border trade, financial services, and asset recovery litigation as my daily bread and butter, I couldn’t agree more and that’s even with reasonable fluency in a number of languages. I am all for our system of having the judge consider (i) whether there are foreign law issues which require expert evidence; (ii) whether the proposed experts have the requisite formal qualifications and (ii) whether the issue warrants a single or joint expert, but the parties should be allowed to select the identities of the experts they wish to put forward. Given the powers of the court to sanction misconduct by a party or by an expert, the lawyers should be relied upon to make the best choices. They will have researched the issue and considered the field of available expertise – what’s a Judge to do – pick a name at random out of Martindale-Hubble?
I would agree with that insofar as it relates to Commonwealth jurisdictions (ie excluding the USA) but so far as the USA is concerned, there is the added problem that the issue may turn on a matter of state law. Delaware crops up frequently as the place of incorporation of a party; New York of course in relation to a lot of shipping and financial services cases, I’ve had Louisiana 2 or 3 times in the last 10 years, and Texas several times in relation to oil and gas work. No judge is going to want to work through a contested foreign law issue without a guide.
One useful provision we do have is that if one can find a reported foreign case on all fours with the matter in issue, that case can be admitted in evidence as proof of the foreign law – so the first task is to instruct a competent foreign colleague – if he can come up with the goods in terms of a decision on point = preferably upheld on appeal – that is served under a Civil Evidence Act Notice and that may mean the burden shifts to the other side to show that expert evidence of the foreign law is needed at all.
September 4, 2010, 7:17 amDavid M. Nieporent says:
Without an expert of one’s own, that’s unlikely to be very effective. And even if one manages to discredit the neutral expert’s report solely through cross-examination, that likely doesn’t suffice for the plaintiff to satisfy his burden of proof.
Look, obviously not all expert testimony should be admitted; I would think it would be obvious that I’m not a proponent of junk science. I have no problem keeping out ‘science’ that doesn’t satisfy Daubert. But the fact that someone has a different theory, even a minority theory, does not make it junk. The fact that someone has a different theory than the court’s expert certainly does not.
September 4, 2010, 9:16 amDavid M. Nieporent says:
There’s some problem with experts who will distort their testimony to help their side, but the bigger problem is that a party can shop around for an expert. If I need an expert to say Y, the big problem isn’t that I find someone who will say Y if the check clears, but that I can consult five experts, have four of them tell me X and one tell me Y, and hire the one who says Y.
September 4, 2010, 9:21 amMartinned says:
By “in charge of educating themselves” I meant merely that the court should be able to appoint the expert it deems appropriate, and be encouraged to do so.
BTW, what was a judge from Suriname doing on Aruba? Or are we talking pre-1975?
September 4, 2010, 9:50 amMartinned says:
That is true when it comes to facts. But here we’re talking law, which it is the court’s duty to know about. So it’s certainly not a matter of “right”. Instead, it’s a question of what works better.
September 4, 2010, 9:53 amMartinned says:
A Kort Geding (which is an expedited procedure under Dutch law, with no testimony and ruling within a week or so) is one thing, but I once attended a hearing at the European Court of Human Rights in Strasbourg (in February, BTW), where counsel for the plaintiff wore a see-through top with a fancy bra. I don’t think that will have particularly endeared her with the judges. Also, in Strasbourg, unlike in Dutch court, the lawyers don’t wear robes…
September 4, 2010, 10:11 amBenjamin Davis says:
A very interesting post. Obviously, judges might take a page from international arbitration where the practice of using both party experts or an arbitral tribunal expert on the question has been done.
I respect the intellectual hubris of an American judge who thinks s/he can “figure out” that foreign law. I would match it with a Paris cocktail party comment of a French lawyer who pitied my Harvard Law School education as I was a common lawyer – “Not the real law.”
In the kinds of cases of which we are talking I imagine that nuances are very important. It seems that judges doing their own research (a boon to students who develop comparativist skills), having party experts and possibly an expert for the tribunal individually or combined may help avoid risky misinterpretation and lead to an understanding of the “vanilla ice-cream” version of the foreign law.
I wonder if there might be systems in which one court in country A could have the court in Country B advise on a point of law (similar to the older English stated case in arbitration approach but now transnationally) as assistance to the Country A court in examining the matter.
These sitting judges would be a really sophisticated court expertt. Of course, whether the foreign judge would be invited in to submit to cross-examination on his/her report would be an interesting point.
With technology such as it is – one could imagine the foreign judge sitting for the cross-examination through some kind of remote facility approach.
Of course, I once wrote about imagining two judges from two countries sitting in the same virtual space on the same matter, crafting a procedure that would pass muster in the appeals processes of both countries and each rendering judgments on the same day that would be local judgments in both countries. No need for recognition and enforcement of the foreign judgments – they are all home grown.
