The Debate Continues Over the Use of Expert Witnesses To Prove Non-U.S. Law Under Fed. R. Civ. P. 44.1.

Sensing a possible trend away from the Second Circuit’s openness to the use of expert affidavits to prove non-U.S. law, even those filed for the first time on appeal, we have twice recently posted analyses of decisions of Southern District of New York judges commenting on the potentially less-than-useful phenomenon of using expert affidavits or witnesses to prove non-U.S. law (see posts of 8/2/10 and 9/3/10).  The Seventh Circuit’s recent decision in Bodum USA, Inc. v. La Cafetiere, Inc., No. 09-1892 (7th Cir. 9/2/10), presents three extensive and scholarly treatments of this topic. 

The majority decision was authored by Chief Judge Easterbrook; separate concurring opinions were authored by Judges Posner and Wood.   The appeal involved determining French law, and both parties offered the declarations of French law professors or other proffered experts in French law.  The breakdown of expressed views is as follows:

  • Judge Easterbrook acknowledged that expert declarations may be essential in cases where non-U.S. statutes or decisions are not translated into English “or glossed in treatises of other sources”.  Otherwise, the Judge was not keen on the use of expert affidavits, describing them as not only adding cost but also adding a layer of “spin” that the reviewing U.S. court must then discount.  The Court of Appeals here went on to review French statutes to determine to what extent “intent” could vary unambiguous contractual language.
  • Judge Posner, continuing a criticism begun in Sunstar, Inc. v. Alberto-Culver Co., 586 F.3d 487, 495-96 (7th Cir. 2009), writes at length about the downsides of using non-U.S. lawyers, law professors, etc. to try to establish non-U.S. law.  The Judge says, for example, that such witnesses “are paid for their testimony and selected on the basis of the convergence of their views with the litigating position of the client, or their willingness to fall in with the views urged upon them by the client”. 
  • Judge Wood, by contrast, not only disagrees with any suggestion, if there was one, that Fed. R. Civ. P. 44.1 established a hierarchy for sources of non-U.S. law; in addition the Judge focuses on the practice problems facing a district court to figure out the “nuances” of non-U.S. law without the help of – yes, even a paid – expert.  Judge Wood also parted company with her colleagues to the extent any analogy would be drawn to determining the law of a state or territory of the U.S., where it is settled that the court should determine the law without expert testimony. 
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