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Litigation Journal

Spring 2024 | Joy

The Innocent Abroad

Kristin Elizabeth Bender


  • Late nights and early mornings were a small price to pay for the exposure provided by time in London.
  • The author was able to deepen her litigation experience while supplementing with an international forte.
  • Practicing abroad led to assessments of global data privacy restrictions.
  • Work included a surprising but very interesting amount of INTERPOL work, and intermittent due diligence in private equity deals.
The Innocent Abroad
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I must confess that I had not read a word of Mark Twain’s The Innocents Abroad until very recently. I further confess that I still have not read all the words. But in working up a title for this piece—and here I flash the reader a peek behind the brocaded editorial curtain of this very publication—our editor in chief suggested that the book’s title would fit snugly with my then to-be-written perspective piece on litigating in London. If it’s not too cheeky? she asked. Oh, the title is just cheeky enough, I assured her, without full confidence that I had heard her correctly.

Twain’s book is cheeky, too. In broad strokes, which is the most I can provide you after a diligent thumb-through, it is actually hilarious. As he passes through foreign lands such as Italy and Sicily, Turkey, Greece, Russia, and on to the Middle East, his accounts are sage, irreverent, and witty. I commend to you his account of an afternoon Turkish lunch. But enough about Mark. For all his escapades through Europe and the Holy Land, he never broached the more niche topic of what it looks like to practice litigation abroad, the substantive and cultural differences in the industry that stem from being on one side of the ocean or another, or the hilarity and tribulations that from time to time ensue. I will pick up where he left off.

Ready for a Change

A few summers ago, I decided that I was ready for a big change. The contours of that change were a complete mystery to me. Hot on the heels of back-to-back-to-back trials that I found both invigorating and glamorous, I knew I wanted to continue with litigation. So I was left to contemplate how to make the change without upending my entire career. I distinctly recall sipping an Aperol spritz under a gorgeous tent at a dear friend’s wedding when the lightbulb turned on (or the prosecco hit): If I wasn’t going to change what I was doing, I could change where I was doing it. A venture to Europe would do nicely—if that were even possible for a litigator?

It was. I interviewed that month and boarded a bumpy plane ride to Heathrow in the spring. I had sent out a few feelers to Magic Circle firms and, roguely, a firm in Australia, before securing a position at a wonderful firm (my current one) that, for whatever reason, was willing to have a conversation with me. I got totally lucky.

My new role had been created to provide associate support for international investigations most conveniently run in the time zone of the United Kingdom (U.K.). Over the years, the position had also come to be an unofficial ambassadorial posting of sorts, meant to forge international relationships across the offices. In keeping with the job’s origin, it had been decided that I would prioritize investigations and divide what hours were left between U.S. litigation and international arbitration. We assigned the split something along the lines of 50-30-20.

Comparing National Legal Systems

But we were no fortune tellers, and this was not to be. The investigations and arbitrations were largely quiet for most of the time I was abroad. As a result, while I pitched in on those types of matters here and there, what I mostly did for two and a half years was practice U.S. litigation from London. This, in turn, gave me the chance to make apples-to-apples observations as between the U.S. system that I was immersed in and the U.K. and European foreign systems that swirled around me. The deltas between these systems, whenever they intersected, are what stand out to me the most.

Early in my tenure abroad, I was supporting a Hague Convention deposition in which our client was a third party to one of the biggest art fraud cases in history. We’re talking Degas, Matisse, Picasso, Renoir, and Rodin. The issue with the deposition was that our client was a Swiss-barred lawyer, and under Swiss law—if you can believe it—nearly everything up to and including the fact of the attorney-client relationship is privileged. One would think the deposition under this framework would be easy to defend, except Swiss law did not apply to all the relationships implicated. Moreover, none of us non-Swiss lawyers (and least of all the shell-shocked questioning attorney) could quite believe the scope of the Swiss law when it did apply. Objections posed to the court-appointed neutral (a Swiss lawyer) went flying left, right, and center by small armies of U.S., U.K., and Swiss attorneys, each of whom most certainly left the deposition at day’s end with his or her hair blown back. I left the deposition with an understanding that the practice of law in the 21st century is not so siloed across jurisdictions as it might once have been.

