June 01, 2016

Global Litigator: Far from Home

A trial in American Somoa offers unusual challenges that start with what to wear.

Dean Hansell

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Trying cases in foreign jurisdictions presents unique challenges. Beyond learning local procedures and practices, we must orient ourselves to cultural norms and traditions, expected methods for presenting evidence, and what constitutes acceptable and effective argument. Even then, the magnitude of some practical challenges can still be surprising—as I recently found trying a case truly far from home.

Readying myself for trial in American Samoa, I developed enhanced respect for our astronauts preparing for their inaugural trip to the Space Station, where the nearest hardware store is 31,000 miles away. Many of the law office conveniences we take for granted were not to be found. Forget about newer technologies such as an Elmo; the availability of simple supplies like exhibit tabs, poster paper, an easel, and sticky notes could not be assumed. While my local counsel was helpful in identifying what resources I could expect to find locally and what I would need to bring with me from Los Angeles, it was sobering to consider that the closest legal supply store was 2,000 miles away in Auckland, New Zealand.

The local transportation was equally unreliable. The first morning before our preliminary hearing, my rental car had not one, but two flat tires. “I remember that car,” said my local counsel sympathetically. “It did the same thing to me. In fact, I think it was the same two front tires.” With that, we moved my boxes to the back of his old pickup truck and headed off to court.

Available Law Is Good Law

Internet reception in Polynesia is spotty at best. Perhaps that explains what I learned about legal authority: If the High Court owned a particular law book, it was good law. We recorded the titles of the books at the courthouse and cited primarily materials that we knew the American Samoa judges could access. Arguing about the law was made all the more interesting because, in a jurisdiction of only 55,000 people, there are many topics for which there simply is no local American Samoan authority or jurisprudence.

My trial involved a suspicious fire in an ostensible computer chip factory. The fire took place just after issuance of a large policy insuring the facility. The “factory” looked more like a two-car garage—very little equipment and certainly nothing that resembled a computer chip. Regardless, the claim came in seeking the full policy limits soon after the policy was issued.

At deposition, I asked the factory owner why there were no receipts for the claimed $3 million in computer chips. The reason, he testified under oath, was because of how those chips arrived on the island. “How was that?” I asked. “The answer is obvious,” he replied with a smirk. To avoid the high tariff for goods entering the territory, his friends brought the chips to the island in their suitcases. Of course.

To prove at trial that there were no computer chips at the time of the fire would have been factually complex; instead, I wanted to argue that there was no insurable interest in smuggled items. But my local counsel warned that argument would never work because there was no insurable interest doctrine in American Samoa law. Neither the local judges nor the local lawyers have ever heard of insurable interest, he said.

He was right. The American Samoa Bar Association maintains the definitive website containing reported decisions and laws adopted by the Fono, American Samoa’s bicameral legislature. There was no reported case law on the topic of insurable interest.

I learned that when there is no statute or case law on point, American Samoan courts look to the case law of courts on the West Coast of the United States. We found an Oregon case directly on point. At one time, it was illegal to own pinball machines in Oregon. After a fire in an Oregon warehouse destroyed a lot of pinball machines, the carrier refused to pay the claim, reasoning that pinball machines were illegal there and so could not be insured. On appeal, the Oregon Supreme Court sided with the carrier, concluding that there could be no insurable interest in an illegal object.

Although American Samoa had no prohibition against owning pinball machines, the High Court of American Samoa judges understood and embraced the analogy. If they ever even existed, computer chips snuck into the territory to avoid the tariff were contraband. Thanks to illegal pinball machines in Oregon, American Samoan jurisprudence now includes the doctrine of insurable interest, and the computer chip portion of the case was eliminated on summary judgment.

To prepare for trial, I needed to learn about the two court systems in American Samoa: the Territorial Court, which deals with tribal disputes such as land ownership and the right to become a village chief when the former one dies; and the High Court of American Samoa. In a sharply divided decision in 1901, Downes v. Bidwell, 182 U.S. 244 (1901), one of a series of related legal opinions known as the Insular Cases, the U.S. Supreme Court announced what it referred to as the “incorporation doctrine,” under which United States territories were considered to be either incorporated or unincorporated. Although “fundamental rights” apply to all territories, unincorporated territories do not enjoy the full benefits of the U.S. Constitution. While due process is a “fundamental right,” the right to a jury trial is not, which is why jury trials do not exist in American Samoa. The American Samoan judicial system is more like the French system, with three judges presiding over the trials and acting as fact finders.

