The world is becoming increasingly smaller, at least in a legal context. International legal problems can and do arise, not only with the sale of goods but also regarding family law and inheritance. Even lawyers without an “international practice” may find themselves in a situation involving foreign law, whether through a U.S. client’s problem abroad or a foreign client’s problem in the United States. To add to the complexity of the matter, the client may or may not be “here” and accessible to the attorney. If the problem is elsewhere, an attorney is unlikely to be able to get authority to work in the other country, even if just for that problem, and will likely have to obtain legal counsel over “there” to solve the problem. But wherever the problem and clients are found, proper resolution will require the attorney to be familiar with issues that arise in at least three areas: the legal system, the language, and the customs and culture of the other country.
This article is by no means intended to teach readers what the law is elsewhere but to make them familiar with concepts that are part of the thinking of a foreign lawyer or client. U.S. attorneys need to understand these concepts, or communication will be moving through opaque, rather than transparent, windows.
Common law versus civil law. It is essential to understand that a problem may arise in one of two dominant systems of law, or straddle both: civil law and common law. These legal systems may represent different ways of reaching the same goal, which is to do justice and to protect parties, but they are quite different means of getting there.
When dealing with a dispute, both systems start with a law and the facts of the situation. The common law system of the United States requires the parties then to look to other cases, through adherence to case law precedence, or stare decisis, in determining what the resolution should be. In contrast, the civil law system may pay attention to decisions of other courts but gives more authority to a judge to exercise an independent decision, based on the law and the legal arguments, as to the law’s intent.
Our common law system involves lawyers undertaking discovery and preparing a case for a judge’s decision or the decision of a judge and a jury. The civil law system more often involves each side exchanging their information and then arguing the case to the judge, who interviews witnesses at trial, if any are to be called at all. It is sometimes said that the common law system is an adversarial system whereas the civil law system is an inquisitional system.
Common law requires the parties to create their own agreements and allows them to make bad agreements as easily as good ones. When there are disputes, a court will look to the language in the contract and its implementation. Civil law sets forth a basic framework for agreements and then looks to the intention of the parties when disputes arise.
It is argued that civil law’s goal is to protect the weaker party. Our law is supposed to be blind to these issues. Civil law looks to equitable justice whereas it may be argued that common law looks to caveat emptor, or “buyer beware.”
Getting assistance. When confronted with a legal problem in a foreign country, your time or the cost of your time may be better spent on consulting with an attorney there than in trying to learn everything you can about the other system. My advice is to find and not hesitate to work with a local lawyer there. They also have ethical obligations and can be passionate about representing a client. But, at the same time, understand that some attorneys are more constrained by their legal system and government to behave a certain way than is tolerated by our legal obligations.
To find local attorneys or attorneys who can work with you on any transnational problems, get referrals from other attorneys, the American Bar Association’s SoloSez listserve, a local law school with an international department, or the ABA Section of International Law, or contact the “desk” for that particular country at the U.S. State Department. Perhaps the foreign client already has a local attorney or can recommend someone. Remember that it is not sufficient to have a name—you then want to interview the person to see whether he or she can handle the problem or the consultation and work with you.
If you look for a foreign attorney to handle a matter in another country for your client, couch all communication as being anticipatory of working together and not an agreement that the other attorney is hired. Years ago I looked for an attorney to represent a client in Zimbabwe and sent out letters to a dozen or so names I had obtained from the U.S. State Department. I gave a brief description of the problem and asked each attorney to give me some information about him- or herself and to tell me if he or she would be able to handle the case. In two or three cases, the attorneys began acting as if I had already retained them. In one case, an attorney even sent me a bill, contacting the Chicago Bar Association to discipline me or negotiate a settlement, when I refused to pay the bill.
Keep the communication with the other attorney confidential until you learn whether that jurisdiction’s legal ethics allow you to share the communication with your client. In fact, ask a retained attorney about any issues of confidentiality. It is my understanding that some jurisdictions consider it a breach of ethics to share communication between attorneys with a client, even when the other attorney represents the adversary.
If the problem does not require you to hire another attorney, think about whether you should retain one for consultation, to better understand how to deal with the problem of a client coming from or living elsewhere. In civil law countries, notaries handle the transfer of property, among other things, so attempts to help your client to deal with an overseas inheritance mean that you need to understand a different system and look for a different type of legal colleague. Look to publications of the U.S. State Department and the ABA, among other sources, to learn more about the other system.
Representing foreign clients. If you are representing a foreign client on a matter here in the United States, understand that those in another country may have different expectations of a U.S. lawyer and the legal system than we may have, even if they claim to understand us, which they generally think they do. More often than not their knowledge is based on Hollywood productions. Be prepared to explain to your foreign client how our system may be different so that he or she is not surprised by a walloping legal bill for discovery.
It goes without saying that a major issue with international matters is language. Different languages use different words to say the same thing, and sometimes the same words do not mean the same thing.
The English language and our style of drafting have become predominant in the drafting of contracts throughout the world, but many English words and phrases and clauses have meaning beyond that which is in a dictionary. There are even differences between dictionaries. Further, there are differences between and among English-speaking countries.
I recently learned that “tabling a motion” has exactly opposite meanings in the United States and the United Kingdom. There are different meanings for “consignment” in the two countries, as well. A U.S. bankruptcy court can refine this word even further, with different results, depending on whether the consignment of something was for its sale or in trust.
