With the increasing globalization of business and law, in-house and outside counsel are often asked by U.S.-based clients to identify, vet, retain, and oversee foreign counsel to handle cross-border litigation. Hiring and working with lawyers outside the U.S. presents unique challenges and involves different considerations than, for example, finding local counsel in another state or U.S. co-counsel with subject matter expertise.
Choosing a lawyer in another country can thrust the U.S. lawyer into a labyrinth of unfamiliar legal systems and cultures, bar structures, and attorney-client arrangements. It requires at least passing acquaintance with the type of law firms and lawyers practicing in the target country; their standing with the legal community, government officials, and the judiciary; the way in which they interact with clients; and their style and rhythm of litigation in accordance with local practices. Aside from differences in substantive law, variations in day-to-day doctrine and procedures, such as attorney-client privilege, witness preparation rules, discovery and blocking statutes, and data privacy obligations, present special challenges. So do logistical issues, such as language capability, time differences, and cybersecurity.
U.S. lawyers will want to tackle these concerns with careful planning and discussion as part of the counsel search and engagement, with both the client and the potential candidates. Setting expectations for both will be critical. In undertaking that process, here are some considerations to keep in mind.
The omnipresence of U.S.- and U.K.-based global law firms has changed the law firm landscape in many countries, particularly major cities. There are often clear distinctions in approach and “feel” between international firms and local firms. In France, for example, some of the most highly respected firms are referred to as “French-French” to distinguish them from the many excellent foreign firms that maintain a local office with French lawyers. While a path of least resistance might be to simply retain a familiar U.S. firm, local firms often have the stronger local reputation or more useful contacts; local firms may also be perceived more favorably by local officials and judges. Both types of firms warrant consideration — the right choice will depend on the nature of the case and the quality of the lawyers who will be handling the matter.
In meeting potential lawyers, U.S. lawyers will want to go in greater depth on a range of issues than they might for a local engagement. But the most important attribute to look for from the start is flexibility. How does the lawyer react to an American counsel or client? Are they open to probing questions, sometimes uninformed suggestions, and healthy pushback on strategic decisions? Many foreign counsel are not (and no doubt U.S. counsel can come across the same way to foreign clients who question American procedures). While local lawyers must remain true to their own legal customs and expertise (that is why they’re being hired, after all), it takes special skill to know how to respond to what seems like an obvious or even ignorant question, how to field a good faith suggestion, and when to give in where appropriate, even if it requires stepping out of legal culture routines.
Because the vast majority of countries maintain civil law rather than common law systems, U.S. counsel will want to understand the civil law framework. While the differences are extensive (and the subject of much commentary), they directly impact the attributes to look for in foreign counsel.
For example, there are rarely juries in foreign litigation, almost never in civil cases, so looking for the personality type that makes for a good jury trial litigation lawyer will not make sense. The civil system places greater emphasis on written submissions, which can be lengthy, redundant, and even turgid to the American reader, especially in the context of sometimes endless rounds of briefing (comparable in some ways to multiple rounds of summary judgment motions where parties are continuously permitted to adapt their arguments in light of the round before).
The briefs themselves often bear no relationship to their American counterparts. Foreign briefs rarely start with a summary or roadmap for the judge, much less the punchy statement of position U.S. briefs often adopt. Like U.S. Supreme Court opinions from the 19th century, they typically begin with lengthy explanations of the other side’s contentions, followed by a detailed description of the party’s own responses but without advocacy. This format can jar a U.S. in-house lawyer, unhappy to be wading through the adversary’s best arguments at the beginning of the client’s own brief.
Oral argument can also appear alien, with many countries favoring a more formal style that may sound pompous to the American ear. In fact, “pleading” a case (or what the French call “plaidoirie”) with intonation variations and exaggerated hand gestures is an art form in Europe and Africa, although such grandiloquence contrasts sharply with the U.S. tendency toward simplicity and folksy phrasing.
Substantive arguments will look unusual as well. Because our common law system relies on precedent, we expect to see arguments pieced together with citations to similar prior cases and pithy parentheticals to make their relevance clearer. Civil systems lawyers will instead frame their arguments in terms of the applicable codified rule, as interpreted by “jurisprudence,” i.e., published analyses by law professors, legal experts, and well-respected lawyers that in turn dissect statutory language and case holdings. In complex cases, foreign counsel may retain law professors or other legal experts to opine on a legal issue in a way that would typically be improper under U.S. law.
In identifying foreign counsel, the U.S. lawyer may want to ask to see a brief submitted in a similar matter (with client names redacted if necessary), to meet with the lawyer who will actually be “pleading,” and even to attend a hearing. That provides an opportunity to understand the degree of structural formalism they can expect, how deftly the firm constructs arguments using jurisprudence, and the lawyer’s oral style. Setting expectations about these issues, especially with in-house counsel, will avoid last-minute panic attacks when the client is reviewing a brief to be submitted on a short time fuse or plans to attend an important hearing.
Many foreign firms now have English-speaking lawyers capable of producing rough translations of submissions, while others rely on outside services. It is worth understanding exactly who will be doing the translations and their background. Unless the person or service has experience with the U.S. legal terminology relevant to the case, the translation you get back (often with little time to discuss or correct) may be misleading or even unintelligible on key concepts. Preliminary discussions with the foreign lawyer and the translator to explore the closest English equivalents to different legal concepts relevant to the case can be extremely helpful, as can baking in time during the review of documents to discuss and understand linguistic disconnects.