Best,
September 4, 2010, 1:02 pmBen
Mikalye says:
I think that the idea of basing opinions on translations rather than experts is fraught with difficulty. Particularly with regard to the French law in this case. The law in the US, and in the UK as well, is that the law is prescriptive. A law might say for example that you cannot legally drive at more than 65 miles per hour. The fundamental principle is that anyone engaging in a course of action has an ironclad right to know in advance whether that conduct is illegal or not.
That is not the way French law works. Many French laws are aspirational. This works because the role of the investigating Magistrate in French law is very different from that of a US or UK judge. They have the ability to determine qualitatively how closely the investigated behaviour tends towards the goals set out in the law and to ensure that the punishment fits the crime. This is the whole basis of the investigatory magistrate system. Trying to interpret even a brilliant translation of an aspirational French law in the context of a US legal system is fraught with difficulty.
Further, there is a level of cultural bias that colors what basic words in law can mean. When the French CNIL (Commission nationale de l’informatique et des libertés) took legal action against several American firms for the hideous offense of implementing the Sarbanes-Oxley act in France. One of the things they most objected to was the provision of anonymous whistleblowing hotlines for reporting misconduct. Now in the US, or the UK, tattling is rude. Nobody likes a tattletale. Whereas in France, it is right up there with incest. Perhaps it is a legacy of Vichy, perhaps there is some other reason, but tattling is an outrageous social taboo. Given that context, putting in procedures to deal with whistleblowing is like putting in procedures to deal with zebra stampedes, not actually impossible, but certainly governing something that was never going to happen. Given that it was relatively easy to see how an anonymous whistleblowing hotline could be used maliciously, and it was all but impossible to see how it might be used for whistleblowing, clearly what these firms were doing violated the first principle of French (and indeed European) data protetction law, that personal data must be “collected fairly and legally”. This cultural difference completely blindsided at least one of the American firms affected, and required some careful negotiations with the CNIL before something that met the requirements of French law could be implemented. However, I cannot see that any American court given a translation of the law that required fair and legal collection, would have the slightest inkling that an unremarkable anonymous whistleblowing hotline was illegal under that provision.
I have a tremendous respect for Easterbrook and Posner, but here they are just simply wrong.
September 4, 2010, 1:54 pmTGGP says:
How about contracts that specify not only the system of law to be applied, but the court? I believe Mauritania still uses British courts within its “free zone”.
September 4, 2010, 2:58 pmLitigator London says:
“Expert shopping” is certainly not unknown. Since I operated in an international department, foreign law experts were very often needed.
(i) Say the matter involved issues of banking law in a small country named “Bongo-Bongo”. I might know that there were only two high quality experts: “Professor X” in the National University and “Dr Y” of that jurisdiction’s premier law firm. Then I might very well retain both of them very early on and have them advise – not necessarily to call both of them in due course, but to deny the other side access to them.
(ii) In your hypothesis, you hire the one who say “Y” and I then go the same country and hire the best of the ones who says “X” and take steps to ensure that his opinion is supported by the other three.
(iii) In our system once a expert is named to the Court and appointed, if one later seeks to change him, that permission will often only be granted on terms that any previous draft opinions are disclosed to the other side. So if there is to be any shopping, it has to be done early.
(iv) Finally, there is no property in an expert. See “Harmony Shipping v. Saudi Europe Line [1979] 1 WLR 1380″ an appeal which Cumming-Bruce L.J. described as arising out of very peculiar facts. A handwriting expert had inadvertently given an opinion on certain documents to both plaintiffs and defendants. He was embarrassed and the question was whether he was obliged to give evidence under subpoena for the defendants. The Court of Appeal upheld the judge’s decision that he was. The essence of the decision was that his opinion as to the documents did not depend on information provided to him in privileged circumstances. Lord Denning M.R. said that, so far as witnesses of fact are concerned, the law is plain that there is no property in a witness. He then said at page 1385C:
“The question in this case is whether or not the principle applies to expert witnesses. They may have been told the substance of a party’s case. They may have been given a great deal of confidential information on it. They may have given advice to the party. Does the rule apply to such a case?
Many of the communications between the solicitor and the expert witness will be privileged. They are protected by legal professional privilege. They cannot be communicated to the court except with the consent of the party concerned. That means that a great deal of the communications between the expert witness and the lawyer cannot be given in evidence to the court. If questions are asked about it, then it would be the duty of the judge to protect the witness (and he would) by disallowing any questions which infringed the rule about legal professional privilege or the rule protecting information given in confidence – unless, of course, it was one of those rare cases which come to the courts from time to time where in spite of privilege or confidence the court does order a witness to give further evidence.
Subject to that qualification, it seems to me that an expert witness falls into the same position as a witness of fact. The court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts. … In this particular case the court is entitled to have the independent opinion of the expert witness on those documents and on those facts – excluding, as I have said, any of the other communications which passed when the expert witness was being instructed or employed by the other side. Subject to that exception, it seems to me (and I would agree with the judge upon this) that the expert witness is in the same position when he is speaking as to the facts he has observed and is giving his own independent opinion on them, no matter by which side he is instructed.”