My role on that case led to more Hague Convention work, and it also led to a massive coordination across our firm’s offices to assemble a client-ready explanation of cross-border privilege and work-product doctrine. Let me tell you: U.S. attorneys should not assume that the protections we generally consider to apply will be remotely similar in the international offices of clients. From Germany, with its absence of privilege in relation to in-house legal advice; to France, with its rule that clients cannot waive professional secrecy; to the U.K., which recognizes limited waiver but generally does not regard interview notes as privileged; to Italy, with legal professional secrecy applicable only to members of the Italian bar—the rules diverge in significant and sometimes surprising ways. This exercise made clear that clients with international offices should be picking up the phone before internal legal work commences and that external counsel should be enlightening existing clients and prospective clients as to the substantial protective advantages of their engagement. Until this comparative assessment, I had not appreciated how deeply cultural values are reflected in the legal systems of countries across the world, although it may seem obvious. Their divergent approaches to protecting, or not protecting, materials that a U.S. lawyer typically would view as constituting the epitome of privileged content are just one important example.

Practicing abroad led me into other international realms, including assessments of global data privacy restrictions, a surprising but very interesting amount of INTERPOL work, and intermittent due diligence in private equity deals. But between these forays and the various discrete pieces of investigations in their inception or that were sunsetting, I mostly continued on my traditional litigation path. From time to time, this path would veer to the U.K. side of the house such that I would partake in drafting correspondence to opposing English counsel. On more than one occasion, I would assemble what I viewed to be a compelling and generally persuasive letter only to have a not insignificant portion rewritten by a U.K. team member. And here’s the thing: It would say the exact same thing. The distinctive style, though, of a U.K. solicitor—the cordial greeting, the infused-with-class tone, and the respectful closing—elevated any letter to a work of art! I had been in and out and very brass tacks. My colleague’s version was, to my American taste, pulled straight from George Eliot’s MiddlemarchWhat do we live for, if not to make life less difficult to each other? I never could fully replicate the style in a way that did it justice. It did not compute.

Cultural Education

The cultural education outside of the office was at least as poignant, due to what I’m sure was a combination of the extended acclimatization and, from time to time, mild embarrassment. I started to dress the U.K. part after showing up to a work retreat in sportswear complete with baseball cap, only to have a work colleague dressed in a tweed sport blazer and slacks shout across the terminal floor: “Spot the American!” Everyone took the time to look, and they really could spot me quite easily. I began to speak properly or, more precisely, with gusto. I started using such gems as “moreish” (so tasty you want more), “faff” (an inconvenience or unnecessary hassle), and “torch” (flashlight), and became used to such phrases as “taking the mickey” and “chuffed to bits.” I began to read people or at least to understand how they were reading me. Broadly speaking, Europeans have strongly held views of a fatal flaw associated with each of their European neighbors, and those views extend to Americans as well. Americans are generally regarded positively but as too friendly to be immediately trusted. They also all have good teeth and, naturally, attended high school in a 1990s movie. Last, I began to complain like an Englishman. One must admit that living abroad is just so darn inconvenient in ways—where were the screens that are meant to be on windows, how was there no ice in coffee shops, and speaking of faffs, why were there no outlets in the bathrooms (was I to dry my hair in the kitchen)!?

Inconveniences aside, I had also been more seriously concerned that moving abroad to litigate from London would negatively affect my career trajectory. I ultimately resolved that a year or two delay in advancement would all be worth it when balanced with international experience, but this potential setback was my single most important worry when weighing whether to move overseas. There are real challenges to working five hours ahead of your colleagues in an industry that values availability and responsiveness as much as or more than any other quality. I was concerned that I would have zero “face time” with my teams and that I was at a disadvantage to pursue those coveted mid-level roles—depositions, in-court appearances, client events. And as things shook out, I did nearly always feel guilty about not working, whether at 9 a.m. (with my U.K. colleagues—but at 4 a.m. in New York!) or at 9 p.m. (only 4 p.m. for my U.S. cohort!).

But oh, I am glad that I did. Late nights and early mornings were a small price to pay for the exposure provided by my time in London. I was still staffed on cases and, in fact, was effectively as available to a team in New York as in Washington, D.C., or San Francisco. I found ways to manage my schedule. I had wanted opportunities for depositions and client events, and so I pursued and attended them. Sure, the plane ride was longer, but people appreciated the effort. I was able to deepen my litigation experience while supplementing with an international forte. I still meaningfully connected with colleagues across stateside offices in ways that kept me motivated while remote. Through this experience, I’ve reached the conclusion that when circumstances allow, one should simply go for it. That assessment is wholly individualized. It may mean seeking out oral argument or taking an unexpected career-changing pivot. Whatever it means for you, if the opportunity strikes a chord, things will work out and you’ll be better for it.

Twain denominated his voyage a “great pleasure excursion.” He can keep that; I’m still working up my own subtitle. But no matter what we call it, I’ll readily describe my time abroad as some of the best spent in my life. All credit goes to a wild-haired idea, a professional opportunity, and well-timed risk.

Kristin Bender can be reached at [email protected].