Understand that an interpreter in another country may have learned English in or based on what is spoken in Great Britain. Attorneys from the United States and the United Kingdom both understand the phrase “batting lineup,” but we play on a field and they play on the pitch. British English is often given greater credence and respect than American English, just like Castilian Spanish is preferred over other versions, and there are many of those. I know a translator who published a dictionary showing differences in the Spanish spoken in Panama, Spain, and certain other Central and South American countries.
Foreign lawyers should be extremely careful about using English terms unless they understand the nuances. They do it anyway. American lawyers need to understand that a non-native English speaker may not correctly use a word. Because I speak French, I often ask clients to communicate with me in French rather than English to avoid their mistranslating a word or concentrating so much on translation that they do not answer my question fully. The only exceptions I make are when the person worked in English with the opponent.
Receiving something from a foreign client that has been either written in or translated into English may be a problem. How well did the translator know English, and which English did he know? I had a case where a French document was translated into English by a certified French translator, but the translator had learned her English in . Her translation of a French document regarding the transfer of artwork to the United States was going to sink my case, which dealt with whether title to artwork physically present in a U.S. gallery had been transferred to the gallery owner.
It may be difficult for a foreign lawyer to understand the language in a document dealing with legal issues that he or she does not understand. This often happens with trusts, which do not exist in many countries. It is not easy to translate things that do not exist elsewhere.
Years ago, I asked a French colleague whether attorneys there “do” or “take” depositions. He thought for a moment and then responded that their equivalent of a court reporter “took” the deposition and that an attorney did neither because it was a judge who “conducted” a deposition.
I understand that in Latin America the term “director” as often as not means a manager, and not the director on a board, as in the United States. Upon seeing this word in a document, attorneys from the two areas would have rather different ideas of what the person’s authority and function is. Yet they will continue to discuss resolution of issues as if they both have the same facts at hand.
Consider whether you should have a shorter and simpler clause or a longer clause that goes into great detail about the meaning of words. A common law judge or arbitrator will look at the words and their meanings, which may be why we use so many words defining everything. A civil law judge or arbitrator will look at the intent of the parties, so their contracts are devoid of these explanations and, as a consequence, are much shorter.
Understand that “boilerplate” language is confusing, if not frightening, to foreign attorneys. They do not know what “boilerplate” means or how it works. Once you get them beyond that issue, you will have to start working on how the particular boilerplate paragraphs evolved and why they should remain, if at all.
Of course, you will have to get to their level when it comes to understanding country- or region-imposed restrictions that everyone in their jurisdiction knows control a contract. I stepped into this problem after lawsuits had been filed because a U.S. manufacturer wanted a year-to-year contract with a one-month termination clause, while the French distributor knew that it would be held legally liable to its employees if it did not give them notice of termination in accord with the amount of time the employee had worked for the company. Most of the employees would have been entitled to two to three months’ notice, based on the amount of time they had worked for the company.
Be very careful when using translation software for anything but general translation into English. If you do not speak the other language, be even more skeptical of this software. I once tested a program with a client retainer letter. It translated “overhead” into the French equivalent of my charging for things that fly above us.
In most circumstances, do not use your secretary or your secretary’s mother to translate anything. Find a reliable translator.
If using a translator for a deposition, discuss ahead of time what terms might be used. Discuss with your opponent that the translator may occasionally have to make an explanation on the record that a word does not exist for something. In one case I worked on, the opposing attorney continually interrupted a conscientious translator’s attempts to qualify a translation—primarily because this attorney was stupid and obnoxious and could not believe that the translator was trying to explain what the deponent was trying to communicate.
If you will have a translation and transcription in both English and the other language, focus on the English version if you are in an English-speaking tribunal. If your client speaks English better than the translator, have your client answer your question and not that which was translated (poorly).
In these types of cases, you will also encounter cultural issues involving the clients, the attorneys, and the legal systems.
As discussed above, it is extremely important to understand that the mind-set in common law systems is different from that in civil law systems. Clients are freer to do things in common law systems than in civil law systems. But, within the legal system, the parties under common law are more subject to case law precedence than in the civil law system, where the parties are subject to the judge’s “intimate thoughts” after listening to the lawyers’ arguments.
In civil law countries a judge looks at the intention of the parties, whereas in common law countries the judge looks at the agreement between the parties, as reflected by their words, or even their conduct.
In the United States there is often a tendency to extreme informality, with attorneys often insisting on being on a first-name basis with their clients. In Europe it is often the contrary. A U.S. client quickly calls me “Lynne,” whereas a French client generally refers to me as Maître Ostfeld, only calling me by my first name if I suggest it. With French clients and colleagues, we generally use the formal “you” and only rarely slip into the informal “you.” Fortunately, this is not an issue in English, where there is no distinction. But your foreign client may be offended if you call him by his first name.
With attorneys, the relationship must start with a showing of respect for each other, particularly as many non-U.S. attorneys look upon us as being much more aggressive than they are. This is not always true, but it is a perception. Their nasty letters are politer than ours are.
Be aware that much of the perception of the U.S. attorney and legal system is based on American films. A French pro se party accused a French colleague, in French court, of being complicit with the Mafia because he was associated with me, a Chicago attorney. I have even had someone only half-jokingly ask me if, being an attorney from Chicago, I sing and dance in court like Richard Gere did in the film Chicago.
The American film representation of our legal system also gets into other court systems, where parties before the court may refer to the judge as “your honor” in their language. Elsewhere the judge’s title is otherwise (e.g., in France it is M. le Président). Citizens have been known to demand that police read to them their “Miranda” rights. Judges in other countries are not happy to think that their citizens know more about U.S. law than their own. It is important that an American attorney not act as if our law is better.