Waller L.J. agreed with Lord Denning. He said at page 1387A:
“As Lord Denning M.R. has said, the general principle must be that no party has any property in a witness; and the argument before us has partly involved a discussion as to whether there is a difference between a witness of fact and an expert. In my view, there is no difference between those two kinds of witnesses as a matter of general rule. Were it otherwise, as Lord Denning M.R. has indicated, in a sphere of a small number of specialists it might be possible for one party to buy up all the possible experts, and clearly such a situation is not right.
I had occasion to make use of that principle quite recently. It was a in relation to the assessment of loss of profits. The Defendant had had a expert Shorty before trial he dumped him and appointed another who seems less experienced. I smelt a rat. I asked for disclosure of the previous expert’s draft report, but because the order of appointment had not referred to the experts by name but only by profession, I could not go that route. So I subpoenaed the 1st expert. He gave evidence. Obviously he could not be asked about his advice to the Defendant or the conclusions of his draft report. But he did a very good job of demolishing the methodology and the market assumptions of the Defendant’s 2nd expert.
September 4, 2010, 3:02 pmLitigator London says:
Early 70′s.
A dispute between an Italian company building yet another hotel/casino/shopping mall ocean fronting complex for US tourists at the behest of a Netherlands Antilles company of very uncertain (not to say dubious) ownership. The construction contract was on JCT “Design and Build” terms with express English law and exclusive jurisdiction clauses and was proceeding in the Technology and Construction Court in London. The Kort Geding was for interim relief (i) to restrain the Claimant from calling the bank guarantee and (ii) to require the Claimant to continue working even though unpaid. It succeeded at first instance, thanks to Miss Pretty, who was a dish! – and maybe other factors as well since the local administration seemed keen to have it completed, and if memory serves was reversed in on appeal in Curacao (I think) some months later. I think the ultimate beneficial ownership of the Defendant may have been American with strong Miami connections – but I never got quite to the bottom of that. My clients eventually got paid.
September 4, 2010, 6:11 pmLitigator London says:
That’s standard European practice these days. See Council Regulation on Jurisdiction, recognition and enforcement of judgments in civil and commercial matters People doing business in Europe have to think about where they do not want to be sued at the time of contract formation otherwise they end up having all the relevant documents translated into Bulgarian, Finnish etc.
September 4, 2010, 6:33 pmLitigator London says:
We have that procedure for references to the ECJ on European law points. We also have it within the Commonwealth under a little-used provision called the Foreign Law Ascertainment Act. Little used because the systems are so similar we can use the law reports. I think it might well develop for Europe generally, but court delays being what they are, it will generally be quicker to use a expert. And BTW we already have cross border recognition of Judgments and ability to get interim measures from another court.
Finally, we accept evidence via video link. So a long distance expert need not necessarily travel here – although a good number prefer to – it was not unknown for my NY colleagues to ask if I could get a case scheduled for the time of the Harrods sale or to give my secretary a list of the London shows they wanted to see.
September 4, 2010, 6:45 pmR. S. Alazar, J.D. says:
The best solution is much more general: specialization of labor.
Statute should have our courts specialize, and sub-specialize, and sub-specialize again.
It would be perfectly economic to have at least one tribunal in America comfortable in the language and law of each of our major trading partners.
September 5, 2010, 6:50 pmLitigator London says:
You might want to reflect on that one. If the Judge is going to be sufficiently qualified to deal with the law of, say, China in Mandarin, then the advocates before him likewise will have to be sufficiently able to argue the matter in Mandarin.
September 5, 2010, 7:56 pmMartinned says:
Yes, I’ve noticed that too. I’m always amazed at the American rules on jurisdiction, which allow a defendant to be sued practically anywhere. Theoretically, in Europe there’s supposed to be a much stronger presumption that the defendant will be sued in his home jurisdiction. However, in practice they still seem to wind up in the alternative forum. (i.e. the forum where the tort took place, where the contract had to be performed, etc.)
September 6, 2010, 9:06 amU.S. federal courts determine foreign law. | Hoofin to You! says:
[...] research pointed me to a number of interesting sites, and even one recent case blogged about on the interpretation of foreign law. The source of the post was a case out of the Seventh Circuit, which I think is around Chicago or [...]
September 9, 2010, 12:22 pmAnton Wittrock says:
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September 9, 2010, 1:02 pmGilles Cuniberti says:
Courts from Singapore and Australia have indeed recently entered into a memorandum of understanding to this effect:
http://conflictoflaws.net/2010/new-south-wales-and-singapore-supreme-courts-enter-into-a-memorandum-of-understanding-on-questions-of-foreign-law/
Best,
Gilles Cuniberti
September 11, 2010, 5:09 amAbogares, un blog de Indret | La boca extranjera de la ley says:
[...] pueden encontrar más información sobre el caso en el blog del Profesor Jesús Alfaro y en The Volokh Conspiracy. Deje su comentario Click here to cancel [...]
September 17, 2010, 6:37 am