The terms of the engagement letter with foreign counsel often hit a number of unexpected stumbling blocks. For example, U.S. letters routinely contain an arbitration clause for disputes, often before a forum such as the American Arbitration Association or JAMS. Foreign lawyers may balk at this. Many countries have rules under which lawyer-client disputes are submitted to the local bar or its president for mediation and resolution. Retention letters have to find a middle path that takes account of governing rules. Similarly, questions arise about which ethical standards apply in a cross-border matter. Many foreign countries have strict ethics codes, often referred to by a cognate of the English word deontology, and lawyers abroad will consider themselves bound by those rules, not by American ethical standards. These differences can apply to disclosure of conflicts of interest, joint representations, retention of documents, and other critical terms. All of these will need to be negotiated and memorialized.
Some engagement agreements go further and address issues like attorney-client privilege and the work product doctrine. These concepts can vary dramatically from country to country. Much has been said in recent years regarding limitations on the attorney-client privilege for in-house counsel in European companies, for example. The engagement letter can be used to memorialize the parties’ intent for U.S. concepts of privilege and work product to apply as broadly as possible or at least express the client’s intent for communications to be secret under whatever rules apply.
One daunting challenge U.S. lawyers face is adjusting to a legal culture completely at odds with the one in which they have spent their careers practicing. In the U.S., for instance, especially in recent years, lawyers expect in-house counsel to be deeply involved in external litigation, commenting on every brief and participating in every strategic decision. That is not a universal concept. In some countries, external lawyers may have the attitude that they will meet with the client to learn about the case at the outset and then provide after-the-fact reports of how the matter has proceeded. I sometimes refer to this as the “we’ll let you know how it comes out” approach, and it can frustrate American clients. Discussing expectations about decision-making and reporting at the outset is critical, including ground rules that would not need to be spelled out in the U.S.: for example, clients expect to review all writings submitted in any forum, to discuss all but the most mundane strategic choices, to participate in planning for appearances before the court, etc.
From a logistics standpoint, following through on these requirements can pose serious difficulties. For example, in Brazil, local counsel may find it necessary to respond to unexpected filings on very short notice, even overnight. Drafting a brief, having it translated from Portuguese, and getting input and (hopefully) approval from the client will necessitate real-time interpretation services, late-night or early-morning discussions, and difficult strategic choices made under time pressure. At the same time, foreign counsel may not have full sensitivity to the way in which a client expects its business or the facts of the case to be framed — submission of a brief that has not been vetted by in-house or U.S. counsel can risk unintended impacts, for example, on parallel litigation in the U.S. All of this should be anticipated and planned around from the beginning.
Lawyers’ relationships with the court can also surprise U.S. clients — in opposite directions. In many civil jurisdictions, and unlike in the U.S., lawyers and judges take different career paths, from the schools they attend to their professional assignments. It is rare for a lawyer to become a judge or vice versa. One result is that judges may seem harsher, less engaged, or more distant to U.S. eyes. I have heard from many foreign lawyers that their judicial counterparts treat them with suspicion and resentment. In other jurisdictions, the opposite phenomenon may arise; for example, lawyers may be called into meetings with the judge to discuss the case ex parte in an informal setting that would make any U.S. lawyer uncomfortable. It is worth discussing these questions with potential counsel to understand their approach with either a seemingly hostile judge or an overly familiar one.
One area where U.S. lawyers find themselves flummoxed in foreign proceedings is with respect to witness preparation. In the U.S., of course, it would be malpractice not to fully prepare a witness to be presented to the court — anticipating questions and discussing potential answers and the best way to frame the witness’s narrative, always within the ethical boundaries of telling the truth. Other countries do not see it that way. In many jurisdictions, witness preparation that would be standard here is considered unethical and sanctionable. Judges expect witness accounts to be unvarnished. Mock examinations are strictly verboten. Figuring out a middle ground between these wildly different approaches before an upcoming court hearing can create tensions, especially where U.S. witnesses or executives are to be called. Once again, airing these issues with potential counsel and settling on a course of action with which both the client and external local counsel are comfortable can avoid a great deal of last-minute scrambling.
Approaches to the evidence in litigation are very different as well. U.S. lawyers naturally spend a great deal of their time on discovery — depositions, document requests, interrogatories, etc. But the concept of U.S.-style discovery has not been accepted by the world’s legal systems. Most provide for only limited document requests in which detailed specificity is key; depositions do not exist. A party’s own testimony or declaration will be perceived as self-serving and accorded less weight than a third party’s, but there are few mechanisms to obtain such testimony. This means that a party in foreign litigation may not learn all the warts of its adversary’s case, but the adversary may not learn about your client’s warts either. This in turn impacts strategic decision-making, including about settlement value.
Data privacy rules add additional complexity, since gathering information, even from a client’s own employees, can be prohibited. Definitions of evidence entitled to privacy and shielded from lawyers can be broad. Even downloading company emails, routine in the U.S., can infringe on an employee’s privacy rights abroad and subject the client to civil penalties.
U.S. counsel, both in-house and external, are increasingly called upon to vet, retain, and oversee foreign counsel. Thinking through the challenges of the representation, anticipating problems arising from differences in the legal systems and cultures, and addressing them as much as possible from the counsel interview process through the engagement letter and litigation itself can make the process far smoother and avoid unwelcome surprises.
