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Federal judges debate utility of foreign law

A recent Seventh Circuit opinion provides persuasive authority for attorneys looking either to present or exclude expert testimony regarding the meaning of foreign laws.

Judges Frank H. Easterbrook, Richard Posner, and Diane Wood all weighed in on the value of such testimony, with Easterbrook and Posner both disparaging it, and Wood supporting it.

The court’s Sept. 2 opinion involves a contract dispute between Bodum USA, Inc., and La Cafetiere, Inc., two manufacturers of French-press coffee makers. The contract was drafted in French.

All three judges ultimately affirmed the holding of the district court – that the contract was enforceable under French law.

But each wrote separately to discuss expert testimony.

Both parties presented the testimony of French law professors, pursuant to Fed.R.Civ.P. 44.1, which provides that courts “may” consider expert testimony when deciding questions of foreign law.

Writing the lead opinion, Easterbrook criticized the admission of such testimony.

Easterbrook acknowledged that some foreign statutes and decisions have not been translated into English or discussed in treatises, in which case, expert testimony may be essential.

But Easterbrook found that French law, as well as the law of “most other nations that engage in extensive international commerce, is widely available in English.”

Easterbrook opined, “It is no more necessary to resort to expert declarations about the law of France than about the law of Louisiana, which had its origins in the French civil code, or the law of Puerto Rico, whose origins are in the Spanish civil code.”

Easterbrook added that use of foreign experts is expensive and adds “spin” that the court must then discount. The meaning of foreign law is better ascertained through published sources such as treatises, Easterbrook said. “Because objective, English-language descriptions of French law are readily available, we prefer them to the parties’ declarations.”

Judge Posner wrote separately to amplify Easterbrook’s criticism of “a common and authorized but unsound judicial practice.”

Citing numerous cases, Posner noted that courts routinely rely on expert testimony, even to determine the law of foreign countries in which English is the official language.

Posner wrote, “there is an abundance of published materials, in the form of treatises, law review articles, statutes, and cases, all in English (if English is the foreign country’s official language), to provide neutral illumination of issues of foreign law. I cannot fathom why in dealing with the meaning of laws of English-speaking countries that share our legal origins judges should prefer paid affidavits and testimony to published materials.”

Citing numerous treatises on French law written in English, Posner added, “It is only a little less perverse for judges to rely on testimony to ascertain the law of a country whose official language is not English, at least if is a major country and has a modern legal system.”

Posner acknowledged that even educated Americans are largely monolingual, but continued, “our linguistic provincialism does not excuse intellectual provincialism. It does not justify our judges in relying on paid witnesses to spoon feed them foreign law that can be found well explained in English-language treatises and articles.”

Judge Wood also wrote separately, but to defend the use of expert testimony regarding the meaning of foreign law.

Wood opined, “It will often be most efficient and useful for the judge to have before her an expert who can provide the needed precision on the spot, rather than have the judge wade through a number of secondary sources.”

Wood acknowledged that written sources are useful, but concluded, “There is no need, however, to disparage oral testimony from experts in the foreign law. That kind of testimony has been used by responsible lawyers for years, and there will be many instances in which it is adequate by itself or it provides a helpful gloss on the literature.”

The case is Bodum USA, Inc., v. La Cafetiere, Inc., No. 09-1892

David Ziemer can be reached at david.ziemer@wislawjournal.com.

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