American Samoa is the last unincorporated territory of the United States. Under the reasoning established in the Insular Cases, it is unincorporated because it would be culturally impractical to implement all of the provisions of the U.S. Constitution there. Most real estate on the islands is owned communally by the tribes. Each village is run by a hereditary chief called a matai, whose rule in that area is nearly supreme. The authority of the matai is balanced only by the power of the central government in Pago Pago, and the upper house of the Fono, which consists of 47 titled chiefs (rather than popularly elected senators) and two non-Samoans in the two seats reserved for non-Samoans.

American Samoan High Court

The High Court consists of a chief justice and associate justices, appointed by the U.S. secretary of the interior. It has four divisions, including one each for trials and appeals. Each trial is presided over by a justice, whose pay is the same as that of federal district judges, and two Samoan associate justices. Because the judges wear robes, it wasn’t until my third court appearance that I noticed that they also wear sandals and no socks.

Before my first court appearance, I was told I had two options for my attire. I could wear dress pants, a dress shirt, and a tie—or I could wear lava-lava. Lava-lava are loose fitting cloths worn by the prosecutors and other government attorneys. They are, I was told, particularly well suited for the hot, humid Polynesian climate. Lava-lava are secured around the waist by an overhand knotting of the upper corner of the cloth. Not confident in my ability to keep lava-lava in place on my body during oral argument, I took the safe route and wore a dress shirt and tie. I was warned by seasoned local practitioners, “Don’t wear a suit jacket!” They still tell the story of the “off island” lawyer (unfortunately, also from L.A.) who came to court wearing a green sport coat. It was noticed by all and even commented on by the judges.

While it’s generally better to show too much respect for the court than too little, I received several reminders during trial about just how informal things there are. At first, each time I addressed the court, I rose to my feet. After about an hour, the presiding judge, who smiled broadly and seemed pleased at my respect for the bench, told me I need not stand to speak. While they said the gesture was appreciated, they simply were not used to such things.

When I got my turn to cross-examine the computer chip factory owner, he quickly turned hostile. At one point, he started pleading for help from the bench. “This man is killing me with his mean questions,” he called out. “I have a heart condition and this man will kill me right here and now if he gets away with asking me his rotten questions.” The presiding judge observed that the witness appeared sturdy and healthy, and ruled that my questioning could continue.

Then opposing counsel announced that he would be the next witness. He said that I had wrongly damaged his client’s reputation and that he would be able to vouch for his client’s fine character. He added that he also could testify to what he had seen at the factory directly after the fire. My protests that the lawyer was not on the witness list, had not been deposed, should withdraw as counsel, and would result in a waiver of the attorney-client privilege by testifying were to no avail. I must admit it was the first time I’d had an adverse counsel take the witness stand mid-trial, but in my humble opinion, his rambling testimony added nothing to his client’s case.

I encountered one other awkward moment aboard one of the infrequent flights each week from Honolulu. I had won the trial and the other side had appealed. There is an appellate term each year in which the presiding justice of the High Court Appellate Division is joined on the bench by two judges from the Ninth Circuit appointed by the secretary of the interior and two associate Samoan judges. I was on my way to the oral argument.

Soon after I was seated on the plane to Pago Pago, I started chatting with the woman sitting next to me. Talk about family and the weather soon led to questions about work. I realized that my seatmate was one of the appellate judges before whom I would be appearing in three days. I quickly explained the dilemma and moved seats.

Trying cases in far-away jurisdictions can be challenging and amusing. To be an effective advocate, however, take the time to learn the local customs and traditions, the limitations on what is locally available, how best to introduce evidence, and how to argue the law. Hire good local counsel and consult with them carefully. Above all, don’t be the lawyer in the green sport coat.

Dean Hansell

The author is a partner with Hogan Lovells US LLP, Los Angeles.